A Will is an essential part of every estate plan. It is a legal document by which a person communicates their desires as to how their property is to be distributed at their passing away. If a person passes away without a will, their property is distributed according to their State’s laws.
Some of the many benefits of having a Will is that it will help reduce the likelihood of family fights and discord about your intentions regarding the distribution of your estate. A Will also allows you to make knowledgeable decisions about who will look after your minor children.
There are numerous legal formalities to make a Will valid in Massachusetts. Among other requirements, it must be signed by the testator and two witnesses. There are other important requirements that I will review with you to make sure your Will is complete and valid.
Even though most Wills presented to the Probate Courts are recognized as valid and the instructions are followed without any controversy, sometimes a Will is contested. Will contests are often brought by a sibling, the deceased’ spouse or other persons convinced of their right to inherit.
These contests usually fall under 3 categories: Fraud or undue influence, Mistake, and Incapacity of the testator.
As an experienced and thorough attorney, I will help you draft your Will so that your wishes are carried out exactly how you want after you’re gone.
Advanced Directive & Living Wills
Not to be confused with a Last Will & Testament, a Living Will is a legal document that allows a person to state their wishes for end-of-life medical care, in the event they become unable to communicate their choices. An advanced directive is a set of directions someone prepares prior to ill health that determines their healthcare wishes. A Living Will describes medical treatments you would and would not want to be put in place to keep you alive. It also includes your wishes for other medical decisions such as organ donation or pain management. Living Wills are not legally valid in Massachusetts.
A Pour-Over Will is a legal document that tells the probate court to move any remaining assets directly into your formally established Revocable Living Trust at your passing away. These assets are distributed to the beneficiaries of the trust. Similar to a Last Will and Testament, a Pour-Over Will nominates an Executor of your estate who will manage and look after the entire probate process. The Executor will pay off outstanding debts. A Pour-Over Will is also the correct legal document to designate a guardian for your minor children.
Revocable Living Trust
A common estate planning tool is a revocable living trust. In addition to deciding who will get your property when you pass away, there are many advantages to this estate planning approach.
Among them is your ability to control and maintain privacy over your estate after you’re gone. Wills are public documents, whereas trusts are not. Revocable Living Trusts are a great planning strategy for keeping intrusive people out of your business.
Revocable Living Trusts are a great way to save on time and cost of probate which is associated with Wills. Property in a revocable living trust does not need to go through the probate process.
Since trust distributions are not made public, trusts provide an additional layer of protection from court challenges. In comparison, a Will is made a public record after it is probated, thereby increasing the potential for court challenges.
Another advantage of a Revocable Living Trust is that it enables you to commission your spouse, child, relative, or other trusted individual to take care of your assets should you become incapacitated and not capable to take care of your own affairs. Since Wills only become effective after you pass away, they are unavailing in avoiding guardianship and conservatorship proceedings through your life.
A HIPAA Authorization Form is a legal document that gives your physician and health care providers the authority to disclose your medical information to persons you select. This document is very important because privacy laws place strong restrictions and limitations on anyone trying to learn about your health and care without this release form. This is especially important for your parents, spouse, children, or other trusted persons who would potentially be denied access to information about your healthcare without your explicit permission through a HIPAA Release Form.
Durable Medical Power of Attorney
A Durable Medical Power of Attorney, also known as a health care proxy, is a legal document that names an agent to make medical decisions in your interest. This authority may be granted right away when you sign the document or if you become incapacitated as determined by a licensed physician. The powers given to your agent remain in effect even if you become incapacitated or disabled.
Durable Financial Power of Attorney
A Durable Financial Power of Attorney gives authority to your agent to handle financial matters on your behalf. This document allows your agent to manage investments, sell real estate, file tax returns, pay bills, and handle most financial matters on your behalf. A financial power of attorney can take into effect as soon as you sign the document or if you become incapacitated. Naturally, the powers granted in a Durable Financial Power of Attorney do not expire upon you becoming incapacitated or disabled.
