More on your last will and testament

Several weeks ago, we discussed the recent changes made in the rules for the descent and distribution of the property of deceased persons. Those statutory rules effectively create a will for people who die without having prepared their own will and generally provide a reasonable plan for the distribution of property to the people the law has traditional considered to be the natural objects of a decedent's affections.  Of course, relying on the default rules for the distribution of property leaves a lot of details unaddressed. It fails to consider who might be an appropriate person to handle the details of estate administration; the person historically called an executor, but now called a personal representative.  It fails to address the needs of minor children, including the potential need for guardians, or to deal with the possibility of an incapacitated spouse or parent.  It also fails to anticipate estate tax issues that will again become a major concern for many middle income families if Congress allows the current estate tax exemptions to expire on January 1, 2013.

In order to address some of these issues, the Massachusetts legislature supplemented the basic rules for the descent and distribution of property by drafting a model will which is actually incorporated into the General Laws.  Originally adopted in 1987, the statutory will allows an individual to adopt a more sophisticated estate plan by simply executing a will stating that the individual is adopting the statutory will and naming a personal representative and any guardians or trustees that may be required.

The statutory will can be adopted in whole or in part, so it is quite flexible.  In its complete form, it is designed to take advantage of favorable estate tax treatment, provide for an incapacitated spouse, minor children and efficient estate administrator. Of course, all of those objectives can also be achieved in the traditional way, that is, by simply writing a regular will.

The statutory will in its complete form includes about 12 pages of text and often requires some customization to address particular situations like specific gifts of property or charitable bequests, which makes use of the model somewhat cumbersome.  Furthermore, the advent of word processors has made the customization of complex documents much easier so the adoption of a “boiler plate” will by reference to a statute is much less attractive.

In retrospect, it appears it appears that the statutory will was a solution looking for a problem. Despite being available for the past 25 years, the statutory will has never been widely adopted, and although it was designed for use in all fifty states, only Massachusetts still has it on the books.  However, if one is interested in reading the text of the legislatively suggested will, it available on-line. Search for Massachusetts General Laws Chapter 191B.

tm/4002.001