Intestate or Testate

A person who dies with a Will is said to have died testate. A person who dies without a Will dies intestate. In either case, the person who dies is called the decedent, and the property the person leaves at death is called his or her estate.

It is always preferable to have a Will. A Will states your preference as to the disposition of your estate. A Will can and should be changed as your circumstances and preferences change. Even if one takes measures to avoid probate, a Will should be implemented as a back-up for any possible assets that may be missed or acquired after planning has been completed. A Will should always be drawn up by a qualified attorney familiar with your financial circumstances, family situation and your wishes for your estate.

Intestate (No Will)

When a person dies without a Will the law decides how, by whom, and to that person's estate Will be distributed. Persons receiving property are called "distributees." The person in charge of distributing the estate is the "administrator." Some property may pass automatically or outside the estate, such as joint accounts, accounts that are "in trust for" another person, or property in a lifetime or living trust. However, this property is still in the taxable estate and will be taxed.

Under Massachusetts laws of intestacy, if the decedent has no children and leaves a spouse, the spouse takes all. If the decedent leaves a spouse and one child, the spouse receives $200,000 plus one half the balance. Massachusetts laws of intestacy are complicated and should only be interpreted under the guidance of a qualified attorney.

The administrator is the person who will take charge of collecting and distributing the property of the person who dies without a Will. The law decides who shall be the administrator in an order similar to the order distributees inherit as described above. The administrator petitions the court for letters of administration. These are authority from the Probate Court Judge to act on behalf of the estate. Banks, brokers and transfer agents can then transfer property from the name of the decedent into the name of the estate. The administrator after paying funeral expenses, debts, and taxes can then distribute the property to the distributees in the shares provided by law.

Testate (With a Will)

With a Will a person has control over how and to whom his or her property shall be distributed after death. There is one exception, you cannot disinherit a spouse. By law a surviving spouse where there are no children can elect to receive one half the net estate or one third where there are children, even if he or she was left less under the Will or through various testamentary substitutes (joint accounts, trusts, etc.).

In a Will, the decedent names an executor to collect, administer and distribute the estate. The executor may be a relative, friend or even a trust company or a bank. The executor or executrix (if female) selects a lawyer to assist in probating the Will.

The attorney on behalf of the executor files a probate petition with the Probate Court requesting the certificate of appointment. The executor has the power to transfer stock, bank accounts and other property into the name of the estate. The executor first pays funereal expenses, debts and taxes and then distributes in appropriate shares the estate to the persons named in the Will.

A Will is also important not just to convey property as you desire, but for other matters. For example, you can indicate your preference for the guardianship of minor children. A Will can also incorporate various tax planning techniques.

The person executing a Will (the testator) must decide where the original Will be kept. Some attorneys at the client's request keep the original Will in their safe or in an attorney's safe deposit box at a bank. Other attorneys give the original Will to the client. In either event, the original must be kept in a safe place which is easily accessible when the testator dies. If the testator does not keep the original, he or she should have a copy clearly marked where the original is kept.