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Boston Elder Law Blog

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.

Future health care planning essential for Massachusetts residents

Americans are living longer than ever before. In fact, the average age of the population is on the rise, which makes future health care planning essential for everyone, including Massachusetts residents. One source indicates that when an individual reaches the age of 65, the probability of needing long-term care increases to 70 percent.

The problem is that there is no way to determine the type of care that will be needed. Further, the definition of "long-term" will vary from person to person. Making plans regarding how to afford such care can be problematic.

Preempting family disputes with estate planning

Many people in Massachusetts are aware that Casey Kasem's death was surrounded by controversy, and some say it may be in large part due to his failure to have a proper estate plan. When one party to a second marriage has adult children and marries someone within their children's age range, careful estate planning can help preempt future confrontations. Sitting everyone down and explaining how assets will be distributed in the event of the older spouse's death may put everyone's mind at ease.

This meeting can be as general or specific as desired. As for the documents needed to make sure that both a new spouse and adult children from a prior marriage are taken care of, there are multiple options. One of those options is a revocable trust.

Newly married couples in Massachusetts need wills, too

Newly married couples in Massachusetts are most likely not focused on estate planning. However, getting married is one of those life events that require changes to -- or the creation of -- the parties' wills and other estate-planning documents. Doing so as soon as possible helps ensure that an individual's new family is taken care of should something happen to him or her.

In the flurry of wedding preparations and honeymoons, many people fail to discuss what would happen in the event of incapacitation or death of one or both parties. Now that the festivities are over, it may be a good time to broach the subject. Depending on the parties' circumstances, even if one party had a will prior to the marriage, substantial changes may be needed now.

Proposed regulations may help with long-term health care planning

The population of our country is aging. As such, long-term health care planning -- including insurance policies to cover nursing home and assisted living costs -- becomes increasingly important. The state of Massachusetts is considering regulatory changes to the long-term health care insurance industry in the state in an attempt to provide protections for consumers.

In recent years, the premiums for these insurance policies have gone up significantly. Advocates for the purchasers of this type of insurance product have lobbied the state of Massachusetts to put a cap on the premiums. Unfortunately, the proposed regulatory changes do not include rate caps.

Cohabitation can make estate planning even more important

Many older adults in Massachusetts are foregoing the marriage vows and living together. This may provide some advantages to many couples, but when it comes to what happens if one party becomes incapacitated or dies, it can be problematic. Cohabitation makes estate planning even more important in order to protect the surviving party.

For instance, if the couple is not married, one partner has no legal standing when it comes to healthcare decisions, and a non-family member's right to visit a patient is often limited. Even though the party may know what the incapacitated person's wishes are, he or she may only make suggestions, which no one of obligated to honor. In order to correct this problem, the parties may execute powers of attorney for both healthcare and finances. This would allow the parties to care for each other in appropriate circumstances.

Accounting for all assets, including digital ones

The purpose of an estate plan is to be sure that family is aware of how a Massachusetts resident's estate is to be administered in case of incapacitation or death. In order to effectively do so, family needs to know about every asset the individual owns, including digital ones. Without this information, crucial assets and liabilities could go unnoticed.

Many people have social media accounts, online retail accounts and bank accounts that only exist online. If family members do not know they exist, it might be impossible to properly administer an individual's affairs. Making a detailed list of digital assets can provide the information necessary for family members to adequately take care of them if the individual becomes incapacitated or passes away.

Advance directives do not always work, ask Casey Kasem's family

As many Massachusetts residents are aware, Casey Kasem lent his voice to both television and radio for decades. Now, he is lying in an out-of-state hospital dying, and his family is fighting over how it will happen despite the fact that he signed an advance directive in 2007. His dilemma illustrates how sometimes families end up in court despite their loved ones having advance directives.

Doctors diagnosed Kasem with Parkinson's disease in 2007 and he then appointed his eldest children as his health care proxies. The diagnosis was later changed to Lewy body dementia. When Kasem’s health began to deteriorate, his current wife — who is not the mother of his oldest children — kept them away from him. The battle became heated and one of his children had to get a court order to be allowed to see her own father.

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