Frequently Asked Questions about Estate Planning
The Estate Planning Team at Estate and Elder Law Advisory PLLC • Sharon, MA Estate Planning and Elder Law Firm
Estate planning can often seem overwhelming and confusing. To add some clarity to the process, our attorneys have compiled a list of our FAQs about estate planning in the space below. If you have further inquiries, do not hesitate to contact our office, and we will happily answer your questions.
What is Probate?
Probate is the court and process that looks after people who cannot make their own personal, health care and financial decisions. These people fall into three general categories: Minor Children (under age 18 in most states); Incapacitated Adults; and People who have died without legal arrangements to avoid probate. Probate proceedings can be expensive and time-consuming. Additionally, the court proceeding and associated documents are all a matter of public record. Many people choose to avoid probate in order to save money, spare their heirs a legal hassle, and keep their personal affairs private.
What is Joint Tenancy with Rights of Survivorship? (in some states “Tenancy by the Entirety” when between spouses)
This is the most common form of asset ownership between spouses. Joint tenancy (or TBE) has the advantage of avoiding probate at the death of the first spouse. However, the surviving spouse should not add the names of other relatives to their assets. Doing so may subject their assets to loss through the debts, bankruptcies, divorces and/or lawsuits of any additional joint tenants. Joint tenancy planning also may result in unnecessary death taxes on the estate of a married couple.
What is a Will?
A will is a crucial legal document that specifies your wishes for distributing your assets and appointing guardians for any minor children after your death. Effective only upon death and after probate court approval, it ensures your assets are distributed according to your wishes, protects minor children by appointing trusted guardians, and can include provisions to minimize estate taxes. Although wills don’t avoid probate, they are an essential part of estate planning, providing peace of mind and a clear directive for managing and protecting your legacy and loved ones.
What is a Living Will?
In Massachusetts, a Living Will is not legally binding, but it serves as a crucial document to guide healthcare decisions. It expresses your wishes regarding life-sustaining treatment if you become incapacitated and unable to communicate your healthcare preferences. While Massachusetts law does not formally recognize Living Wills, they are often incorporated into a Healthcare Proxy, where you appoint an agent to make healthcare decisions on your behalf. This integration helps ensure your healthcare agent is well-informed about your treatment preferences, aiding them in making decisions that align with your wishes, even though the Living Will itself does not hold legal authority.
What does Intestacy mean?
If you die without even a Will (intestate), the legislature of your state has already determined who will inherit your assets and when they will inherit them. You may not agree with their plan, but roughly 70 percent of Americans currently use it.
What are Beneficiary Designations?
You may avoid probate on the transfer of some assets at your death through the use of beneficiary designations. Laws regarding what assets may be transferred without probate (non-probate transfer laws) vary from state to state. Some common examples include life insurance death benefits and bank accounts.
What is a Durable Power of Attorney and when do I need one?
These allow you to appoint someone you know and trust to make your personal health care and financial decisions even when you cannot. If you are incapacitated without these legal documents, then you and your family will be involved in a probate proceeding known as a guardianship and conservatorship. This is the court proceeding where a judge determines who should make these decisions for you under the ongoing supervision of the court.
What is a Revocable Living Trust?
A Revocable Living Trust is a flexible estate planning tool that involves three roles: the trust creators (also known as grantors or trust-makers), the trustees (who manage the trust), and the beneficiaries (who benefit from the trust). For instance, a married couple might establish a trust, manage the assets placed within it, and benefit from those assets during their lifetimes. The trust can appoint successor trustees to manage the assets if the original trustees become incapacitated or pass away. Key provisions within the trust dictate how assets are managed and distributed to beneficiaries upon the trust-maker’s death. With thoughtful planning, a Revocable Living Trust can help manage estate taxes effectively. Additionally, it offers the advantage of managing and distributing assets outside of probate court proceedings, providing privacy and potentially reducing the time and expenses associated with estate settlement.
Who Should Have a Revocable Living Trust?
Whether you are young or old, rich or poor, married or single, if you own titled assets such as a house and want your loved ones to avoid court interference at your death or incapacity, consider a revocable living trust. A trust allows you to bring all of your assets together under one plan.
What is a Durable Power of Attorney?
A Durable Power of Attorney (DPOA) is a legal document that grants someone you trust, often referred to as your agent or attorney-in-fact, the authority to make financial and legal decisions and conduct financial and certain legal transactions on your behalf. What makes it “durable” is that it remains in effect from when you sign it, even if you become incapacitated, ensuring that your financial affairs can be managed according to your wishes without court intervention. This could include paying your bills, managing your investments, or selling property. It’s a powerful tool for estate planning, allowing you to plan for the management of your financial matters with flexibility and security. It’s important to choose someone reliable and trustworthy as your agent, as they will have significant control over your financial assets.
Book An Initial Call With Our Law Office
Get a well-curated estate plan in place now so that you can finally relax and focus on you and your family’s future. Book an initial call with Estate & Elder Law Advisory PLLC to get started now.
