Contesting a Will

massachusetts attorney poa power of attorney health care proxy advance directive living will conservatorship guardianshipI often get asked why I favor a trust over a will when drafting estate plans. Sometimes a will works well for someone, particularly if the estate is very small and simple. One of the big reasons I don’t favor wills is that they are easier to challenge in court than a trust. Challenging or contesting a will can just add more chaos and pain to an already difficult time when someone dies.

A will, unlike a trust, has to go through probate. That means the will is filed in the court and becomes a part of the public record. Anyone can see what assets you had and which ones you left to certain people and organizations. Unfortunately, death can bring out the worst in people. Individuals who you would never think would fight or care about possessions suddenly can become very difficult.

There are several ways a person can challenge your will. He might claim that you were under the undue influence of someone when you drafted your will and that the will does not actually represent your wishes. She might claim that your will was not executed correctly, in accordance with Massachusetts law. He might claim that you didn’t have capacity when you drafted and executed your will, which means you weren’t of “sound mind and body,” due to mental illness or medication. She might claim that there was fraud, such as your signature was forged.

There are certainly situations where these claims may be valid and need to be raised. But when it is a challenge simply brought by someone who is left out of the will or who is angry he or she didn’t inherit something he or she wanted, then it’s an unnecessary delay at an already difficult time.

What happens when you contest a trust? I will discuss that legal question in a future blog post so keep checking back or follow Windhorse Legal on Facebook to see when I post it.

If you have more questions concerning the contesting of wills or want to talk to me about drafting a will or trust, contact me today.

Will vs. Living Will

When I talk to my clients, they often ask if they will get a living will with their documents and how a living will is different from, well, a plain, old regular will. They are actually very different documents.

A will is a legal document that allows you to leave property to certain individuals and organizations when you die. It lists a representative who will oversee the process and make sure your wishes are followed. A will must go through probate, which means it must be submitted to a court for approval. The probate process can take at least 9 months and sometimes years. It is generally a public process so anyone can see what possessions you have left to whom. A will can also be challenged – meaning someone is arguing that it should not be enforced for various reasons – extending the probate process even longer.

A living will is an incapacity document. In Massachusetts, we don’t actually use the term “living will,” which is probably a good thing since it causes so much confusion. We call it an advance directive. It instructs medical personnel about the types of end of life care you want to have and don’t want to have. Interestingly, an advance directive is not legally binding in Massachusetts, unlike the situation in many other states. Why should you have an advance directive if it is not legally enforceable? An advance directive provides end-of-life instructions for your medical personnel as well as your health care proxy, so it is actually a vitally important part of your incapacity documents. Most medical personnel will follow the directions in a properly drafted and executed advance directive. In addition, your health care proxy will undoubtedly be distraught if you are incapacitated to the point of needing end-of-life care. An advance directive takes the pressure off of your proxy having to decide themselves what procedures you want or don’t want at that time.

If you have more questions about wills vs. living wills, aka advance directives, or if you need either or both drafted or updated, please contact me today.

Updating Your Estate Plan

As a part of the estate planning I do for my clients, I contact them each year to see if they need to make any updates or changes to their plan. You may think that once you get your estate plan drafted that you can make some changes just by handwriting in the changes and adding your signature to the change. Not so fast!

There are specific procedures that have to be followed when you execute the documents in your estate plan. According to Massachusetts law, you need a certain number of witnesses and those witnesses must meet certain requirements. You must also have documents notarized. If you do not meet these requirements, then your will, trust, or incapacity documents could be considered invalid after you become incapacitated or die. All that hard work and money that you put into getting your documents drafted correctly by an attorney will be wasted. Even more importantly, you may not receive the care you wanted, and your beneficiaries may not receive the inheritance you left them.

In addition, making a change to your estate plan without having your estate planning attorney do it may have other ramifications. You may put in a term or make a change that is not recognized by Massachusetts. For example, an Irrevocable Medicaid Trust must have certain language in it or it may be successfully challenged by Medicaid, causing you to potentially lose your home to pay for nursing care costs. An estate planning attorney stays current on any state law that may effect estate plans. This allows her to draft documents that meet your needs and are legally binding.

If you haven’t updated your estate plan in the last year or longer, contact me so we can see if you want any changes made, and I can make sure they are done correctly.

What is Intestate?

 wills trustsLet’s back up a minute. What happens if you die without any estate planning at all? No will, no trust, nothing. If this happens, then you die intestate. Several things happen if you die intestate.

