Welcome to my Estate Planning Q&A page where I answer the most common questions about estate planning, wills, trusts, and incapacity documents. If you don’t see an answer to a question you have about estate planning, then chances are we need to talk about your specific situation. Contact me, and we can set up a consultation about your estate plan.
I probably don’t need estate planning because that’s only for really rich people, right?
This is a common misconception. If you have a bank account, a car, a home, or any other items, then you have assets. Those assets will pass to someone after you die. If you want to be able to control who gets those assets, then you need to have an estate plan. In addition, your estate plan should contain incapacity documents, and you should have those whether or not you own any assets. Incapacity documents, discussed in detail further below, provide for your health care and take care of your business matters while you are incapacitated.
What if I don’t have a will or a trust when I die?
If you don’t have a will or trust when you die, then you die intestate. As a consequence, Massachusetts law and the court system will determine who is your representative and who receive your assets. According to Massachusetts law, your closest relative will receive your assets. If you are married, your closest relative is your spouse. If you are not married, then it goes to your closest blood relative, who may be your child, your brother, your cousin, or someone else in your family. If you don’t have a will or trust, the relative who receives your assets may have to pay estate taxes on his or her inheritance. If you have minor children, the other parent will get sole custody. If there is no other parent, then the court system will name a guardian. The guardianship process can take time. Your child might even go to foster care or a relative you would not pick to take care of your child while the court decides on a guardian.
What are the pros and cons of a will?
Most people know about a will. It’s a legal document that states what assets you have and how you want those assets distributed after your death. It is generally a straight-forward document that can be prepared by an attorney for a smaller fee than a trust. A will goes through probate, which means a court will determine its validity. This process is important for several reasons. First, a will is a public document once it begins probate. Second, the process may take 9 months to several years to complete. During that time, necessary assets to pay bills may not be available. Creditors must be paid, and the representative (executor) must make an accounting of the assets. All of that takes time. Third, a probate attorney is hired to handle the probate, and the fees for that legal work can add up quickly, especially if the will is challenged for any reason. Fourth, the will can be challenged, as mentioned, and that can delay the distribution of assets even longer.
What are the pros and cons of a trust?
First off, most people think a trust is something that only people with large estates use. That’s simply not true. A trust is a legal document that can be very helpful in planning how your assets pass to your beneficiaries. One of the biggest pros of a trust is that it avoids probate. That means it is not public, and it also means that there is no delay with the distribution of assets because the court does not have to get involved in those distributions. A trust is also a powerful way to reduce or eliminate estate taxes. In a time when nursing home costs can be almost $20,000 a month, a trust can also ensure your home is protected from a Medicaid lien to pay for that care. A trust costs more than a will but it provides you with much more protection, and you don’t have to worry about your estate spending money on a probate attorney after you die.
When should I create an estate plan?
It’s never too early to create an estate plan. You can always modify and change the plan as time goes on. You definitely want to get your assets protected if you are trying to reduce or eliminate estate taxes. If you are worried about Medicaid and nursing home expenses, then you need to get a trust created as soon as possible because Medicaid will look at your finances for the five years prior to when you needed it. Yes, FIVE years. Make your plan as soon as you can so that you protect your family, your home, your business, and yourself.
How often do I need to update my estate plan?
I tell my clients to review their estate plan once a year. Some things to consider are your representatives and their contact information, your beneficiaries, any marriages or divorces, any new assets that need to be put into a trust or need an additional trust, and any material changes in your finances that might trigger the state or federal estate tax.
What are incapacity documents?
Incapacity documents name individuals who are able to take care of your medical and business needs if you are unable to do so because of an illness, accident, or other disabling event. A health care proxy allows you to name someone who will make medical decisions for you. A durable power of attorney allows you to name someone to make business decisions, such as paying your bills and having access to your bank accounts, for you. An advance directive – called a living will in other jurisdictions – lets the person named your health care proxy know your end-of-life wishes.
Should my child who just turned 18 have an estate plan?
Yes, your child should have an estate plan for several reasons. One major reason is that an estate plan includes incapacity documents. Especially with the COVID pandemic, you want to make sure that your child’s health care wishes are honored. Once your child reaches the age of majority, which is 18 in Massachusetts, you no longer have access to her or his medical documents. You also don’t have access to her or his business accounts, so you can’t get access to any bills that need to be paid while your child is incapacitated.
Does Massachusetts recognize living wills?
In Massachusetts, a living will is called an advance directive. It is not legally enforceable, however, it is a very important part of your incapacity documentation. It gives your health care agent vitally important information if he or she has to made decisions concerning your end-of-life care.
What if I forget to put property in my trust and then I die? Will my estate have to go through probate?
A pour over will should be included with your trust. This type of will simply states that any assets not included in your trust are moved into your trust at your time of death. While it goes through probate, it’s a much simpler and less-expensive process than a regular will, and your assets are not actually made public.
I have seen sad stories about animals who had nowhere to go when their person died. How can I make sure that doesn’t happen to my animal (dog, cat, horse, any other animal)?
In Massachusetts, you can have an animal trust that specifically addresses how you want your animal to be taken care of if you are incapacitated or when you die. You name the caretaker, who takes care of the animal, the trustee, who takes care of the finances, and the trust protector, who makes sure the animal is getting proper care. A pet trust allows your animal to be taken care of if you are incapacitated and when you die. You don’t have to have separate trusts for those different circumstances.
Contact me today to discuss your estate plan.