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Boston Elder Law Blog

Having a will and a revocable trust is not enough

Massachusetts residents who engage in estate planning often feel that their job is done once they sign on the dotted line. However, having a will and/or a revocable trust is not enough to ensure that the assets will end up with the proper heir or beneficiary. The property needs to be properly titled and beneficiary designations on other accounts need to be in line with the rest of the estate plan.

Retirement accounts, such as 401(k)s and IRAs, require that a beneficiary be designated when they are opened. Regardless of what a will or trust might say, those accounts will be distributed to the person designated. Other accounts, such as bank accounts, could have payable on death (POD) or transfer on death (TOD) designations. Therefore, they need to be reviewed periodically or whenever a change is made to the remainder of the estate plan to ensure that the funds are still going to the intended person.

Estate planning is essential to asset protection

Even if many Massachusetts residents have estate plans, that does not mean that all of their assets will pass to loved ones in accordance with their wishes. Even so, having an estate plan is better than not having one at all, since estate planning is essential to asset protection. Some people might be surprised to know that state law can dictate where some or all of a person's assets will go after death -- even if an estate plan is in place.

Not having an estate plan at all means that assets will pass in accordance with Massachusetts' laws of intestacy. Laws also dictate that some assets, such as life insurance policies and retirement accounts, pass to beneficiaries in accordance with designations on file for the accounts, regardless of what the account holders' wills and/or trusts might say. Therefore, it is imperative not only to have an estate plan in place but also to review it occasionally to ensure that it still reflects current wishes.

Before executing powers of attorney, consider this

Now that people are living longer thanks to medical advancements, more Massachusetts residents should consider what would happen when they are no longer able to carry out daily activities without assistance. Most people consider powers of attorney for a time when they are completely unable to care for themselves or make decisions on their own. However, most people who are ultimately considered to be incapacitated experienced a decline in mental function that did not happen overnight.

Therefore, it might be a good idea to consider providing a trusted agent with the ability to perform certain functions on an individual's behalf when it becomes necessary. This would allow the individual to continue to handle certain aspects of his or her finances while obtaining assistance where needed. For example, it might become difficult to write due to debilitating arthritis or a stroke. The individual would maintain control over the decision-making process, but he or she would have help in carrying out those decisions.

Don't forget about digital assets when creating an estate plan

Many Massachusetts residents have a significant online life. When estate planning, those digital assets need to be taken into consideration just like any other assets. Failing to ensure that family members, or at least the executor of the estate, have access to online assets could be disastrous since current law has yet to catch up to technology and obtaining access to certain accounts (financial or social) can be problematic. 

There are a number of services with which a person's digital information can be stored online. This would allow a designated person -- or persons if desired -- access to all of the necessary information. Otherwise, tracking down digital assets could be just as problematic as gaining access without a username and password. Some will even help with estate planning documents, but they cannot account for every individual's needs.

No will? The fate of Prince's assets could take years to resolve

By now, nearly everyone across the globe has heard about the passing of music legend Prince. Considering how protective the artist was when it came to his music, it might surprise Massachusetts readers that it appears that he had no will. It could take years before the fate of his assets is decided.

His sister has already petitioned the court to appoint an administrator to handle his estate. In it, she reveals that the music legend had six full or half siblings (that number includes her). Whoever ends up with the rights to his music will have the freedom to do what he, she or they want to with it despite how Prince protected it during his life.

Estate planning for a second marriage focuses on asset protection

Finding love for the second time can be exciting, but it can also create an estate planning challenge -- especially if there are children from a prior marriage involved. When a Massachusetts resident is getting married for the second time, asset protection becomes a focal point. Many people want to provide for their new spouses in the event of their deaths, but they also want to ensure that their existing children are not denied their inheritances.

By law, surviving spouses are entitled to a certain percentage of a decedent's estate in the absence of a will and other estate planning documents to the contrary. In this eventuality, the children from a prior marriage might not receive what the deceased spouse would have wanted. Therefore, it is essential that estate planning documents be updated to recognize the new spouse and protect children.

Contemplating the probate process is often uncomfortable

The fact of the matter is that everyone will die someday, and many people could end up incapacitated beforehand. Most Massachusetts residents would accept these statements to be true, yet when it comes time to contemplate how they would like the probate process to go when they pass away, it can be uncomfortable. In fact, it can be uncomfortable enough that many people fail to engage in estate planning even when they know they should.

Unfortunately, the discomfort extends beyond having to face that the inevitable will happen one day. The estate planning process also forces people to look at their relationships with those closest to them. For instance, it might require an individual to face the hard truth that the relationship with a child or sibling has degraded to a point where that person would not be a consideration to make decisions on his or her behalf if the need arose.

For many people, the hardest part of estate planning is beginning

No one likes to contemplate his or her own demise or a time when someone else may need to make important decisions because he or she is not able. That may be why one of the hardest decisions for most Massachusetts residents to make is to begin the estate planning process. Once begun, other decisions can be made that will give the individual and family members peace of mind that a plan is in place.

For instance, an individual will want to choose one or more parties to make decisions regarding the health care and financial matters of the individual in the event that he or she is either permanently or temporarily incapacitated due to an illness or injury. The individual should trust that the person or persons appointed understand what he or she would want and will carry out those wishes. These documents can be executed in conjunction with other arrangements for long term care.

Keeping the probate process family friendly

One of the goals of estate planning for many Massachusetts residents is to eliminate -- or at least minimize -- any potential arguments among family members. Making the probate process family friendly is possible, but it takes some work up front. Once an estate plan is made, it will need to be reviewed and updated as needed to ensure that it still meets this and other goals.

Many Massachusetts residents are familiar with the old adage that change is the only constant in life. This means that an estate plan created five to 10 years ago could need some changes -- especially if there have been any major life events within that time, such as marriages, births or divorces, among other things. In addition, property could be bought or sold, which means that current documents could be disposing of property that no longer owned while not accounting for new property.

Getting through the probate process as an executor

Being the executor of an estate could be an intimidating responsibility for a Massachusetts resident. Many people are not quite sure what they are supposed to do in this position. Fortunately, understanding the duties can help, and it is not necessary to go through the probate process alone.

An executor has three main duties. These are to locate all of the decedent's assets, pay his or her bills and distribute whatever assets are remaining to the heirs. Perhaps the most time-consuming and tedious of these tasks is gathering the information about certain assets and securing all physical and digital assets.

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