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Boston Elder Law Blog

The benefits of a special needs trust for Massachusetts families

Most Massachusetts parents use estate planning to provide for their children after they pass away. If you are a couple with a special needs child, providing for him or her may take on a greater significance. Using a special needs trust to achieve that goal has numerous benefits for your child.

Simply passing assets directly to a special needs child after death can cause a loss of government benefits that may be essential to the care of your child. Putting assets into a trust will not add them to your child's estate, but will provide your child with the benefit of them. You can also control how the assets are managed and distributed by the trustee for the benefit of your child without jeopardizing access to government benefits.

Estate planning options are available for every situation

Every Massachusetts family has different needs and dynamics when it comes to financial, emotional and health issues. No one can accurately predict what will happen in the future, and it is advisable to be prepared for any eventuality. Estate planning options are available that can help in just about every circumstance.

When meeting with a Massachusetts attorney about an estate plan, it will be necessary to provide as much detail as possible about your current financial situation, any health issues and basic information about your family. These details can help in devising a plan that will meet all of your and your family's needs. Without them, your estate plan could be inadequate, which means that your wishes may not be followed.

Wills are still a necessary part of a Massachusetts estate plan

Some Massachusetts residents may no longer believe that wills are necessary since most property can be transferred to friends and family in other ways. It is true that there are other means by which a person's assets can be distributed to friends and family. However, that does not mean that wills are no longer a valuable part of an estate plan.

For some people in Massachusetts, a will may be the best way to express their wishes after death. This one document can handle the distribution of all of an individual's assets, if desired. However, distribution of the estate generally does not occur until the end of the probate process, which could take months or even years, depending on the circumstances.

Estate planning for trickier assets like pets and airline miles

It is easier to pass on some of a Massachusetts resident's assets than others. Some property requires extra steps during estate planning in order to properly distribute them after death. Two of these items are pets and airline miles.

Nowadays, pets are treated like members of the family. In fact, all but one state has passed "pet trust" legislation. Therefore, if you appoint someone in your will to take care of your pet or pets upon your death, that provision is enforceable by a Massachusetts probate judge. Money may also be left to care for the pet.

Having a will does not mean family can avoid the probate process

It is a misconception that by having a will, family members will not have to go through the Massachusetts courts in order to receive their inheritances. The will must still go through the probate process before that can happen. That could take up to, or more than, a year to complete. Before you complete your estate plan, it may be a good idea to make sure that your family members understand what to expect after your death.

This is due to the fact that here in Massachusetts, creditors have up to a year to file claims against the estate. Before that time begins to run, however, a probate petition will need to be filed, at which time the executor of the will is appointed. Once that step is complete, the notice to creditors is sent and the clock begins.

Robin Williams' children and widow continue battle his assets

Massachusetts fans of Robin Williams may already know that despite what he believed to be a well-constructed estate plan, his widow and his children are still in court. Last year, court documents were filed regarding how the late actor's assets should be classified and therefore divided. Recently, Williams' widow filed documents indicating that she was not receiving enough money from the trust's Reserve Fund to maintain the home he left her.

She believes that his three surviving children are withholding money from the fund to which she is entitled. She claims that the language for the Reserve Fund says that she is to receive any excess net income each year, but she is not receiving it. Further, the money she is receiving is not enough.

Changes in marital status may require changes in estate planning

Estate planning is about preparing for the future, and the sooner that Massachusetts adults create and execute a plan, the better off they and their families may be. Once the documents are executed, many people put them in a safe place and forget about them. The only problem is that estate planning does not end when the documents are signed since one of the few constants in life is that things are going to change.

When those changes occur, an individual needs to review his or her estate plan to determine whether any adjustments need to be made. For example, a person's marital status has a significant effect on an estate plan. Upon marriage, or remarriage, it may be necessary to make changes to account for the current spouse and any children from a prior relationship.

Many assets do not have to go through the probate process

Many Massachusetts residents want to maximize any inheritance left to their loved ones. One way to do this is to limit the number of assets that must go through the probate process before being distributed to heirs and beneficiaries. It may still be necessary to file a probate petition and the will, but with proper estate planning, it does not have to be a time-consuming and expensive process.

Many accounts can be passed to loved ones through beneficiary designations (retirement accounts and life insurance policies), payable on death accounts (bank accounts), or transfer on death registrations (often used for vehicles and securities such as stocks and bonds). Real estate can be owned jointly, so that upon the death of one party, the decedent's interest in the property passes to the other owner by operation of law. Of course, holding a piece of real estate jointly with someone else gives the other party certain rights to the property.

Where will a single person's assets go after death?

Single people in Boston may not think that they need an estate plan since they are not married and/or do not have children. Nothing could be farther from the truth. Any adult who has assets typically benefits from at least a basic estate plan in order to avoid dying intestate, which means that state law would dictate how the estate would be distributed. Dying without at least a will may make it unnecessarily challenging for the family members left behind.

A will dictates who inherits certain assets, who will become guardian of any children of minor age and who will be appointed as executor of the estate. The executor is the person who handles the administration of a person's estate after death -- paying bills, distributing assets and taking care of any other tasks that require attention. Choosing the person to perform these duties is potentially the most important decision to be made since an individual needs to be sure that the person is trustworthy and is willing to serve in this capacity. Without a will, the court appoints an administrator of the estate, as opposed to appointing an executor, and that person may not be who the decedent would have picked. Depending on a Boston resident's wishes, other estate-planning documents may be needed.

What is the purpose of a special needs trust?

A person can have special needs as the result of a variety of situations. A disability could be genetic, occur at birth or be the result of a catastrophic accident. Regardless of how a Massachusetts resident became disabled, he or she may be entitled to assets through an inheritance, a settlement or some other means. Using a special needs trust to hold those assets can provide unique protections for the disabled person.

Family members' hearts are often in the right place when they leave an inheritance, but it could jeopardize any potential for the receipt of government benefits. The same risk also exists when a settlement or some other asset is received. Putting assets into a special needs trust means that they will not be considered as income when applying for benefits.

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