Spousal Lifetime Access Trust (SLAT)
A Spousal Lifetime Access Trust is an irrevocable trust formed by one spouse for the benefit of the other as well as other members of the family such as children and or grandchildren. A SLAT allows a married couple to make gifts to a trust, remove assets from your estate, protect those assets from creditors all while remaining a beneficiary.
Irrevocable Life Insurance Trust (ILIT)
The primary purpose of an ILIT is to hold one or more life insurance policies in a manner that avoids federal estate tax. Proper drafting and funding of an ILIT should result in your loved ones receiving all of your life insurance proceeds free of estate tax.
A Disclaimer Trust has set provisions that are usually contained in a Will which enable a surviving spouse to place assets in the trust by disclaiming ownership of part of the estate. Disclaimed property is placed into the trust without being taxed.
A Dynasty Trust is a generation to generation trust created to pass wealth while avoiding estate tax, gift tax and transfer tax for the duration of the assets staying in the trust. The primary distinction of this type of trust is its long duration.
Also known as an intentionally defective grantor trust, it is commonly used to reduce estate taxes. The way it works is that the grantor forms a trust, moves assets into the trust but keeps the power to reclaim the trust corpus by replacing other property of comparable value. The grantor keeps this power because the trusts’ income is taxable to the grantor.
Grantor Retained Annuity Trust (GRAT)
Creating a GRAT requires the Grantor to give assets to an Irrevocable Trust and receiving an annuity. This type of planning is usually done to transfer assets to the descendants without triggering the gift tax.
Qualified Domestic Trust (QDOT)
This is a great way for a United States citizen spouse to transfer assets for the non-citizen spouse’s care without prompting taxes
Qualified Personal Resident Trust (QPRT)
QPRT planning allows parents to convey a home to descendants with a small gift tax. The Grantor places the home to descendants with a small gift tax. The Grantor places the home in the Irrevocable Trust and acquires the right to use the home without paying rent.
As the name implies, this Irrevocable Trust is typically used for the beneficiary’s education.
Charitable Remainder Annuity Trust (CRAT)
The Grantor transfers assets to a Charitable Irrevocable trust and collects a predetermined annuity payment.
Charitable Remainder Uni Trust (CRUT)
This type of charitable estate planning involves the grantor transferring assets to an irrevocable trust and receiving annuity compensation that is relative to the assets fair market value as opposed to a predetermined annual amount.
A UniTrust is an Irrevocable Trust that distributes assets to the beneficiary determined by the total assets in the trust at any given time. Since a UniTrust doesn’t give the beneficiary all income which can change from year to year the beneficiary receives an amount every year even if there was no income in the preceding year.
A Bypass Trust is an estate planning tool that safeguards the first spouse’s estate tax exemption. The surviving spouse has access to assets, however, upon the surviving spouse's passing away, the residual assets bypass that spouse's estate tax-free for the descendants.
Credit Shelter Trust
This estate planning technique allows the surviving spouse to have access to the trust funds along with the added benefit of at the surviving spouse's passing away, the residual assets pass to the descendants free of estate and generation-skipping taxes. Therefore the deceased spouse's estate and generation-skipping tax exemption is “sheltered” and safeguarded.
A Marital Trust is an estate planning technique that is often used with Bypass or Credit Shelter Trust to maintain the part of the deceased spouse's assets that go over the death tax credit. The assets are kept for the living spouse, sheltered from future spouses taxable estate. When drafted carefully and correctly, the trust meets the requirements as part of the marital exemption.
This estate planning technique is used by married couples. It is a combination of a Credit Shelter Trust (A Trust) and a Marital Trust (B Trust). The deceased spouse’s assets are sheltered in a protective trust but the distinctive features of this planning technique are that the tax-exempt assets are kept independent from the assets which are not tax-exempt at the first spouse's passing away.
Under current Massachusetts law, a trust may be set up for the care of your animal. This is one of the best planning methods to ensure the best quality of life for your pet after you pass away.
Prenuptial & Postnuptial Agreements
These are written contracts entered into by a couple concerning the ownership of their respective assets should the marriage fail. The biggest difference between prenuptial agreements and postnuptial agreements is the date of creation. A prenuptial agreement is signed before two people are married and a postnuptial agreement is signed after marriage.