Massachusetts Estate Planning Basics

Who needs a will?

Everyone over the age of 18 should have a basic will at minimum.  Those in the greatest need are those who have experienced a major life change, such as:

(a) Marriage or divorce;

(b) Death of a family member or beneficiary;

(c) Substantial change in asset value;

(d) Birth of a new family member;

(e) Move to another state;

(d) Acquisition of new property; and

(f) Change in tax laws since last estate plan.

What happens if a person dies without a will?

If a person dies intestate, his or her property will be distributed according to a statutory formula, known as the laws of “intestate succession.” Unfortunately, these laws are inflexible and make no exceptions for those in unusual need.

Does a will enable a person’s estate to avoid probate?

No. However, it can significantly reduce the cost and delay of the probate process.

How can I make a will?

The laws of each state establish the formal requirements for creating a valid will. In Massachusetts, the technical formalities required for the execution of a will must be followed precisely.

The drafting of a will can be complex and involves the making of decisions requiring professional judgment. It is best to find a practicing estate planning lawyer to draft your will. Hand-written or fill-in-the-blank kits may not suit your particular needs and could, in fact, create more problems in the future.

How much does a will cost?

Although a professionally prepared will may cost a few hundred dollars, it can save thousands of dollars for your estate. Please refer to the Fees and Payments page for a list of our prices.

What is a health care proxy?

Under Massachusetts law, if you are competent and at least 18 years years old you may appoint another person – called your agent – to make decisions about your health care if you should become unable to do so. The document in which you name this person is called a health care proxy.

How does a health care proxy work?

The person you choose as your health care agent will be called upon to make decisions about your medical care only if your health care provider determines that you are unable to make or communicate such choices for yourself – for example, if you were unconscious, paralyzed or mentally incapacitated. Your agent is required to make decisions consistent with your religious or moral beliefs, including any instructions you may have put in a living will.

What is a Power of Attorney and what is it used for?

The Power of Attorney that is most commonly used is known as the Durable Power of Attorney (DPA). The DPA allows you to carry out your business and financial affairs if you become disabled by granting broad powers to an appointed agent. By doing so, a person can avoid having the probate court appoint a guardian or conservator to make decisions for them when they become disabled (which is very expensive and time-consuming).

What is a trust?

A trust is a legal relationship under which one individual (the “donor” or “settlor”) provides for the transfer of property to another (the “trustee”), who holds and manages the trust property for the beneficiaries.

What is the purpose of creating a trust?

Trusts often are created for one or more of the following reasons:

(a) Avoiding public disclosure of assets and financial data;

(b) Consistent and uninterrupted management of assets before and/or after the donor’s death, illness or disability;

(c) Preserving assets by preventing the beneficiaries, or their creditors, from gaining direct access to the trust property;

(d) Reducing income and/or estate taxes; and/or

(e) Eliminating or lessoning costs and delays associated with probate administration.

When should a person create a trust?

You should only create a trust when there is a need or specific advantage, such as:

(a) Relief from the burdens of financial management;

(b) Creation of a flexible estate plan and minimizing estate taxes;

(c) As a vehicle for lifetime gifting;

(d) Providing support for an elderly or disabled family member;

(e) Shifting income and tax liability for a period of time;

(f) Facilitating charitable planning; or

(g) Avoiding public disclosure of assets in the probate process.

What is the lawyer’s role in creating a trust?

Since a trust is part of a comprehensive estate plan, it should be established only after the most careful consideration has been given to its advantages and disadvantages. A lawyer can help in several ways, including:

(a) Deciding whether a trust will meet your estate planning objectives;

(b) Preparing the trust documents and explaining how it will operate and what the tax consequences will be;

(c) Completing the details involved in funding your trust during your lifetime as well as the best way to rearrange your property so that it reaches the trust with a minimum of delay and expense at your death;

(d) Selecting the appropriate trustee and reviewing with you the trustee’s performance to insure that the trustee’s duties are properly carried out.