When someone passes away, a will indicates the way in which certain property should be distributed, and may also designate a guardian and conservator for minor children. Only probate property passes under the direction of a will, meaning all property owned solely by the deceased. Property owned jointly with another individual, property that passes by way of a beneficiary designation, or property that is owned by a trust is not directed by a will (and is often called “non-probate property”).
Wills can come in many different types but three that we routinely utilize are a basic will, Will with a testamentary trust, and pour over will:
A basic will provides your personal representative or executor with instructions as to how your property should be distributed. While this form of a Will may seem simplistic, the waiver of sureties by the person you nominate as personal representative and granting them the power to sell real estate can make the administration of your estate much easier and less expensive.
When minor children are involved, the will may contain provisions to create a testamentary trust. Such a trust ensures that, if property is left to a beneficiary who happens to be younger than a certain age upon your death, that property is not distributed immediately, but instead held in trust by a designated trustee. Think of a testamentary trust as a contingent trust that only springs into being upon your death if certain conditions exist. The trustee will supervise the distribution of property to the beneficiary once the beneficiary is of an age specified in the document. Testamentary trusts are useful not only for minors and young adults, but they may provide creditor protection for beneficiaries who may not be able to manage their funds responsibly, or to protect assets left for a beneficiary currently receiving, or who may soon receive, MassHealth or Medicaid benefits.
Pour Over Will
A pour over will is used when integrating a last will and testament with a trust that was established by the person during their lifetime. A pour over will instructs the personal representative to distribute any property passing through the probate estate to the person’s trust. Often we are asked, if I have a trust why do I need a Will? A basic pour over will ensure that if upon your death an asset is discovered that is not in your trust such asset will land in the trust by way of the will and be administered in a consistent manner according to your wishes.