When to Change Your Will

I am often asked when a Will should be changed. The answer is that a change in a Will is primarily triggered by personal circumstances. It is unlikely that there would be such a significant change in law that would require everyone to change his or her Will. Excluding the future federal estate tax uncertainty, most of the circumstances that trigger a change in estate planning documents result from changes in your personal or family life.

1. Marriage or Divorce: In Massachusetts, a marriage or divorce may revoke a part of or the entire Will. If you are getting married, there is special wording than may be inserted into the acknowledgement that will prevent the Will from being revoked. The suggested wording is: “This Will is made in contemplation of my marriage to __________________ and the provisions of this Will shall not be revoked by such marriage.”

A divorce will revoke any distribution to the former spouse. Any property passing to a former spouse will be treated as if the former spouse had predeceased the will-maker. A divorce also revokes any appointment of a former spouse as executor, trustee, guardian, health care agent, or conservator. A separation does not revoke these terms, because the court does not consider a separation to be a legal dissolution of the marriage.

Unless the divorce agreement prohibits, also remember to replace an ex-spouse as the beneficiary on any life insurance policies or retirement accounts. Recently the United States Supreme Court decided whether a waiver, signed by an ex-spouse, in which she gave up her rights to her former husband’s retirement benefits was valid. The Court found that the waiver was not enough to overcome her former husband’s designation, and awarded the benefits to his ex-wife. Kennedy v. Plan Adm’r for DuPont Savings and Investment Plan, 129 S. Ct. 865 (2009) (plan administrator correctly paid $400,000.00 to ex-wife because original designation form was properly done while waiver form was not done within rules governing the plan).

2. Separation or Marital Troubles of a Child: If a child is separated or experiencing marital troubles, it may make sense to redo your Will. In Massachusetts, one of the factors used in determining the division of marital property for a divorcing couple is the “opportunity of each for future acquisition of capital assets and income.” This means the Probate Court Judge deciding the property division of the divorcing couple is allowed to consider the potentialinheritance of both parties.

As long as the parent is alive, the actual inheritance itself is not at risk, but the possibility of an inheritance may be used to calculate division of assets awarded to each spouse. Davidson v. Davidson, 19 Mass. App. Ct. 364, 374-377 (1985) (potential inheritance may be considered by judge as “opportunity of each for future acquisition of capital assets and income” in determining what disposition to make of the property which is subject to division); Zeh v. Zeh, 35 Mass. App. Ct. 260, 264-265 (1993) (“expectancy of an inheritance does not qualify as property subject to division . . . [but may] be considered by the judge under the “criterion of ‘opportunity of each for future acquisition of capital assets and income’ in determining what disposition to make of the property which is subject to division”).

Divorce attorneys are well aware that the court may use a potential inheritance when dividing the marital property. Even though only one of many factors used, a changing a Will, even if only temporary, may make sense.

3. Death of a Spouse: Most Wills already have language that details the distribution of an estate if a spouse has already passed away. However, it is still a good idea to review those terms. In some cases, the Will may have been made decades before, and the terms no longer really reflect the wishes of the surviving spouse.

For example, if the now deceased spouse was named the executor, make sure there is an alternate listed. If a child was named as the alternate executor, are they still the best choice?

4. Spouse in a Nursing Home: When one member of a married couple has to go to a nursing home, the Will of the person remaining at home should be reviewed as soon as possible. Many times couples have “I Love You” Wills. These types of Wills leave everything to the surviving spouse, and are very common – particularly if the Wills were done years earlier. But, if one spouse is now in a nursing home, this is probably not the best distribution plan.

It may be a much better idea to direct that assets be given to a trustee of a trust used for the benefit of the surviving spouse. The Trustee will then be able to control and manage the money for the surviving spouse, and if the trust is properly drafted, the assets may be protected from the cost of nursing home care. To take full advantage of a testamentary trust (a trust created in a Will), the assets must be only in the name of the spouse living at home. Remember, jointly owned assets are not controlled by the terms in a Will. “Joint Ownership Is Not An Estate Plan”

Estate Planning and Elder Law Newsletter: Special Needs Trusts

Every month I send an E-Newsletter that has articles on Estate Planning and Elder Law topics. If you would like to subscribe to my E-Newsletter, please feel free to sign up. The topic this month is the challenge facing parents of children with Special Needs. With a little advanced planning, a potential inheritance may be used to supplement any benefits being received, but not financially disqualifying the child from receiving those much needed governmental benefits.

