Attorney Mayo Talks Law - Plans for the Unthinkable

Wills, Part 2 - The situations we hate to contemplate...
Jonathan D. Mayo, Esq.

As John Steinbeck once noted, our "best laid plans" can often go awry.  Such is the case when estate plans fail to provide for the unthinkable. Spouses can die simultaneously. Those poised to inherit under a will may pass away before that will is probated. Children of the deceased may need guardians. Alternative executors, (personal representatives) may need to be named when initial choices are unwilling or unable to serve.  Heirs may bicker about the distribution of items of personal property. Paying careful attention to these and other contingencies is part and parcel to a thorough estate plan.

Simultaneous Death of Testator and Beneficiary

Once can imagine the confusion that might arise where a testator, (one who makes a will), dies simultaneously with a beneficiary, (one who inherits under that will). Most often this might occur between spouses, who have left each other their respective estates under reciprocal wills. It could be that the parties die within a few seconds of each other, or order of death cannot be ascertained. Massachusetts Law deals with this by creating a presumption, that unless "established" otherwise, a beneficiary is deemed to have died before the testator. Wills can be written so as to override the "simultaneous death statute" by requiring that a beneficiary must survive the testator by a certain number of hours. (Most often 120 hours) This helps to avoid painful analysis as to the final moments of parties, and provides more certain standards to follow. 

Issues Where the Beneficiary Predeceases the Testator.

In instances where a beneficiary dies before a testator, an instant question arises as to where the gift should go.   It is critical that will provisions provide contingency plans for gifts. For example, one might offer a gift under their will, "To A if she survives me, and if A does not survive me, then to B, and if B does not survive me then to C..." In the absence of such specific plans, Massachusetts law will come into play and the gift to the predeceased beneficiary passes on to their heirs. Most testators would prefer more specific control, which contingent language yields.

Personal Representative Alternatives

Where it is standard in wills to name our preferred executor, (known as "Personal Representative" or "PR" in Massachusetts,) it is critical to name alternative PRs in the event that our chosen PR is unwilling or unable to serve. Three or four ordered alternatives are ideal. One should be sure to confirm that the people chosen are suitable for the position of PR. (Trustworthy and bond-worthy.) Also, one should think of those family members and associates who they would NOT want to serve as PR for one reason or another, and state those exclusions in their will as well. Although expressing PR choices does not guarantee that a particular person will or will not be one's PR, the testator's choices will be given certain weight before the Probate Court when a Petition for Appointment of a PR is filed.

Naming Guardians and Alternates.

Where a testator has children, or other individuals under their care, it is important to name guardians in the will. Just as with PRs, one should name 3 or 4 ordered choices. One should also state the names of those who they would like to see excluded from consideration as guardians for their children, or for others under their care.

One might also consider naming other fiduciaries, such as conservators, as circumstances might demand. However,   the naming of guardians and other fiduciaries in the will does not by itself confer the legal authority of the named parties to act in those chosen capacities. Courts must confirm by petition.  But the court will give due weight to the testator's wishes in hearing petitions for guardianship. So thorough discussion of guardians, fiduciaries, alternatives and exclusions should be present in one's will.

Making a List of Personal Property

Another estate planning hazard that often lies below the radar, is eventual bickering among beneficiaries over items of personal property in an estate. Massachusetts law allows testators to address this possibility through the creation of a list, maintained separately from the will, which describes specific items of personal property in the estate, and to whom those items are to go. Testators can even seek input from beneficiaries, seeing who wants what, and hopefully reaching some middle ground that mitigates future conflicts.

In Conclusion:

Although this post may contain notes and opinions on the law this content does not constitute legal advice, nor create an Attorney-client relationship between readers and writer. Readers should consult a qualified attorney before taking on matters of estate planning.


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