Common Law Marriages and the Estate Process
Question: I'm a female living in Massachusetts.
I've lived with my partner (male) for twenty five years.
I've wanted to get married all this time but he doesn't believe in it.
He wrote a will and had it notarized five years ago by one of the accountants at work who was a notary public leaving everything to me if something were to happen to him.
(house, 401k, mutual funds, life insurance,etc.
) Is this a legal document? Thank you Answer: Is it a "Legal" document? Well,certainly it is not illegal to draft a will.
Does it Follow a Legal Standard? The legal standard for a "Will" is not very high so even without reading it,I can say the it would probably be a accepted as a Will in Massachusetts.
Will it hold up? which I think it really your question.
To that I'd have to say the jury is still out.
Literally.
You see; A Will,is only a list of suggestions to the Probate Court.
Whether there was a will or not,if he were to die,his estate will go through Probate (proving the will).
If he dies without a will the probate court has a standard hierarchy of distribution: It all goes to the surviving spouse,if there is no surviving spouse then it goes to the kids,if there are no kids it goes to the parents,if there are no parents it goes to siblings,if no siblings,then nieces and nephews,etc.
And most people's Wills follow that same logic,so the vast majority slide through the Probate court as stated in the will.
And if you lived in almost any other state than Massachusetts you'd have no worries since you'd already be considered married under the common law.
But you knew all that.
Now if you moved to an adjoining state for a few years, then you would be on the road to more solid footing,but that is a whole lot of hassle for what really is very little potential benefit.
So what happens if the will does not follow prescribed standards of distribution? Then the personality of the court plays heavy,as does any opposition.
If anyone "contests" the will the probate court would have to consider the points of objection.
Either dismiss them as having no merit,or compromise something they think is fair,or throw out the will all together and go back to "no spouse,give it to the kids; if no kids,give it to the parents;...
If you wanted to avoid the probate process then a Living trust would be a better option.
If you haven't been to a living trust seminar,It is a great way to get a free meal.
Don't buy.
No-one can do a good living trust for you.
The only person that can do a good living trust for you is...
You expected me to say that I could,huh? The only person that can do a good living trust for you is...
YOU.
To make it a good living trust you have to fund it.
that means transfer assets,including bank accounts.
Well,I can't transfer them,your estate planner can't transfer them,nor can your attorney,in fact no one but you even knows what the assets are.
AND to make it a good living trust,it has change over time,and you are the only one that knows how it needs to change.
Get a book,or two,do some research,go to a few living trust seminars.
Find out what you can truly expect from it.
then write your own.
Don't be scared,there is not requirement to use Latin or Olde English.
It needs to be understandable,and judging from your writing abilities that I've already seen,you are capable.
A kit is a fine starting point.
Remember,you can always change it,you're not writing it in stone.
I've lived with my partner (male) for twenty five years.
I've wanted to get married all this time but he doesn't believe in it.
He wrote a will and had it notarized five years ago by one of the accountants at work who was a notary public leaving everything to me if something were to happen to him.
(house, 401k, mutual funds, life insurance,etc.
) Is this a legal document? Thank you Answer: Is it a "Legal" document? Well,certainly it is not illegal to draft a will.
Does it Follow a Legal Standard? The legal standard for a "Will" is not very high so even without reading it,I can say the it would probably be a accepted as a Will in Massachusetts.
Will it hold up? which I think it really your question.
To that I'd have to say the jury is still out.
Literally.
You see; A Will,is only a list of suggestions to the Probate Court.
Whether there was a will or not,if he were to die,his estate will go through Probate (proving the will).
If he dies without a will the probate court has a standard hierarchy of distribution: It all goes to the surviving spouse,if there is no surviving spouse then it goes to the kids,if there are no kids it goes to the parents,if there are no parents it goes to siblings,if no siblings,then nieces and nephews,etc.
And most people's Wills follow that same logic,so the vast majority slide through the Probate court as stated in the will.
And if you lived in almost any other state than Massachusetts you'd have no worries since you'd already be considered married under the common law.
But you knew all that.
Now if you moved to an adjoining state for a few years, then you would be on the road to more solid footing,but that is a whole lot of hassle for what really is very little potential benefit.
So what happens if the will does not follow prescribed standards of distribution? Then the personality of the court plays heavy,as does any opposition.
If anyone "contests" the will the probate court would have to consider the points of objection.
Either dismiss them as having no merit,or compromise something they think is fair,or throw out the will all together and go back to "no spouse,give it to the kids; if no kids,give it to the parents;...
If you wanted to avoid the probate process then a Living trust would be a better option.
If you haven't been to a living trust seminar,It is a great way to get a free meal.
Don't buy.
No-one can do a good living trust for you.
The only person that can do a good living trust for you is...
You expected me to say that I could,huh? The only person that can do a good living trust for you is...
YOU.
To make it a good living trust you have to fund it.
that means transfer assets,including bank accounts.
Well,I can't transfer them,your estate planner can't transfer them,nor can your attorney,in fact no one but you even knows what the assets are.
AND to make it a good living trust,it has change over time,and you are the only one that knows how it needs to change.
Get a book,or two,do some research,go to a few living trust seminars.
Find out what you can truly expect from it.
then write your own.
Don't be scared,there is not requirement to use Latin or Olde English.
It needs to be understandable,and judging from your writing abilities that I've already seen,you are capable.
A kit is a fine starting point.
Remember,you can always change it,you're not writing it in stone.