Pet Trusts Soon Possible in Massachusetts

On January 7, 2011, Massachusetts Governor Deval Patrick signed “An Act Relative to Trusts For The Care of Animals.” This law will finally allow Massachusetts residents to create legally enforceable trusts that can hold money for the care of their animals. The animal will now be able to be the beneficiary of the trust, with a Trustee appointed to manage the funds and care for the pet. The new law will take effect on April 7, 2011.

Without this law, Massachusetts pet owners can only leave that money to a person, and hope that the money would be used to care for the pet. The caretaker was under no legal obligation to actually use the money for the pet. Now, Massachusetts joins 43 other states that allow “Pet Trusts.”

Probably the most famous beneficiary of a “Pet Trust” was Leona Helmsley’s Maltese poodle, Trouble Helmsley. Trouble originally inherited $12,000,000 but this was reduced to $2,000,000 at the request of the Trustee. Apparently,Trouble is able to make ends meet with the reduced inheritance.

Massachusetts Homestead Law

On Friday, December 17, 2010, Massachusetts Governor Deval Patrick signed a Massachusetts Homestead Law and FormsThe new Homestead law, scheduled to take effect in 90 days, will not only help homeowners, the new law also removes a lot of confusion surrounding the existing Homestead law.


First, the new law automatically gives every Massachusetts homeowner $125,000.00 of equity protection for their primary residence, even if they never file an actual Declaration of Homestead form at the registry of deeds. If a homeowner does file the Declaration of Homestead, they will be given the full $500,000.00 creditor protection of the equity in their home.Second, the new law makes clear that a homeowner does not have to file a new Declaration of Homestead every time they refinance their home. This has been an open question prior to the signing of this law.Third, the new law also makes clear that property held in a revocable trust may be protected by a Declaration of Homestead. This too has been a confusing and uncertain area. In February 2010, the United States Bankruptcy Court for Massachusetts decided In re: Olga M. Rodrigues.

This decision found that property held in a revocable trust could be protected by a Declaration of Homestead during a bankruptcy proceeding. However, it remained uncertain whether Massachusetts courts would follow this federal court ruling. The legislature settled this uncertainty with the new Homestead law.New Declaration of Homestead forms should be available as the effective day of the new law approaches. However, existing Homesteads are grandfathered under the new law. So if you have already filed a Homestead at the registry of deeds, it should not be necessary to file a new form.Richard Howe, the Register of Deeds for Middlesex North District Registry of Deeds, continues to update the new law on his blog.


At least for the next two years, things could not be much better on the estate tax planning front. On December 17, 2010, President Obama signed the “Tax Relief, Unemployment Insurance Reauthorization and Jobs Creation Act of 2010,” which extends the so-called “Bush Tax Cuts.” The new tax law increases the dollar amount that may pass estate-tax-free to $5,000,000.00 per person ($10,000,000.00 per married couple). This new law will be in place for estates of people who die in 2011 and 2012.

Without this new law, estate taxes were scheduled to be reinstated January 1, 2011, on estates over $1,000,000.00. With the passage of this new law, it is estimated that only 4,000 estates will be required to pay any federal estate taxes at all.

Estate and inheritance taxes may still be imposed by individual states, but the federal estate tax – which could have been as high as 55% – was the most feared by estate planners and individuals. If you are wondering about what states do not have any estate tax, Forbes Magazine published a map that shows each state, what their rates are, and how much may be exempted before the state estate tax is imposed.