Your estate must go through probate if you die intestate. This means the court must get involved to rule on the distribution of your assets because whatever possessions and property you have must, by law, be distributed. If you die without a will or trust, then Massachusetts law dictates how your assets will be distributed. You will not have any say in the matter. The loved ones you leave behind will have to pay legal and court filing fees for probate, will have to wait a long time for your assets to be distributed, and will find that whole process — including what was in your estate and who it goes to — is part of the public record for anyone and everyone to see.

When you die intestate, who gets your assets and how much depends on factors such as whether your spouse survives you, whether your parents survive you, and whether you have any surviving descendants. The intestacy statute( MGL c.190B, §§ 2-101 et seq) also has some explanations that you might not want applied to your estate. For example, relatives of the “half-blood” inherit the same as relatives of the “whole blood.” (MGL c. 190B, § 2-107) In addition, you may have heirs born after your death if they were in gestation at a certain time. (MGL c. 190B, § 2-108) As you can imagine, it can get a bit complicated.

How best to avoid this? Get an estate plan, even if it’s just your incapacity documents and a simple will. That is the best way to make sure your wishes are followed and those you care about are taken care of the way you want.

You Get What You Pay For

power of attorney long term care planning medicaid medicare nursing homeAwhile back, I had a potential client contact me about creating her estate plan. She was well aware that she or her husband might have to go into a nursing home at some point, and she did not want to lose her family home to Medicaid if that happened. I discussed with her at length what I thought would be the best estate plan I could draft to suit her needs. She thought it sounded great and after discussing horses – she had horses in her childhood – I hung up from our conversation and sent her the requested engagement letter and invoice. When I didn’t hear from her after several days, I called to see if she had received the email, and if she had any more questions. Well, she was beside herself. Her husband did not want to do the estate plan because he heard from a neighbor that all they needed was a $150 will by a Suze Orman, the popular celebrity financial advisor. There were no incapacity documents. There was no revocable trust to avoid probate. Perhaps most importantly, there was no Medicaid trust to keep their home safe if one of them needed to go into a nursing home. I think about this family a lot. I worry they might very well lose their family home because the husband listened to a neighbor who listed to a Ms. Orman who is not an attorney (the fine print on her documents says to consult an attorney) instead of talking with a Massachusetts estate planning attorney.

You have invariably seen will forms in office stores, like Office Depot or Staples. You have probably seen websites that provide discounted legal services, such as LegalZoom or Rocket Lawyer. You have probably been tempted by all of them because they are cheaper than an attorney. All these services have fine print disclaimers right on the will form, warning you to see an attorney. There’s a reason for that. Here are some of the dangers of using those services.

1. State law

It is imperative that your estate plan comply with state law. In Massachusetts, we don’t have living wills. We have an advance directive, which is very similar, but it cannot be legally enforced. It is still important to have one so that your health care proxy and medical team know your wishes concerning end of life but it’s not the same as in other states. In addition, Massachusetts, unlike many states, has an estate tax. If your assets total more than one million dollars, the estate tax applies to the entire amount. You may not think you have that amount in assets but your home can easily put you over it because of the high cost of real estate in Massachusetts. You need an attorney to help you navigate these waters and make a plan that suits your situation.

2.  Medicaid

advance directive health care proxy long term care power of attorney medicaid medicareIf you have to go into a nursing home, you may wind up paying upwards of $100,000 a year or more for care. For this reason, many people rely on Medicaid to help out. Medicaid may try to reach your assets after you die to pay for that care. One route they take is to try to get the family home. If you don’t have an Irrevocable Medicaid Trust, you may lose your home. This trust is a complicated legal document that you should have an attorney draft to make sure it can withstand an attack from Medicaid.

3.  Questions and Answers

Let’s face it, the law can be intimidating and confusing. Throw in topics like incapacity, death, and family issues, and it can just be overwhelming. That’s where a good estate planning attorney can really help you out much better than a blank form from an office store or a bland, online legal document company. I get to know my clients and their individual situations. I give them options that they don’t even know exist. I help them consider tough issues, like ways to reduce family discord over assets. I am not only an attorney. I am also a counsellor at law. I take time to talk to you about your situation and what the best tools are that fit your situation.

Yes, you’re going to pay more to talk to and work with an attorney than you will buying a form from an office store or using an online legal service. But that time with the attorney is well worth it. The last thing you want to do is go to your estate planning documents when you need them and find that you will lose your home to Medicaid or pay huge estate taxes because that online legal service didn’t advise you about your state law. Protect yourself, your family, and your assets by using an attorney for your estate plan.