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What is a Will?

A will is a written instrument controlling the disposition of an individual's property at death. The laws of each state establish the formal requirements for a will. In Massachusetts, as a general rule:

• The maker of the will (called testator) must be at least 18 years old.
  

• The maker of the will must be of sound mind.
  

• The will must be written (there are specific, limited exceptions).
  

• Two competent persons must witness the will in a special manner provided by law. A beneficiary of a will or spouse of a beneficiary should not be a witness, because the beneficiary may lose benefits under the will as a result.
  

• The technical formalities required for the execution of a will must be followed precisely.

How Does One Make A Will?

The drafting of a will is complex and involves the making of decisions requiring professional judgement which can be obtained only by years of training, experience and study. Only the practicing lawyer can avoid the innumerable pitfalls and advise the course best suited for your individual situation. The "printed form" will may not suit your situation and your needs it could create more problems than it solves.

How Often Should a Will be Reviewed?

A will is valid until it is changed or revoked, and it may be changed or revoked as often as you wish. Changes in your family, changes in the amount and kind of your property and changes in tax laws may require changes in your will. A will should be reviewed at least every five years, somewhat like having a periodic medical examination.

What is the Effect of Marriage or Divorce on a Will?

Marriage revokes as will in its entirety unless it is expressly contemplated in the will. Divorce or annulment revokes only the disposition of property to (or fiduciary appointment of) the former spouse, as though he or she has predeceased the testator, unless the will expressly provides otherwise.

What Happens to the Decedent's Property When there is No Will?

When a decedent dies without a will ("inestate"), his or her property is distributed to his/her heirs at law according to statutory formula. The laws are inflexible and make no exceptions. The law provides that after payment of the expenses of administration, funerals, last illness, debts, taxes and any family allowances, the decedent's property is divided as follows:

• If the deceased leaves issue, the surviving husband or wife takes one-half of the personal property and one-half of the real estate. The balance goes to the issue.
• If the deceased leaves issue but no spouse, all real and personal property goes to the issue.
• If the deceased leaves no issue, but there are kindred, the surviving husband or wife takes the entire first $200,000 and one-half of the remaining real estate. The balance goes to the kindred.
• If the deceased leaves no issue and no kindred, the surviving husband or wife takes all of the personal property and all of the real estate.
• If the deceased leaves no spouse, no issue and no kindred, all of his property passes to the state.
• The law makes many other provisions depending on the circumstances.

What Are Estate Taxes?

Estate taxes are a form of death tax levied against the estate of the decedent by the federal and state governments. The tax is levied on any property in which the decedent has any incident of ownership at the time of death, i.e., life insurance, jointly held property, annuities, etc.

A will can provide for substantial estate tax savings by careful planning and the use of such devices as the marital deduction and trusts. A will can also direct how the estate shall pay the estate taxes. The shares of certain beneficiaries may pass "free" of taxes while others may pay their share or more. If there is no will, or no provision in a will, a statute determined the allocation of taxes among the beneficiaries.