White House Press Release highlights other tax benefits of the new law

Preventing A Challenge To A Will

In my last post, I talked about how Wills may be challenged. In this post I will suggest some things that you can do to avoid a potential Will contest. No one who goes to the effort and expense of preparing a Will wants the document to cause trouble within the family. In fact, for most people, the very reason they are doing a Will is so that their family will have written instruction for the distribution of their estate. I often hear from clients that they have peace of mind after signing their Will. So, what can you and your attorney do to reduce the risks of a Will challenge?
1. Disinheriting heirs: you are absolutely free to omit an adult child from your Will: it’s your estate and you can give it to whomever you wish. But, make sure the Will specifically states you have done this intentionally and leaving out that child or other heir was not a mistake. Attorneys differ on whether to include a reason why the child has been left out. My opinion is that no reason should be stated in the Will itself. For example, if the Will states that the reason a child has been omitted is because they have been “taken care of during lifetime,” the child may challenge that wording or try and prove that they were not actually “taken care of” by the parent. Thus, that would mean there was a mistake when the Will was written.

My preference is to have the parent write a separate letter explaining why they have not given anything to that child. If the dispute ever ends up in Court, the letter would establish that the child was not omitted by mistake.

2. Undue Influence Prevention: Preventing a Will challenge based on undue influence is the responsibility of both the attorney and the client. First, the attorney should not allow anyone other than the client to attend the meetings. Allowing a child or other beneficiary to participate in meetings with the client could be opening the courthouse door to any other person who feels they were treated unfairly in the Will. It is sometimes difficult for a client to understand that the reason for prohibiting anyone else to attend meetings is to protect the client’s final wishes. It is not an indictment of the child. It is the attorney’s job to make clear that they have one client, and that client is the person signing the Will.

3. Copies of the Will: I strongly advise clients to not give out copies of their Will. If the Will is changed down the road, it is better that there be no copies of the prior Will in existence. If a child has an expectation of an inheritance, and a later Will reduces or eliminates that inheritance, an objection to the new Will is almost a certainty.
Ninety-nine percent of all Wills are probated without any issues arising. However, if you anticipate there may be a challenge to your Will, tell your attorney about your concerns. Both of you can then put in place measurers to prevent a successful challenge.

Grounds for Challenging a Will in Massachusetts

A lot of time and thought goes into the preparation of a Will, and when someone signs it, they expect that the document will stand as their last instruction for how their assets should be distributed. They have every right to assume this. However, sometimes a challenge made be made to the Will. Although the vast majority of Wills presented to the Probate Courts in Massachusetts are accepted and the directions followed without any disputes, occasionally a Will is contested.

In Massachusetts, Will contests fall into three general categories: Mistakes, incapacity of the testator, and fraud or undue influence.

1. Mistakes In Execution or Mistake By The Testator

Mistake In Execution

This challenge is based on the document form. The Massachusetts statute that controls Will executions, M.G.L. ch. 19oB, sec 2-502, provides that a Will must be in writing, signed by the testator (or by someone else at the specific direction of the testator), and signed by two or more competent witnesses.

The possible mistakes can be: the Will was not signed by the testator, no witnesses signed the Will, the Will is not in writing, or the testator did not know he was signing a Will.

Any bequest to a witness, or the spouse of a witness, who is also a beneficiary under the Will is void, unless two other witnesses also sign. M.G.L. ch 190B, sec 2-505.

Oral Wills – called Nuncupative Wills – are allowed in very limited circumstances.

Mistake by The Testator

This challenge is based primarily on the contents of the Will. A challenge may be based on the fact a child or other natural heir was omitted from the Will. This type of challenge may be avoided by making it clear in the Will that anyone omitted was omitted intentionally.

The person presenting the Will to the Probate Court has the burden of showing the Will was properly executed. This is usually easily established by the execution language at the end of the Will in which the executor declares that they have signed the document in front of witnesses, acknowledge that the document is their Will, and that they have signed it voluntarily. The witnesses then sign an Affidavit stating they observed the testator signing the Will.
2. Incapacity

This challenge is based on the mental condition of the testator. The person contesting the Will charges that the testator was not of sound mind when the Will was exexuted. The legal presumption is that the testator was of sound mind at the time of execution, and anyone contesting this has the burden of proof.

A person signing a Will must be competent at the time of execution, understand what is in their estate, and know who would be the natural heirs to that estate. This does not mean the testator must follow any distribution plan, it simply means the testator must be aware what they own and who would be in line to receive their estate.

