Where do I find a lost will?

Sometimes a parent has recently passed away and their child can’t find the Will which they believe was drafted many years ago.  Here are some suggestions about how and where to start looking for a lost Will:

First, you should go through any papers and if you do not find the Will, be on the look out for a letter or  business card from an attorney.  If you find the attorney, you will be able to contact that person and ask if they have the original or a copy of the Will, or if they ever drafted one with that attorney.  A financial planner or accountant may also know the attorney that the decedent used.

You can also check with the decedents bank(s).  The person may have put the Will in a safe deposit box and a banker could assist you with obtaining access to the box.  If you still can not find the Will but remember your parent mentioning an attorney in a certain town, you could use the telephone book to contact attorneys in that town to see if they drafted a Will for that parent.

If by this time the Will has still not turned up, you should check with the local Probate Court.  A Will can be filed in advance of death and docketed with the Probate Court by the decedent themselves.

If you still can’t find the Will, the next step is to contact an attorney to determine how the decedents estate will be settled without a Will.

Which assets do not go through probate?

In general all the property that the deceased owned at the time of death will be part of the probate estate.  However, there are some exceptions that do not go through probate.

One exception is property held in joint tenancy.  A jointly owned asset will transfer to the surviving spouse or whomever the property was jointly owned with.  Also, assets with named beneficiaries such as insurance policies, IRAs and annuities will also avoid probate as long as the beneficiary is alive.  Furthermore, you can keep your assets from going through probate by transferring your assets into a trust.  This will help eliminate the need for your assets to go through probate.

How do you recover damages when a trust has been mismanaged?

Before you can recover damages you will need to prove that trust mismanagement has occurred.  You will generally need to prove that the trustee did not act in the best interest of the trust beneficiaries.  For example, you may be able to prove that the trustee had a conflict of interest and acted in the best interest of someone other than the beneficiary.

After you prove that trust mismanagement has occurred, you will next need to show how you were harmed by this trust mismanagement.  This will often require financial experts who can reasonably predict what would have occurred to the trust assets if they had been properly managed by the trustee.  The court will generally award you damages for the amount the trust would have made but for the mismanagement by the trustee.  In some cases, criminal charges may also be brought against the trustee.

What is an “Interrorem Clause?

“Interrorem” in Latin means to “put one in fear.”  An “Interrorem Clause” can be inserted into a Will and basically states that if any person provided for in the Will files a Will contest, that person will lose any bequest or benefit provided for them in the Will.  This is often helpful to stop someone from challenging [...]

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I have minor children. Why do I need an estate plan?

For people with minor children, having an estate plan can be extremely important. This is because the court will have no idea who you wanted to take care of your minor children. Although you can only really nominate a guardian, the court will give your choice top priority when making its decision. You do not [...]

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What is “administration” of my estate?

Administration of an estate, commonly known as Probate, involves the distribution of properties to the beneficiaries or heirs, the collection of assets, and payment of liabilities. It is conducted under some degree of probate court authority and supervision but there are also different procedures that are available.
There is a procedure known as voluntary administration [...]

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Will my beneficiaries have to pay Massachusetts estate taxes or federal estate taxes?

Assets that are transferred to either your spouse or to charitable organizations are not subject to immediate estate taxes. Assets passing to other individuals will be taxed if the net value of those assets exceeds the specified exemption amounts. However, significant estate taxes can be saved by proper estate planning.
Currently in 2010, the exemption amount [...]

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What is Probate and Should I Consider a Trust?

Probate is the legal process of transferring ownership of assets after ones death.  Probate assets are such things like a bank account or a stock certificate.  If a person dies owning probate assets, a legal proceeding in the Probate Court will be necessary to transfer these assets to the individuals names in the decedents will.  This can be [...]

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Where Should I Keep My Will and Other Estate Planning Documents?

Your lawyer should keep the original or a copy of your will.  In addition, you should keep copies in a place where your family members, executors, health care proxy, or attorney-in-fact could get to them.  You do not want to keep your will, trust or power of attorney in a safe deposit box because if you’re the [...]

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What is the Massachusetts Health Care Proxy?

The health care proxy provides protection for an individual’s right to determine the course of his medical care in the event of incapacity.  If you are at least 18 years old, you can designate a person that will make health care decisions for you if you are unable to make them yourself.  It should only go into [...]

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