Estate planning can be a complex area of law and there is no “one size fits all” when it comes to creating an estate plan. There are numerous strategies that can be used depending on one’s financial circumstances, age, goals and concerns.
Depending on your goals, there are many tools available to help craft an estate plan including, wills, irrevocable trusts, revocable living trusts, health care proxies, durable powers of attorney, advanced directives, declaration of homestead, etc...
A common misconception among clients is that they do not have an estate plan in place but this is not entirely accurate. In the absence of a properly drafted estate plan, the Massachusetts laws of “intestacy” (i.e., one who dies without an estate plan) will be applied to distribute and resolve your estate for you which, in many cases, can have dire consequences and may result in an outcome that was never intended or desired by the decedent.Types of Estate Planning Services:
Below is a brief overview of the various estate planning services that can be used to craft your estate plan.A Massachusetts Last Will and Testament
Your last will and testament is just one part of an estate plan. In a nutshell, a will is a legal document that allows for the orderly distribution of one’s estate or “probate property” to one’s desired beneficiaries. This is accomplished by appointing a fiduciary (usually a close family member) who is responsible under the terms of the will to carry out the decedent’s wishes. As mentioned above, if an individual dies without a Will they are said to have died "intestate" and Massachusetts law will determine how the person's assets will be distributed. There are a few key points that should be said about wills.
- A will does not take effect until one’s death. This means that a will has no legal authority until the person has died and therefore, the will cannot help to manage a person's affairs when they are still alive but may be incapacitated, whether it’s due to illness or some other reason.
- A will cannot help a person’s estate avoid probate court which, for some, is not something they want since probate court can be a lengthy and expensive process. For others this is less of a concern but, if someone is looking to avoid having their estate go through the probate court system, then other estate planning tools should be considered such as a trust.
- A will can be a helpful tool for parents to appoint guardians for their minor children in the event both parents are deceased. All parents of minor children should select and appoint their choice of guardians for their minor children and this should be documented. By failing to properly plan for this scenario, parents may be unknowingly opening the door to ugly court battles and fights over the care for their minor children that they did not expect or want.
Trusts are another tool used for managing one’s estate. Trusts come in many different forms and they can be simple or complex, and can help to address many different goals. In a nutshell, a trust is a legal entity which requires several things including: (1) a trust “settlor” (or maker of the trust); (2) a trustee (i.e., trust manager), and (3) a trust beneficiary (the person or persons who will benefit from the trust).
There are many advantages to establishing a trust, including avoiding probate court and streamlining the handling and distribution of assets for the benefit of any beneficiaries. Typically, any assets owned in a revocable living trust will pass to the trust beneficiaries immediately upon the death of the trust creator with no probate court involvement required. Certain trusts also may result in tax advantages both for the trust-maker and the beneficiary. Irrevocable trusts are another common form of estate planning and allow for certain tax advantages. This is because neither the property transferred nor the appreciation of the value of the property itself is included in the trust creator’s gross estate for estate tax purposes. Irrevocable trusts can also be a good way to protect assets from creditors if the trust is set up the right way.Durable Power of Attorney (“Attorney in Fact”)
A durable power of attorney (DPOA) is a legal document that gives another person (the attorney-in-fact) the legal authority to act on your behalf. A DPOA can avoid the potentially costly and time-consuming process of having to go to court in order to get a guardian or conservator appointed in the event you become incapacitated. A Durable Power of Attorney can include very broad powers, or it can be very specific. It is important to note that all powers of attorney terminate upon the death of the person who created the document. When the goal is to have to someone in place to carry on certain affairs in the event of incapacity, then a durable power of attorney should be used and should contain specific language stating that the powers “shall not be affected by my subsequent disability or incapacity or lapse of time.” Because of the powers associated with this type of legal document, it is important that one appoint an “attorney in fact” who is responsible and trustworthy.Health Care Proxy
A Health Care Proxy is another legal document that gives another person (the health care agent) the ability and legal authority to make health care decisions on one’s behalf in the event one becomes incapacitated and unable to make decisions for himself or herself. The authority given under a health care proxy is usually broad and also includes the ability to make decisions involving mental health. Usually a husband and wife will appoint each other to act in this role but it can be anyone. It is worth noting that a health-care proxy does not actually grant any authority to act until the person creating the document (the principal) is unable to act on his or her own or communicate medical decisions for himself or herself. A person’s doctor must comply with the directives of the health care agent and if the doctor is unable or unwilling to do so, he or she must refer the patient to another doctor who will carry out the wishes of the health-care agent.Advance Directive and Living Will
This document is essentially, a statement of one’s personal wishes regarding life saving measures and medical procedures that could be used to prolong one’s life should he or she lose the ability to make and communicate medical decisions. Although this document is not legally binding in Massachusetts, it does provide a helpful guide for one’s health care agent as to the person’s medical wishes. For example, this document can set out the circumstances under which one would not like his or her life to be prolonged if, for example, you are in a come without a chance of making a recovery.Contact a Weymouth, MA Estate Planning Attorney Today – 781-331-3811
Many people wait too long before creating an estate plan. This can have consequences that were not anticipated. If you are looking to set up an estate plan for you and your family, the estate planning attorneys at Curran & Desharnais, P.C. are here to help.
The Weymouth estate planning lawyers at Curran & Desharnais, P.C. can assist with your estate planning needs including setting up a trust, will drafting, and the drafting of ancillary estate planning documents such as Durable Powers of Attorney, Health Care Proxies, Declaration of Homestead, guardianship planning and more. Call us today at 781-331-3811 to discuss your estate planning needs.