If you care about what happens to your property after you pass away, you should have a will. If you pass away without a will, the Commonwealth of Massachusetts directs who inherits your property so that your relatives, friends, and favorite charities may get nothing.
It is very important to make a will if you are not married to your partner. This is because the law does not automatically recognize unmarried partners as having the same rights as lawfully married persons. If you fail to make a will, even if you and your partner have lived together for many years, even decades, your partner may be left with nothing if you have not made a will.
A will is also of vital importance if you have children or dependents that may not be able to take care of themselves. If you do not have a will, there could be uncertainty about who will look after them and provide for them should you pass away. A simple will allows you to designate potential guardians for your minor children.
Most people can benefit from a “simple will”, which is generally suitable for everyone and can be prepared by The Law Offices of Lungo-Koehn & Collins quickly and often at a low cost.
Massachusetts Health Care Proxy
A Massachusetts Health Care Proxy is a legal document that allows you to name someone that you know and trust to make health care decisions for you in case you become unable to make or communicate those decisions. The person you name is often called your “Agent”. This is a very important document because it concerns not only the choices you make about your health care but also the relationships you have with your physician, loved ones, and other people who may become involved with your care.
Your Agent will only be able to make decisions about your health care when you are, for whatever reason, unable to make those decisions for yourself. This means that your Agent can make critical health care decisions that will affect you if you become temporarily unconscious, are in a coma, or have some other problem that is preventing you from making or communicating your health care decisions. Your Agent cannot make any decisions for you until your doctor determines, in writing, that you lack the ability to make those health care decisions for yourself. With your authority, your Agent can make any health care decision that you could, if you were able. If you give your Agent complete and full authority to act on your behalf, your Agent can consent to or refuse any medical treatment, including treatment that could keep you alive. This is why much thought and consideration should be given to who you choose as your Agent.
Your Agent will make decisions for you only after a discussion with your doctor or health care provider and after fully evaluating and analyzing all the options regarding your diagnosis, prognosis, and treatment of your illness. In addition, your Agent has the legal right to obtain any and all information about your health care, including confidential medical information that may be necessary in order for your Agent to make informed health care decisions on your behalf.
Your Agent will make meaningful health care decisions according to your wishes or according to your Agent’s understanding of your wishes that may have permanent and irreversible consequences for you. Your Agent may also take into account your religious, spiritual, ethical, or moral beliefs. It may be advisable for you to speak with your doctor, clergy, or other trusted individuals before giving authorization to your Agent.
Durable Power of Attorney and Guardianships
A Massachusetts Durable Power of Attorney allows your appointed “attorney-in-fact” to maintain your financial affairs if you become disabled and lack the capacity to handle your own financial affairs. If you become disabled and lack the capacity to handle your finances and you do not have a properly drawn Durable Power of Attorney, then it would be necessary to formally petition the probate court to have a guardian or conservator appointed by a judge to make decisions for you when you are disabled or lack the capacity to do so. The process of getting a guardian or conservator appointed can be anxiety provoking for your loved ones because it creates uncertainty about your legal interests and because the judge can appoint a complete stranger to manage your affairs. This is often an extremely expensive and time consuming public affair that can be avoided with proper planning and forethought.
A Massachusetts Durable Power of Attorney can allow for:
- your wishes to be carried out pursuant to your written instructions;
- you to decide who will make your decisions for you, not a stranger; and
- saving thousands in legal fees by avoiding court proceedings.
A Durable Power of Attorney in Massachusetts is commonly one of the following:
- A “present” Durable Power of Attorney is when the power to take action on your behalf is immediately transferred to your attorney-in-fact.
- A “springing” Durable Power of Attorney only comes into effect upon your future or later disability as determined by your doctor.
With a “springing” Durable Power of Attorney, you will maintain complete control over your financial affairs until you become incapacitated as stated by a physician. Only after you are determined to be incapacitated will the person you have appointed in your Durable Power of Attorney take over your financial affairs and have full authority to act on your behalf within the specific guidelines you have previously established in writing.
The person who you name in your Durable Power of Attorney is called an “attorney-in-fact”. Usually, this person would be your spouse or other trusted family member, loved one, or friend. Your attorney-in-fact can pay your bills, deposit checks, handle tax matters, buy and sell stocks, invest in securities, and do all of the things that you could do for yourself. In addition, you may revoke the Durable Power of Attorney at any time, so long as you are still competent.
A Durable Power of Attorney can avoid uncertainty, promote peace of mind, and possibly save you a substantial amount of money by avoiding costly court proceedings to have a guardian chosen to manage your financial and legal affairs.
