"Do I Really Need a Will?"

Yes! The short answer is yes. Even if an estate is designed for probate avoidance, there is always a risk that probate property may exist at death. Even more importantly, for a parent of a minor child, a will may appoint a guardian for the child. Section 5-209 of the Massachusetts Uniform Probate Court (MUPC) provides in part that a guardian of a minor (or ward) "has the powers and responsibilities of a parent regarding the ward's support, care, education, health and welfare" and "shall act at all times in the ward's best interest and exercise reasonable care, diligence and prudence."

Choosing a guardian can be a difficult decision. A primary concern, especially for young children, is that the children and potential guardian have a close and loving relationship. It's also important to consider the age of the potential guardian given the physical and emotional energy needed to raise children. The chances of a grandparent dying before a minor reaches the age of majority is also something to consider.

An estate plan should also address management of a child's property. "Guardians" generally do not manage property for a minor. Under the MUPC, a person charged with managing a minor's property is known as a conservator. The comments to Section 5-409 of the Code provide that "a person nominated in a writing, will or otherwise, should be appointed unless not qualified." 

There are significant drawbacks to the use of conservatorship, however, including court supervision, filing annual accounts, and petitioning the court for permission before entering certain types of transactions. Court involvement makes this arrangement cumbersome and expensive. It's also not often ideal to have the minor's property turned over to him or her at the age of majority. 

The best way to address potential problems with conservatorship are for parents to create a trust to manage property for the benefit of their children. The trustee would manage the trust property, and the trust can be drafted in accordance with the wishes of the parent. Trusts are an efficient, flexible way of holding property for a minor.

While a will is an essential part of every estate plan, a comprehensive estate plan often includes one or more trusts, a durable power of attorney, health care proxy, HIPAA authorizations, and a living will in addition to a will.