More people than not die without having ever making a will. The reasons vary — a belief that estate planning costs too much, that somehow their assets will be divided “fairly,” that they don't own enough to need an estate plan, etc., etc.
These people have done a form of estate planning — they just don't realize it. They've unwittingly chosen to fall back on the intestacy statute, which determines distributions of assets if someone dies without making a will. If you are in a second marriage, this can be a really bad choice.
Under current Massachusetts law, if you are married and have kids and die, one-half of your estate would go to your widow(er) and the other half would be divided between your kids. As of January 2, 2012, this law will change. If you die married and have children after that date, EVERYTHING will go to your spouse.
Now, that may be a fine arrangement under many circumstances, but what if you are in a second marriage? Your children from Marriage #1 will probably be none too happy about your unintentionally disinheriting them.
Then there's the problem of whether you've updated the beneficiary designations on your life insurance policies and retirement plans. Spouse #2 can receive an unpleasant surprise after your death when she finds out that you never got around to removing Spouse #1 as a beneficiary of those plans. Under Massachusetts law, Spouse #2 will be out of luck, because the beneficiary designations in place as of your death govern.
A proper estate plan can make sure that both your spouse and the children from the first marriage are all provided for. You can think about having a trust which pays income to your spouse for life, and then leaves the assets to your children. If you name a neutral party as trustee, you will reduce the potential friction that can come as a result of putting Spouse #2 in charge of what will be your children's inheritance. Your attorney will also discuss updating your beneficiary designations, and can even complete the paperwork for you.
So, if you're in a second marriage, give us a call at 781-433-8665 and take the first step to make sure that your second spouse and your children will all be properly looked after.