An interesting case discussing that the timeframe for capacity is at the time of signing, and that someone may lack capacity at other times. O’Rourke v. Hunter, 446 Mass. 814, 827, 848 N.E. 2d 382, 391 (2006).

3. Fraud and Undue Influence

This challenge is based on the contents of the document, the behavior of third parties, and on whether the testator signed the Will with a full understanding of the circumstances. These are actually two separate challenges.

A fraud challenge maintains that the testator was deceived prior to signing the Will. Although the testator acted freely, a misrepresentation led them to sign a Will they never would have signed had they known the truth.

An undue influence challenge maintains that the testator’s own free will was overcome through coercion, and the resulting Will benefits the person who applied that pressure. There are many cases in Massachusetts that have examined undue influence claims, and the courts look at variety of factors to determine if a Will was the result of undue influence. Some of the important factors mentioned in the cases are: the age and health of the testator, the relationship of the testator to the person exerting pressure, and the opportunity of that person to exercise pressure.

One of the earliest cases discussing undue influence:
Neill v. Brackett, 234 Mass. 367, 369, 126 N.E. 93, 94 (1920).

The person challenging the Will has the burden of proving that the Will was the result of fraud or undue influence.

Tips for Selecting a Nursing Home In Massachusetts and Nationally

It is something no family expects or wants to do. It may be one of the most difficult decisions a child has to make, but there is always the possibility that a parent or other loved one will eventually need a skilled nursing home. Moving a parent from home to an assisted living facility may be difficult, but placing them in a nursing home may be far more traumatic. Jonathan Rauch, of Atlantic Magazine, in his article titled “Letting Go of My Father,”described the emotional journey he experienced placing his father in an assisted living facility.

Moving a parent to an assisted living facility, in some ways, may be less traumatic, but is still heart wrenching. Moving a parent to a nursing home, many times the next step in the care cycle, can be an even more difficult decision.

The decision may be forced on a family in a number of ways: the assisted living facility has called to say the person can no longer stay in assisted living; money is running out for care that had been given in the home; the family member who had been devoting time to the care decides he or she can no longer safely provide for the person. Far more likely is that the loved one has been in the hospital, and the hospital is suggesting that the person be discharged to a nursing home for long-term placement.

Plan Ahead and Research Tools

Often, decisions made in the middle of a crisis are not the best. If a family member is ill, or starting to decline, start looking at facilities before you actually need to make the placement decision.How do you choose? What nursing home is going to be the right fit for the person and family? The first step is to research. If geographic location is important so that a spouse or other family can visit regularly, check with friends who may have placed a family member in a nearby community.

Massachusetts Survey of Nursing Home Satisfaction

The Massachusetts Office of Health and Human Services publishes a report on Nursing Home Satisfaction. The surveys were done in 2005, 2007 and 2009. A family member of residents in every facility in Massachusetts were sent questionnaires, and asked to rate the nursing home from the consumer point of view. The questions covered a wide spectrum of facility services, including: the staff, physical environment, activities, personal care services, quality of the food, and residents’ personal rights. Each facility has an overall rating for satisfaction. This Summary of Individual Facility Results report is a wonderful resource and starting point for selecting a facility.

Medicare National Survey

Medicare also does a yearly review of nursing homes throughout the country. For this report, Medicare collects information on over 15,000 nursing homes and publishes the data.Unlike the Massachusetts survey, Medicare looks only three categories: Health Inspections, Staffing, and Quality Measures (e.g. how well the nursing home helps people keep their ability to dress and eat, or how well the nursing home prevents and treats skin ulcers).

Nursing homes are rated from one to five Stars, but only ten percent of nursing homes in each state may be rated Five Stars, so don’t eliminate a facility just because it may rated at Four Stars.

Visit the Facility

Visit the facilities. Then visit again. Nothing is better than a visit to the nursing home – except one or two more visits. Medicare has a Nursing Home Checklistthat you print out and bring with you on your visits.Although never an easy task, placing a parent in a facility in which you have confidence can ease the anxiety.