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When There Is No Will

For those of you who have read past columns, you know that a Power of Attorney authorizing a person to manage your money while you are alive is often more important than signing a Will.


However, it remains important to have a properly crafted Will just in case you die while owning property or some other right solely in your name. For example, if a person dies as a result of someone’s negligence. Who has the right to serve as the decedent’s plaintiff in a lawsuit? Doing your Will and dealing with your finances is immensely important in second marriages.


Here are a few examples of situations where the elder could have saved his or her family a great deal of grief by taking care of his financial and legal world: (1) Husband owns life insurance stock in his name issued because he owned a policy. Never added wife. Upon his death wife forced to Probate his estate (which had about $300,000 in joint bank accounts) just because of $7,000 in stock. (2) Mother transfers house to children to avoid nursing home costs and probate. One child suddenly dies leaving no wife, children or Will. That child’s portion is inherited by mother who is in nursing home and puts the house back in jeopardy. Her son should have had a Will since he had an ownership interest in the house. (3) Elder refuses to do a Will even though he has a disabled child. Dies without a Will. Probate court will appoint advocate on disabled child’s behalf. Cost comes out of that child’s inheritance. The inheritance then puts the child’s government benefits at risk because the inheritance was not put in a Trust (4) Husband dies without a Will while owning land in Colrain. Surviving widow mentally incompetent. Children forced to obtain costly and burdensome Conservatorship over their mom. Same result even if property jointly owned, unless wife had Power of Attorney in favor of a child.


It is important that the lawyer drafting the Will know what he or she is doing. Here are two quick examples of when he didn’t: (1) Elder has no family. Will leaves his property to two women who have been good to him. Lawyer never made provision for the unlikely event that elder would outlive both beneficiaries. He did. By then he was incompetent and could not do a new Will. The children of the beneficiaries did not get their respective mother’s inheritances. The state did. (2) An elder’s Will said bank account #123 would pass to her step grandchildren. At her death there was plenty of money. But none of it was in that account. Those beneficiaries were out of luck. Always safer to leave percentages rather than specific accounts or amounts. And always have a back up to the back up. Name A as Executor and/or beneficiary. Then go down the line: if not A, then B. If B isn’t around (alive) then C and so forth.

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