Planning for Life

By Harry S. Margolis

A recent decision by the Massachusetts Appeals Court demonstrates the importance, though not absolute necessity, of having your will notarized. In the case In the Matter of the Estate of John J. King (Mass. App. 19-P-1210, September 2, 2020), the Appeals Court overturns a probate court decision rejecting a will that was not notarized, ruling that it should have allowed the presentation of additional evidence as to the will's validity.

By Harry S. Margolis

Those who are fortunate can continue to work virtually during the coronavirus shutdown. Lawyers are largely in that group. We can continue to communicate, draft documents, file papers in court or at the registry of deeds, and even hold some court hearings telephonically. Of course, a conference call or even a videoconference does not have the immediacy of an in-person meeting, but it's possible to keep moving forward.

One challenge for estate planning attorneys is how to assist clients with executing their documents, which we had almost always done in person in the past. Here are a few solutions or "work arounds" we've come up with so far:

By Harry S. Margolis

Most estate planning attorneys take on the responsibility of holding their clients' original wills and other documents. They do this for two reasons. First, they are often better equipped to keep the originals safe where they can be found when needed. Second, there's the hope that when the time comes, the client's family will return and engage the attorney or her firm to help probate the client's estate. Many law firms see their file cabinets as goldmines, or at least as insurance that they'll always have business in the future. This is especially the case, since many charge very low fees for preparing estate plans and higher fees for assisting with probate administration.

But this practice of holding original documents raises a number of questions that are seldom asked and answered. These include the following:

By Harry S. Margolis

When you die, your possessions will go to your heirs. Savings and investments are easy to divide up, since they can be turned into cash. While real estate is more difficult, it can be turned into cash by selling it or co-owners can share it. But the most difficult items to divvy up are your personal possessions—silverware, dishes, artwork, furniture, tools, jewelry—that are unique rather than fungible. In legal speak, these are known as "tangible personal property" and can become the focus of family feuds, often one or more children claiming that a parent had promised them a particular item.

By Harry S. Margolis

There is just one exception to the American rule that you get to choose who gets your property after you die. As long as you're competent, you can give it to anyone—the postman, your babysitter from when you were a child, or the person who picked you up hitchhiking in the rain.

The one exception is protections for your surviving spouse. In Massachusetts, this is found at M.G.L. Ch. 191, Sec. 15. This is an odd, anachronistic law in that it creates a big distinction in the rights of the surviving spouse depending on whether the decedent's estate is worth more or less than $75,000.

By Harry S. Margolis

What constitutes a will? According to Massachusetts law, which is similar to the law in all states, wills must be in writing and signed by the "testator" and two witnesses.

However, the law also permits other writings to serve if the:

Intent that the document constitute the testator's will can be established by extrinsic evidence.

This means that a separate writing that does not meet all of the traditional requirements of a will may be admitted as a will by the probate court if there's other evidence that the decedent intended the document to serve as her will.

By Harry S. Margolis

In the United States, we get to decide who gets our assets when we die, our children, our spouse, charities, or our hairdresser. The only exception is that, absent a prenuptial agreement, spouses have the right to "elect against the will" to get at least a minimum inheritance. This "spousal share" in Massachusetts is relatively meager—$25,000 plus an income interest in half of the remaining estate if the decedent had no surviving children or grandchildren or an income interest in a third of the remaining estate if the deceased spouse did have surviving children or grandchildren. No one else has any rights to the estate at all.