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Boston Elder Law Blog

What is an executor's role in estate administration?

When Massachusetts residents are creating their estate plans, one of the most important decisions they have to make is who to appoint as the executor of their estate.  In making this crucial choice, it may be helpful to understand the role that an executor plays in estate administration.  Here is an overview of an executor's responsibilities.

The first thing an executor will need to do is locate the decedent's will and file a petition with the court to begin the probate.  Once the will is admitted to probate and the executor is formally appointed by the court, he or she will need to locate all of the assets owned by the decedent at the time of death.  Once located, he or she must keep them safe and manage them until they are distributed in accordance with the will. 

Discussing powers of attorney and end-of-life choices with family

Nearly every estate plan needs to include not only documents that will deal with the distribution of a Massachusetts resident's property after death, but also documents that become effective if he or she becomes incapacitated. This includes powers of attorney for both financial and health care issues, along with advance directives. Without these instructions and the appointment of someone to make decisions on his or her behalf, an individual's family could end up in a costly and time-consuming legal battle.

Before executing a health care power of attorney, it may be beneficial to consult with the person or persons an individual wants to appoint. If someone does not feel comfortable making those decisions, another person needs to be consulted. For some people, dealing with a loved one's incapacitation is enough, and attempting to add the responsibility of making life and death medical decisions may be too much. 

Wills take care of Massachusetts families after death

Massachusetts residents often spend their lives taking care of their families.  However, only a percentage of people make plans for after they pass away.  Wills provide a vehicle for individuals to support their families after death.

Without at least a will, the state may have to determine how an individual's assets will be distributed, which may not be to the same person or persons that he or she would have liked.  In fact, if a Massachusetts resident is involved in a long term relationship, but not married, his or her assets typically go to family members instead of the person with whom he or she was residing.  Further, anyone with minor children who does not have a will could end up leaving the fate of his or her children to the courts.

The first order of business in estate planning

Many Massachusetts residents think about what will happen to their assets when they pass away.  However, it is just as important to think about how those assets will serve a person while he or she is still alive.  This is why the first order of business in estate planning is to determine just what an individual's estate is worth.

Since Americans are living longer, they need access to their assets for a longer period of time in order to provide for their care as they age.  Without an understanding of what those costs may be, it can be difficult to create a plan.  Therefore, the first step is to gather documentation regarding every asset and liability a person has in order to determine his or her net worth.

Joan Rivers' death is an example of successful estate planning

It may not surprise some Massachusetts residents that Joan Rivers knew for some time that her life was coming to an end. In anticipation of that fact, she engaged in estate planning that not only provided for her daughter and grandson, but also for herself. By executing an advance directive, Rivers' daughter was able to let her go in accordance with her wishes. 

Estate planning is not only about what will happen after a person's death, but also if he or she becomes incapacitated. An advance directive allows an individual to decide for him- or herself what life-saving treatments he or she wants -- or does not want -- ahead of time. Without one, family members may have to take valuable time and money going to court to receive the right to make health care decisions on behalf of a loved one.

Boston parents of minor children should consider wills

When a Boston couple has young children, they may feel as though they have their whole lives ahead of them. Unfortunately, accidents, illnesses and natural disasters can occur at any time without any warning. If something were to happen to the parents of minor children, what would happen to the children? That is why wills are important.

Many parents in Boston and elsewhere believe that one of the most important things they do for their children is keep them safe. Keeping them safe from day-to-day is essential, of course, but parents need to prepare for the possibility that they may not be around to keep them safe before they reach adulthood. One way to do that would be to make arrangements for who will care for them and keep them safe in the case of death.

Do you need a revocable trust or irrevocable trust?

Trusts are created to hold property and provide for beneficiaries in accordance with the terms set forth therein. Massachusetts residents who choose to use trusts do so for many reasons such as avoiding probate, estate taxes or the reach of creditors. If estate taxes and creditors are not a primary issue, then using a revocable trust or irrevocable trust can help avoid probate.

A revocable trust is often referred to as a living trust since they are created and funded during the creator of the trust's lifetime. The benefit of this type of trust is that changes can be made to it or it can even be revoked while the creator of the trust is still alive. Any assets transferred into the trust during life will not be subject to probate upon the individual's death.

What is the purpose of the probate process and how does it work?

Many Massachusetts residents are aware that losing a loved one is difficult. Not only is it necessary to handle the funeral and burial, but any real and personal property owned by the deceased family member will need to be distributed -- hopefully in accordance with a will and/or trust. This distribution and/or transfer of property is the purpose of the probate process, as well as wrapping up any other financial issues of the decedent, including his or her debts.

A loved one's property is transferred to his or her heirs through probate, with some notable exceptions. Assets that pass by "operation of law," meaning they are subject to a beneficiary designation such as life insurance policies and retirement accounts. Any assets owned jointly with the decedent or are gifted during his or her life will also not need to pass through probate. Further, any assets held by a trust will not be subject to probate, which is the court-supervised distribution of assets.

Massachusetts parents may want to set up a trust

Planning for the future can help alleviate stress on your loved ones and yourself. For some people, this can be a straightforward process, but for parents of minors, the process can be slightly more complicated.

Parents in Massachusetts and elsewhere often worry that their children will not have the money that is needed, and if they do, they may worry that the money will be spent unwisely. Fortunately, trusts can ensure that a child does not do without necessities while still giving the parents control, and a trust may be the best option.

Trusts ensure that money is safe, especially regarding beneficiaries who may not be responsible enough at the time. They allow the trustee to create a financial plan for the children and determine when the money should be paid out. Beneficiary trusts allow the beneficiary to use the money for certain actions, but all other actions may be restricted.

Conservatorships and guardianships important in estate planning

Most people in Massachusetts are aware of the uses and purposes of estate planning. However, while you may be aware of the need for estate planning, many people think they can put such decisions off until another day or that the process simply involves deciding how one’s assets will be divided. When people actually sit down to create the important documents that will govern their estate in the event of their death or incapacitation, some are surprised by all of the decisions to be made. Many people may need to be aware of issues surrounding conservatorships and guardianships.

One thing you might need to consider if you provide care for a minor child or incapacitated adult is a guardianship. In the event of your death, you will likely want to ensure that those in your care will be properly cared for. For some, that may result in the minor or adult receiving a settlement. In this situation, a guardian can help make decisions about the distribution of the settlement if it is not held in a trust. Our law firm can assist you in establishing a guardian as well as ensuring that guardians are aware of their responsibilities.

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