Will Attorneys in Melrose, MA

Assisting Individuals Planning For the Future

It is a common misconception that when an individual dies, assets such as their home, automobiles, and other personal property will automatically transfer into the possession of their loved ones. However, there are certain circumstances where this is not the case. If an individual dies without leaving a will, there can be a long, drawn-out period in which the will must go through the process of probate. Even worse, when a person dies intestate, the chances of conflict during the settling of their estate drastically increase.

One of the most important steps you can take to protect your family is to create a will so that there will be no uncertainty or confusion about your final wishes after you pass away. A will can stipulate many issues, such as the distribution of assets, funeral arrangements, and guardianship of any minor children.

Are you starting your estate planning process? Do you need help understanding how to draft a will or implement other estate planning legal services to ease the burden on your loved ones? Contact Martino Law Group, LLC, today to find out how we can help you plan for your family’s future. Call 781-531-8673 today.

What Makes a Will Valid in the State of Massachusetts?

In order for a will to be considered valid in Massachusetts, certain factors must be present. First, the individual creating the will, the testator, must be at least 18 years of age and considered to be of sound mind. In order to be considered legally of sound mind, the testator must understand the purpose of the will, the nature of the property that they own, and which individuals could claim their property.

If these conditions are successfully met, then more legal considerations must also be present for the courts to consider the will to be valid.

The will must be:

In writing.
Signed by the testator or by another individual in the testator’s name in the presence of the testator and at their direction.
Witnessed and signed by at least two witnesses.

Any individual who is at least 18 is qualified to be a witness if they are considered to be generally competent. In simplified terms, that means that a witness has the ability to testify regarding the circumstances that surround the will should it become necessary.

What Happens When Someone Dies Without a Will?

Dying without a will is also called dying intestate. An overwhelming majority of Americans die without a will every year, leaving their families to sort out their estate. When someone dies without a will, they essentially leave their estate rudderless and without guidance.

Some issues that arise when a person dies intestate are:

Disputes of other settling of their estate.
Concerns that the decedent disinherited a family member.
Unfair distribution of assets if the decedent had a partner but was not married.
Someone being named the personal representative that the decedent would not have chosen.
Delays in the probate process, especially when disputes can’t be resolved.
Creditor claims may be forgotten, causing financial issues down the line.
Assets are not properly inventoried or valued.
Unforeseen legal issues.

A will is the first step in estate planning. Taking the time to put down on paper how you would like your estate managed and distributed after your death will almost assuredly reduce the stress placed on your family. Call our law firm for a free consultation where we can assist you with your estate planning needs.

Who is Eligible to be Appointed as a Personal Representative of an Estate?

A personal representative, commonly known as an executor of a will, is appointed by the court to manage, collect, and transfer estate property to the rightful heirs and beneficiaries of an estate.

In cases where the decedent died and left a will, the individual who has legal priority to be named as the personal representative of an estate is the person who was named as such in the will itself. The court will still need to determine if the will is considered to be valid. If the individual named in the will is determined to be qualified, they will be appointed over any other individual.

If the decedent died and did not leave a will, the surviving spouse is considered to have legal priority. If the decedent was not married when they passed away, legal priority then falls to the decedent’s legal heirs: their children, siblings, and other family members.

What are the Grounds to Contest a Will?

In order for a will to be legally contested, certain conditions must be met. They are as follows:

The deceased lacked the mental capacity to compose a will: If it can be proven the testator of the will was unable to understand all of the conditions necessary to create a will, then the will may be ruled invalid by the courts.
The deceased did not properly understand and approve the content of the will: Some factors included in this can be if the testator was hard of hearing or visually impaired, frail or unwell, lacked the general ability needed to read and understand the will, or supposedly directed that the will be signed by another individual.
Undue influence was exerted: If it can be proven that the testator was forced against their wishes to compose or sign the will, then this could be potential grounds for having the will declared invalid.
Forgery and fraud: If there is any doubt that the signature on the will is genuine, it is best to retain the services of a handwriting expert who can authenticate or disprove its validity. If it is determined that the signature is a forgery, then the will is considered to be invalid.
Rectification: There may be clerical errors included in the will that cause it not to reflect the wishes of the deceased accurately. If this is the case, the court will be obligated to rectify the will in order to reflect the true intentions of the decedent. These types of claims must be submitted within 6 months of a grant of probate being issued.

What Happens When a Will is Successfully Contested?

When a will is successfully contested, the court may invalidate a portion or all of it. If a previous will meets legal requirements and wasn’t revoked, the court may decide to recognize that as the governing will.

If the probate court cannot find a previously valid will, they may resort to intestacy succession. That means the distribution of assets will be based on the relationship to the decedent rather than their will. Intestate succession prioritizes family members in this order:

Spouse
Children
Parent
Siblings
Continues to extended family

When wrongdoing is discovered, the court may take extreme legal action. Revoking the executor’s powers and seeking legal and even criminal damages are possibilities. Legal representation is necessary when contesting a will.

Do I Have to Hire a Will Lawyer in Order to Create a Will?

You are not required to hire a lawyer if you wish to create a will in Massachusetts. However, it is highly recommended that you speak with a knowledgeable attorney who can advise you regarding issues that must be addressed in a will, depending on your personal life circumstances.

When creating a last will and testament, you should keep in mind that the time after your death will most likely be a difficult and trying time emotionally for your family and loved ones. If a will does not meet certain legal requirements, it may mean more time spent in probate or even result in the will being declared invalid.

All of these issues could cause even more stress for your family, especially if they are dependent upon money or property that they will receive from the will. The attorneys of the Martino Law Group, LLC of Melrose, MA, have extensive experience composing wills and other matters related to our client’s estate planning needs.

Contact our law offices by calling (781) 531-8673 to schedule a free consultation with one of our experienced family law attorneys. With legal representation from an experienced estate planning attorney, you can gain peace of mind knowing your estate and your family are prepared for the future.