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Boston Elder Law Blog

It is not a good idea to go through the probate process alone

Everyone wants to save money where they can. For many people, that means doing things themselves. There are many projects that Massachusetts residents can do with little to no repercussions that will not cost them as much as bringing in a professional. However, that philosophy often does not apply to legal issues such as the probate process. Attempting to go it alone could result in costly mistakes that could be even more expensive to fix.

There are three primary mistakes that people make when they go through the process alone. The first is not providing notice of the probate to every potential heir. Even if someone is specifically excluded from the will, the law still requires they be given notice.

Review is an important part of estate planning

Many Massachusetts residents have executed the necessary documentation to provide for their families after they pass away. They might believe that their job is done once the documents are signed. However, estate planning that is done at a particular time in a person's life might need to be modified as the years pass and circumstances change.

Certain events in a person's life might change how they feel about the estate plan. Getting married, divorced or having children or grandchildren could make a person want to rethink how the plan currently reads. In some cases, an individual who is supposed to receive an inheritance dies. As a person ages, his or her wealth could also increase or decrease necessitating a change in how it will be distributed.

What Massachusetts residents should know about wills

The one thing that everyone can count on is that no one lives forever. Nevertheless, most people are not comfortable contemplating their own deaths, so they do not have wills and other estate-planning documents in place. Even though the individual might not be around to suffer the consequences of failing to plan, his or her family will be. 

Without a will, a Massachusetts court will appoint someone to administer an individual's estate. This might not be the person that he or she would have trusted to take care of such matters. Furthermore, state law will determine who inherits the individual's property. Even if an individual discussed who should be given what property upon death, if it is not written out in a will, those wishes mean nothing legally. Whoever inherits the assets is under no legal obligation to share them with anyone else.

What happens to digital assets upon death?

Nearly every Massachusetts resident has some sort of online account whether personal, financial or professional. Many people bank online, have social media accounts and keep their digital photos online. As the law attempts to catch up to the digital revolution that seems to be taking place, people need to take steps to ensure that their digital assets are part of their estate plans so they can be dealt with by family members after death.

Without provisions regarding these assets, they could be lost forever. Family members, or at least the executor or personal representative of an individual's estate, need to be made aware that these assets exist and how to access them. If an individual does not want anyone having access to the usernames and passwords of these accounts until after death, they at least need to be referenced in the will. A written inventory of all online accounts, including social media, along with the information needed to access them can be kept with the original will or in another safe place.

Designing wills to combat disgruntled heirs and beneficiaries

No matter how hard a Massachusetts resident tries, there is always the possibility that an heir or beneficiary will not be happy with an inheritance -- or the lack of one. That person could file a will contest with the probate court, which could delay the distribution of the estate and cost it additional monies that could otherwise be distributed. That is why it is important to design and update wills in order to forestall the potential for those who are disgruntled to cause problems after a family member passes away.

The question is how to prevent -- or at least limit -- this potential. The first line of defense is often to include provisions in the will that penalize anyone who contests the will. Such "no contest" provisions are most effective when the potential contest comes from someone who is already receiving a share of the estate, but believes that he or she is entitled to more. The provisions can either reduce an inheritance by a certain percentage or deny it all together.

Guardianships protect people, but also affect their rights

Through illness, accident or disability, many Massachusetts residents are no longer able to care for themselves or their property. In these cases, family members or other trusted individuals might seek guardianships in order to take care of the incapacitated person (often referred to as the ward). However, the decision to do so should not be taken lightly since many of the ward's rights are taken away in the process.

If a guardian is appointed, the ward will no longer have the right to choose where to live, get married or vote. Furthermore, the ward will no longer be able to make his or her health care decisions -- including end-of-life choices. He or she will not be able to sell, buy or manage property and will no longer be allowed to have a driver's license. Ownership of a weapon (including guns), entering into contracts or filing lawsuits are also rights that are taken away.

Estate planning is necessary for asset protection

Tax authorities and creditors are the two primary threats to the value of an estate in Massachusetts. Thankfully, however, a certain amount of asset protection can be achieved through proper estate planning. Taking the appropriate steps prior to death can help ensure that an individual's heirs and beneficiaries receive the maximum benefit from the estate.

A last will and testament is the first step in this process. It ensures that a person's assets will not come under the purview of the state of Massachusetts for distribution. It provides where an individual's assets are to go after death.

Estate planning can help with asset protection when remarrying

Many Massachusetts residents are fortunate enough to find love more than once in their lives. One of the challenges that these individuals could encounter as they start their new lives is to find a way to provide for children from a prior marriage while also taking care of a new spouse after death. Estate planning can help with asset protection for both when remarrying.

Along with 48 other states, the state of Massachusetts allows for the possibility of a current spouse inheriting a portion of the deceased spouse's estate regardless of what a will provides. This could happen even if the surviving spouse is disinherited in the will. Therefore, creative estate planning will need to be done in order to ensure that everyone an individual wishes to provide for will receive the inheritance intended. 

Powers of attorney are essential parts of estate planning

Most Massachusetts residents focus on what will happen after their deaths when creating estate plans. However, it is just as important, if not more so in some cases, to plan for what will happen in the event that they are not able to care for themselves at some point. This is where powers of attorney become essential.

No one can predict whether he or she will be involved in a serious accident or contract a debilitating illness. During those times, it might not be possible for you to make decisions regarding your health care or your finances. A health care power of attorney allows someone you trust to make decisions on your behalf regarding the medical care you receive. This document is most effective when coupled with a health care proxy that outlines your wishes, which can then be enforced by your medical agent.

Incapacitation and powers of attorney

Estate planning is more than just providing for the distribution of property after death. Powers of attorney are an integral part of an estate plan since they determine who will act on a Massachusetts resident's behalf if he or she becomes incapacitated. Choosing the right people to make these decisions is crucial.

Advance directives advise medical personnel of an individual's wishes regarding health care when they are unable to voice them. However, this document might not be sufficient on its own. Therefore, it is also a good idea to execute a health care power of attorney, which appoints someone else to make medical decisions on that person's behalf when needed. At the very least, the agent should have an understanding of what the individual would want under a variety of medical circumstances.

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