At the Law Offices of Lungo-Koehn & Collins we can help you with all your estate planning needs including drafting your durable Power of Attorney document.
Many people are unclear about what a Trust is, how it differs from a Will, and what it can and cannot do. There are several types of Trusts, but the one main benefit of most Trusts is that they will keep your estate out of probate after your death and allow for greater privacy regarding your estate and those receiving the benefits of your thoughtful planning.
The main difference between a Trust and a Will is that with a Trust, your property will not go through the probate process when you pass. With a Will, the transfer of property takes place at your death and must go through probate, which means most all of your affairs have to pass through the court system to determine the validity of the Will and the legalities concerning any property being dispersed. When you create a Trust, you are transferring your property to a Trust while you are still alive, and it continues on after you pass away and is governed in large part by the terms that you choose, which are written into your specific Trust.
To create a Trust, you transfer your property, whether real property or personal property and other assets, such as bank accounts, stocks, bonds, or other investments, to a person that you trust who is called a “trustee”. You no longer legally own what you have put into your Trust because the Trust is now the owner. However, you can still have access and the ability to use and enjoy what you have put into your Trust while you are alive. You have the right to direct that your Trust pay out a certain amount of income to you during your lifetime, and upon your death, whatever is still in the Trust will be given to your beneficiaries that you have named in your Trust, and your property will avoid the probate process after you pass. You must name a trustee to manage the trust property and follow the terms of the Trust. You may be your own trustee, meaning that you can be the person in charge of all of the trust property while you are alive, and after your death, your Trust would be passed onto a successor trustee that was named by you when you created the Trust.
There are many different types of Trusts, but there are two basic types commonly known as an inter vivos Trust or Living Trust and a Testamentary Trust. A Living Trust is created and used while you are alive, and a Testamentary Trust is carried out only after your death by instructions given by you while you were alive. There are also differences between revocable and irrevocable Trusts. A revocable Trust can be amended or revoked at anytime by the person in charge of it. However, if the Trust does not specifically state that the Trust can be revoked, altered or amended, then it is an irrevocable Trust and cannot ever be changed. There are certain benefits and disadvantages to consider, and The Law Offices of Lungo-Koehn & Collins can advise you regarding what is best for your particular needs at the time.
People have different reasons for creating Trusts, such as to provide care and support for minors, to pay for educational expenses or medical expenses, to hold real estate, cash, investments and securities or other types of property, or simply to keep their legal and financial affairs private. Some people use a Trust to protect their assets from lawsuits and to protect their assets from being taken away if they need to go into a nursing home. These matters can get complicated, but like many areas involving the law, pre-planning can often solve potential problems before they become actual problems.
What Your Attorney Will Need To Know
In order to be able to represent you and achieve your estate planning goals, we will need to know certain details in order to help you. The following is a basic list of what we will need from you, but additional information may also be required depending on the facts and circumstances that are involved.
- What You Own. We will need information about everything you own, including real estate, personal property, valuables, stocks, bonds, securities, investments, bank accounts, insurance policies, retirement plans, pensions or other benefits, and information about any businesses you own.
- Who Gets What? Who do you want to leave your assets to? How do you wish to divide your property among your loved ones, friends or perhaps charities? Do you want any conditions attached to the gifts?
- Family and Beneficiaries. We need to know details of your family and marital status, whether you are divorced, re-married, or living with a partner. We need to know the names, ages, locations, and marital status of your children, grandchildren or other dependents, or if any of your children are minors. We also need to know if there are any running disputes or hard feelings among any of these people in order to take appropriate measures to assure your wishes are carried out without delay or circumvention.
- Executor of Your Will. You must tell us who you wish to name as Executor of your will. The Executor is the person who ensures that all of your wishes are carried out as stated in your will. You may choose more than one Executor, and those persons may be family, close friends, or a professional, such as your attorney. Ideally, you should choose someone who is familiar with your estate and has the ability to undertake the sometimes long term process of administering an estate to conclusion.
- Other Wishes. If you have particular wishes regarding your final arrangements, including your wake, funeral, religious requirements, whether to be buried or cremated, or if you are an organ donor, be sure to let your attorney know about these or any other details that are meaningful to you.
- Keep Your Will Up-To-Date. It is advisable to review your will every five years and whenever there is any major life change, such as getting separated, married, divorced, having a child through birth or adoption, or purchasing real estate or any other significant item of expense.
Call today for a free Consultation at the Law Offices of Lungo-Koehn & Colli