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Boston Elder Law Blog

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.

Ensuring that Massachusetts residents' wills are valid

Every Massachusetts resident has the right to determine who will receive his or her assets after death. As part of any estate plan, a will is executed that alerts the court and family members that a plan is in place for the disposition of an individual's property after death. However, if wills are not properly executed, they might not be valid when they are needed.

Every state, including Massachusetts, has certain rules and laws regarding how wills need to be executed. First, the testator, who is the person making the will, needs to be an adult. It is also crucial that the individual fully understands the contents of the will. The document needs to be signed in front of witnesses who could be called upon later to testify that it was not signed under duress and the testator was not coerced into signing it. The signature must also be notarized for the same purpose.

Knowing how wills in fit into estate planning

The state of Massachusetts provides for the disposition of a resident's property after death in the absence of an estate plan. However, that does not mean that the property left behind will go to the surviving family or friends that the individual would have chosen. This is the primary reason that wills are part of every estate plan.

In fact, a will is considered the cornerstone of every estate plan. This document lets the state of Massachusetts know that the decedent made arrangements for his or her estate prior to death. It also lets surviving relatives know who is to receive what assets from the estate. The individual will also need to choose someone to be the executor of the estate. The executor is the person who makes sure that the wishes expressed in the will are carried out.

Where to start to protect assets after death

Statistics show that approximately 64 percent of the people in the United States do not have a will, let alone a comprehensive estate plan. Undoubtedly, many of these individuals are Massachusetts residents. Part of the reason why at least some of them have yet to take the necessary steps to protect their assets after death is because they are not sure where to start.

Some Massachusetts residents might also not know when to start. Estate planning is often seen as something that people do later in life. However, the fact of the matter is that everyone is going to die, it is just a matter of when. Being prepared for the inevitable as soon as possible can put the minds of everyone at ease. Even young adults can benefit from having basic estate plans.

Facing mortality is necessary to protect your assets for heirs

Like most people around the country, Massachusetts residents do not want to contemplate their own mortality. This often stops them from protecting their assets so that their chosen heirs ultimately inherit them. Without some estate planning, those assets could unintentionally end up with some family members while other loved ones, friends and charities receive nothing.

Furthermore, without some planning, an estate can be significantly diminished by taxes and other financial obligations that could exist when an individual passes away. In addition, surviving loved ones will be left to deal with everything without any instructions or preparations. Under these circumstances, the probate process can quickly become time consuming, frustrating and expensive.

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