What is “estate planning?”
Most people do not think of themselves as having an “estate,” thinking that the term is reserved for only the highly wealthy. But it is simply a term that refers to the assets you own, including your interests in all real and personal property. In this sense, everyone has an estate. “Estate planning” involves implementing strategies so that your wishes are carried out in the case of your disability or death. Among other things, estate planning involves putting in place decision makers to handle financial and medical decisions when you are unable and directing your assets to your intended beneficiaries following your death in a manner that minimizes such things as taxes, state reimbursement for nursing home fees, and settlement costs.
Why is estate planning important?
The failure to engage in estate planning can have costly and devastating consequences. Unfortunately, many people believe that if they get sick their spouse can handle everything and if they die, their assets will automatically go to their spouse and children. While there are certain default laws that apply where there has been little or no estate planning, failing to take appropriate steps in advance can lead to many unintended consequences, such as losing significant assets to the nursing home or taxation as well as litigation among family members.
What does my estate include?
As noted, your estate includes everything you own. While certain things are obvious, like real estate and personal property (bank accounts, clothes, jewelry, etc.) other interests are also included in your probate estate at death, interests that are less apparent, such as your share of ownership in a business, the value of retirement plans and insurance policies, intellectual property, and possibly assets held in a trust you created, depending on the authority you have over the trust.
What does the typical estate plan include?
Every estate plan is different and depends on the individual’s goals as well as family dynamics, so it is difficult to generalize. However, a number of estate plans require HIPAA waivers, healthcare proxies, and durable powers of attorney to facilitate financial and healthcare decision if you become incapacitated, and wills to dispose of your assets upon death. Some individuals may also benefit for the establishment of living trusts. Living trusts are more likely to be recommended where there are tax issues, minor beneficiaries, and in the case of blended families.
What is elder law? What is an elder law attorney?
Elder law is an umbrella term that encompasses nearly any legal issue that aging individuals regularly face. In the elder law arena, our office primarily engages in planning to preserve assets from the nursing home, as well as filing and litigating applications to obtain MassHealth nursing home benefits. We also litigate guardianship and conservatorship petitions.
What is the difference between a guardian and a conservator?
In a nutshell, guardians are appointed by the court to make healthcare related decisions for an incompetent person. Conservators are similar except they are only empowered to make financial decisions for the person. In an appropriate situation the court may appoint someone to fill both roles.
My spouse’s mind is failing. Do I need to file for a guardian or conservatorship?
It depends on circumstances, but not necessarily. If your spouse executed a properly crafted durable power of attorney giving you the authority to handle his financial affairs you might be able to delay, and possibly completely avoid, seeking court intervention. As his spouse, you will be entitled to make most healthcare decisions on his behalf, unless he has given that authority to another by way of a healthcare proxy or a court has appointed someone else as his guardian.
What is probate?
Probate is a legal process that transfers ownership of property from a person who has died to lawful beneficiaries or beneficiaries of a will. In most cases, the court appoints a Personal Representative (formerly referred to as an Executor or Executrix) to collect, manage, and transfer estate property.
Is probate always necessary?
No. Typically, it is not necessary to probate an estate where the decedent’s property passed to beneficiaries by other means, such as through account beneficiary designations, rights of survivorship on jointly held property, or by living trust.
When is probate required?
Probate can be required in a number of situations, including where there is any question concerning the validity of a decedent’s will, to change title to assets, to pay creditors of the decedent, to obtain the decedent’s medical records, or when the size of the estate is sufficiently large to be taxed.
How long does probate take?
There is a relatively speedy process (called “voluntary administration”) for estates consisting entirely of personal property valued at $25,000 or less, excluding the value of any vehicle. Barring this expedited process, the probate of a will can take approximately 1 to 2 years.
What is involved in probate?
The Probate Court has published a detailed guide concerning the process. It is available here.
LITIGATION & APPEALS
MassHealth denied my spouse’s application for nursing home benefits. What can I do?
Initial denials may be challenged at an administrative “Fair Hearing.” Beyond that, applicants may seek appellate relief in the Superior Court, and if need be, the Appeals Court and the Supreme Judicial Court, the Commonwealth’s highest court.
SPECIAL NEEDS PLANNING
What is a Special Needs Trust?
A Special Needs Trust, or a “D4A” Trust, is a trust funded with the disabled beneficiary’s own assets. The trust may be nominally funded and it must be established before the beneficiary reaches the age of 65. A major benefit of these trusts is that, aside from the management of assets for the beneficiary, if the beneficiary receives any gifts, bequests, or settlement proceeds from a lawsuit, the funds can be placed into the trust without disqualifying the beneficiary from receiving public benefits.
What is a Supplemental Needs Trust?
Unlike a Special Needs/D4A Trust, a Supplemental Needs Trust is funded with the assets of a third party, typically a parent. A major benefit of this type of trust over a D4A trust is that that the state does not require that the remainder of the trust assets go toward reimbursing the state for benefits paid after the beneficiary’s death.
What is a letter of intent?
A letter of intent is a letter directed to the trustee of a trust benefiting a disabled child. It is typically prepared by a parent with the help of an attorney and provides a highly detailed account of the child’s medical, behavioral, educational, social, and personal needs and preferences.
I’m worried about what will happen to my pets if I become incapacitated or die. Is there anything I can do?
It is legal in Massachusetts to set up a trust for the benefit of a pet. A pet trust is a legally enforceable fiduciary arrangement that provides for the care and maintenance of one or more pets in the event of the owner’s disability or death. It allows the owner to provide instructions for pet care and to direct the management and disbursements of trust funds on the pet’s behalf. It may be created during lifetime or by provision in a will. If the trustee is not the one appointed by the trust to care for the pet, a separate caretaker or “pet guardian” may be appointed. In addition, a separate “trust protector” may also be appointed as an additional check to ensure that the trust purposes are carried out.