If you own a home, own a business, or have a family in Massachusetts, schedule a consultation at once with a Cape Cod estate planning attorney to prepare an estate plan or to review your current plan. Every adult with assets, properties, or a family should have an estate plan in place.
You might be surprised to learn that estate planning dates back thousands of years. In the Old Testament, the Book of Proverbs tells us that “A good man leaves an inheritance to his children’s children.”
Who Wrote the First Will?
The first written wills were in ancient Greece. The Greek philosopher Plutarch tells us the written will was created by Solon, an Athenian statesman. Roman law advanced the development of inheritance laws and wills and is still the basis of inheritance laws in many European nations.
Romans understood that the memories of the living can’t be trusted, so in the later Roman Empire, all wills were put in writing. Witnesses to the signing of a will were an early requirement, but only free men – not women or slaves – could witness a will in ancient Rome.
What Was the Statute of Wills?
In England, the Statute of Wills, enacted in 1540, made it possible for a landholder to determine who would inherit his land upon his death by establishing a will. Prior to 1540, land was subject to primogeniture, under which a first-born son – alone – inherits a parent’s entire estate.
Also prior to the Statute of Wills, when a landholder died without any living relatives, his land went to the Crown. The statute was a compromise between Henry VIII and English landowners, who had grown frustrated with primogeniture and with the royal control of land.
What Was the Wills Act?
After the Statute of Wills, a number of types of wills – and ways of handling them – developed in England before the Wills Act of 1837 established uniformity regarding wills in that nation. The main provisions of the Wills Act were:
- All property, real and personal, may be disbursed with a will.
- No will made by anyone under age twenty-one is legally valid.
- Every will must be put in writing.
- Gifts to a witness or the husband or wife of a witness are not allowed.
- A will takes effect upon the death of its creator (the “testator”) unless stated otherwise.
Like the laws of England, the basis for many of our laws in the United States can be traced back to the ancient Greeks and Romans. However, wills have existed around the world for centuries. The Qur’an, for example, outlines inheritance law and other processes governing succession.
How Have Wills Changed?
The process of establishing a will has changed significantly over time as family structures, customs, and legal systems have changed. While the purpose of a will has stayed the same – to say who gets what after a testator’s death – wills have evolved and changed with society.
Undoubtedly, the biggest difference between ancient and modern wills involves the role of women. Wills in ancient Greece and Rome only allowed property and possessions to transfer between males.
How Have Trusts Evolved?
Roman law had a concept of a trust (a “fideicommissum”) created by a will. A fideicommissum allowed a creator of a will to leave assets or properties to a party or parties he was not related to. However, these did not develop into modern trusts that can be used while their creator is alive.
Modern trusts began to develop in England in the 12th century. When a landowner left to fight in the Crusades, he conveyed legal ownership of his land to someone else to manage the estate and to pay and receive feudal dues, on the condition that he would resume ownership upon his return.
Some crusaders did not have their land returned, and courts had to compel the return of the crusaders’ lands. The crusader was the “beneficiary” in these cases and the “legal” landowner was called a “trustee.” The legal use of another’s land developed into what we now call a trust.
Trusts in the Modern Era
The first revocable living trust in the Americas was created for Francis Fauquier, the Lieutenant Governor of Virginia, in 1765. Fauquier had his attorney – Patrick Henry – prepare a trust so that his family wouldn’t have to deal with probate in order to inherit his assets upon his death.
However, it was not until the 1960s that revocable living trusts gained wide popularity. Today, revocable living trusts are a standard estate planning tool for avoiding the lengthy and costly probate process.
Specialized trusts – spendthrift trusts and special needs trusts, for example – also emerged in the modern era in response to consumer needs. A Massachusetts estate planning lawyer can provide you with personalized advice and help you set up a customized trust that’s right for you.
How Did Modern Estate Planning Develop?
Estate planning in the United States evolved in response to estate taxes, which – prior to the 20th century – were only imposed to fund wars and then repealed at a war’s end. However, with World War I and the estate tax that was enacted in 1916, the estate tax was here to stay.
People quickly realized that they could avoid the estate tax by gifting their estates to members of their families, so the federal government responded by enacting a gift tax in 1924. The Tax Reform Act of 1976 merged the estate tax and the gift tax into the same tax schedule.
In the 21st century, comprehensive estate planning involves various types of wills, various types of trusts, beneficiary designations, gifts, and powers of attorney, specifically the durable financial power of attorney and the durable medical power of attorney.
Now Is the Time to Begin Planning Your Estate
Estate planning has evolved like technology has evolved. As photography has evolved from black and white photos to color photos and Hollywood blockbusters, estate planning has evolved from wills to trusts to comprehensive estate planning with a number of options and choices.
Technology also lets attorneys provide estate planning information and services that are easy to access. You can learn more about the services a Cape Cod estate planning lawyer provides by taking part in an online seminar or “webinar” without leaving the comfort of your home.
Income, gift, and estate taxes must be considered when you plan your estate. A Cape Cod estate planning attorney can help you develop a plan that protects your assets, ensures that your instructions are followed, and provides for your loved ones when that time comes.
Estate planning takes time and thoughtful consideration, and since no one can predict the future, the time to begin planning your estate is now. If you have already established your estate plan, let a Cape Cod estate planning lawyer review it with you to ensure that it still meets your needs.