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It can be a great gift to your loved ones to actively plan for adverse life events. An important part of such planning is often referred to as “estate planning.” Having personally seen the benefits of estate planning, and the difficulties that can arise without it, I decided to include estate planning in services offered by my law office.
Many people first consider estate planning when they experience a major life change. The arrival of a child can make you realize the need to provide for that child’s care and wellbeing in the event of parental disability or death. Caring for an elderly parent can make you realize the need to ensure sound management of your financial affairs should the time come when you cannot fully manage on your own. A serious illness or accident can prompt you to consider the day when it might be necessary to “spend down” your lifetime savings before Medicaid will assist with sky-high long-term care and nursing home costs.
The law provides many tools to plan for illness, disability, and death.
With a properly drafted last will and testament, you can state your legally enforceable wishes about the distribution of your estate, after death, to your loved ones. You can nominate the person you trust to carry out your wishes, and, if you have children, also nominate the person you trust to care for and support your children. You can include other provisions addressing how your estate is to be used or protected for the benefit of the people and causes you care about.
Trusts can also be useful tools to address a variety of concerns. They are often helpful in reducing, or even eliminating, Massachusetts and/or federal estate tax that otherwise may have to be paid at death. In addition, by placing your assets in a trust, you can avoid having those assets subjected to a potentially lengthy and costly Probate Court process. You can also create trusts to ensure that assets are properly used to care for children or other dependents in the event you are unable to provide that care yourself; to protect assets when eligibility for Medicaid benefits must be established; to advance charitable purposes while still providing for family members; and even to ensure that a beloved pet is properly cared for in the event of your disability or death. These are only a few of the uses of trusts for estate planning purposes. Whether or not establishing a trust makes sense for you depends on your and your family’s particular financial situation, needs, and wishes.
A Power of Attorney is extremely important to put in place before you need it. Through your Power of Attorney, you choose someone (your “attorney-in-fact”) who will have the authority to handle your financial affairs if you become incapable of doing so.
Similarly, a Health Care Proxy is the legal document through which you choose someone to make health care decisions for you should it be medically determined that you cannot make or communicate those decisions yourself. This document should be accompanied with a HIPAA Authorization and Release to identify those individuals to whom your medical providers are permitted to disclose your medical information.
If you would like more information about putting an estate plan in place, or the possibility that you may need to update your existing plan based on changes that have occurred in your or your family’s life, please contact me.
Estate Probate and Administration
In Massachusetts, even relatively modest estates may have to go through the probate process. This process involves rules intended to assure that the estate assets are protected until those who may have claims against the estate have notice and the opportunity to make those claims, and the assets are properly distributed to the inheritors. Proper distribution is determined either by the terms of a valid will, or, if no valid will exists, according to state law.
In 2012, Massachusetts enacted a comprehensive set of rules, called the Massachusetts Uniform Probate Code (“MUPC”), significantly revising the body of probate law that had been developed over many years. The MUPC established several different forms of probate that may be available depending on the size and complexity of the probate estate. Some of these forms involve minimal court filings and supervision, while others require formal litigation and court approval before distributions can be made.
Which rules will govern an estate, and whether an estate must go through probate at all, will thus depend on a number of factors, including what kind of estate plan the decedent has put in place. Where the estate plan includes a trust to avoid probate, minimize estate taxes, or for other purposes, proper administration can also require knowledge of the relevant laws. If you are seeking legal counsel to advise you concerning your responsibilities and options in handling an estate, or legal representation in the Massachusetts Probate Court, please contact me.