However, one should have a Massachusetts attorney look over the will to make sure that it was valid in the state where it was executed.  Also, if the will is several years old, one should think about reviewing the document in order to make sure that the will does not need to be updated.  Sometimes one will have different wishes from the time he or she created the original will. In addition, differences in property or tax laws from state to state may make it an advantage to change the current estate plan.

However, some attorneys like to include language leaving one dollar or a small amount to the children in question.  The purpose of this is to make it perfectly clear that they have not forgotten the child.  It is not necessary to explain why you are excluding the child from the will.  These steps will help prevent one from arguing in court that he or she had been forgotten or that there was a mistake in the will.

It is also advisable that if you are to specifically disinherit an immediate family member such as a spouse or child, the attorney performing the Will signing should videotape the signing for further proof that you did not sign under duress and that you were of sound mind when you made the 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.

Another way to avoid a Will contest is to communicate with your heirs about the estate and probate proceedings.  This can prevent jealousy and suspicions which can result in a Will contest.

One way to revoke the will is by operation of the law.  This will occur automatically on the occurrence of specified events or circumstances designated by the law.  The law operates to revoke part or all of the will because it assumes that the testator would no longer have desired the will to take effect as is. Another way to revoke the will is a revocation by a physical act.  The testator may physically destroy the will or perform some act upon it that it manifests the testators intent that the will is not to be used to determine his property after death.  Finally, a will may also be revoked by subsequent writing. This is when the testator creates another writing that will satisfy all of the requirements of a valid will.  This can be a new will, an amendment to the existing will also known as a codicil, or a document that revokes the prior will but doesn’t contain a replacement for it.

Under Massachusetts Law, if the decedent has no children, and no other relatives, his or her property is automatically inherited by the spouse.  Many people may be content with this however, some will not want this to occur.  If the decedent wanted to leave their property to a good friend or a favorite charity, without a valid will, he would not be able to do this.  Furthermore, imagine dying with no spouse, no children, and no other relatives. Under Massachusetts law, without a will, your property will go to the state of Massachusetts. Even if you have no family left, why allow the state to have your property when you can choose to leave it to your best friend or a charity of your choice?

This doesn’t mean a videotape  is useless.   Your attorney might ask that you videotape your will signing, not to serve as a video will, but documentation of the event.  There are two reasons why having this event videotaped can be helpful:

1)       It shows you were of sound mind at the time you signed your will, a requirement for it to be valid, and;

2)      It shows that you signed your will voluntarily, another requirement for it to be valid.

By videotaping the signing of your written will, you bolster its validity and make sure that your final wishes are carried out the way you expected.

*Idea for this post is courtesy of David Shulman of the South Florida Estate Planning Law Blog

For starters, think about all the other documents, like bank statements and official letters,  that you expect to be typed up.  Why?  For starters, these are documents you expect to be legible, and that’s much more likely to be true if they’re typed up.  It’s also true that a document that’s been typed up is more likely to have been thought out before it was printed and signed.  Your will is an important document, it dictates your wishes to those who are left behind when you pass.  Do you really want to risk it being invalid because your handwriting was messy?

The truth is that when it comes to writing a will, seeking the advice of an attorney comes highly recommended.  Even a will you’ve typed up yourself might not be entirely valid, or address everything you really need to consider.  An attorney can help not only with drafting the actual language contained in your will, but can help explain what a will should contain so you can be certain that your wishes will be carried out.  It may cost money now, but could save your friends and loved ones years in court fighting with the state or each other over a will that is unclear or invalid.

In 2009, the estate tax exemption was $3.5M.  If you had $3.5M or less at the time of your death, you wouldn’t have to pay any estate taxes, but if you had more, you would have to pay taxes on the amount over the exemption.  In 2010, the exemption is unlimited so therefore no estate taxes.

This all applies to the federal estate tax.  Massachusetts has its own estate tax that is not related to the federal tax.  So while in 2010, the federal exemption is unlimited, Massachusetts still has theirs set at $1M.  This means that if you have more than $1M at the time of death in 2010 and you also lived here in Massachusetts, then you will have to pay Massachusetts an estate tax (arguably a lot less than if you also had to pay the Federal government).

But this generous lapse in tax in 2010 does not come for free.  Estate taxes are gone but so are the inherited step-up in cost basis of inherited property.  In the past, if your mom left you a house valued at $2M at the time of her death, when you inherit that property, your cost basis for tax purposes would automatically go up to $2M.  That means if you turned around and sold the property that day, you would have to pay no estate tax or capital gains tax.  In 2010 however, the step-up in cost basis is limited to only the first $1.3M.

Keep in mind however that the gift tax is not repealed in 2010.  The generation-skipping tax is repealed.

With all these changes in the estate tax laws, if you’re doing any sort of wills and trust planning, you need to see an estate planning attorney to make sure everything is set up correctly.  A pre-packaged will and trust kit from a stationary store or a $20 computer program will not be sufficient to plan around all these changes and be property tailored to your individual circumstances.