Whether someone is creating a will for the first time or updating an existing document, there are some things to consider when finalizing last wishes and bequests. Under the elective share statute, people in Massachusetts cannot completely disinherit a spouse. However, complications can sometimes arise when dividing assets among adult children.
Equal vs. equitable: which makes the most sense?
It would make sense to equally divide all remaining assets after the surviving spouse’s share among the decedent’s adult children. In cases where the descendants live in similar circumstances or such a division would avoid conflict, an equal division seems like a hassle-free choice.
But what happens if the assets are of a type that cannot be split into equal portions, such as art or collectibles? What if one child is in dire financial straits or has a medical problem?
It’s possible that giving more to one could stir up resentment among other family members. The situation could even escalate to a full-blown challenge in probate court.
Such concerns could contribute to delaying the task of drafting a will.
Challenging a will in Massachusetts
While someone may be upset with their legacy or feel that the assets were not distributed fairly, will contests in Massachusetts usually have to meet some specific criteria.
There are three main areas that a probate judge will evaluate if a will is being challenged:
* Fraud or undue influence, such as someone putting pressure on the testator to change their will
* Incapacity of the testator, such as mental diminishment at the time the will was drafted
* Mistakes, usually by omission. This could include not having the requisite number of witnesses, lack of proper signatures, or accidentally omitting a person
Being transparent with family members before drafting a will, using clear language in its construction, and properly executing and filing the final draft can help avoid hard feelings or formal contests.
