Estate Planning

There is always a sense of relief and peace of mind for a Client once he or she has executed their Last Will and Testament.  Estate Planning often ends up getting delayed for one reason or another so it can be extremely satisfying once that will is signed and put away with other important documents.  However, one very common question is “when do I have to look at my will again?”  Despite some attorneys suggesting anywhere between three to five to ten years as a benchmark, there truly no one definitive answer to when a will should be updated.  Here are ten life events that could impact the decision to update or change your Will.

1.
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While a parent’s job may never be done, things get more complicated when that child begins his or her college career.  Parents often understand the importance of having a healthcare power of attorney in place for a spouse or aging parent, but often do not think about how crucial this document is for a recent high school graduate or young adult child.  Most college freshmen are eighteen years old which means they are legal adults and parents are no longer entitled to make decisions on their behalf.  This can cause a problem if there is a medical emergency.

Once a child turns eighteen, his or her parents no longer have any legal say over medical or financial decisions involving the child.
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The loss of a loved one is always difficult, but that pain can be magnified when there is no proper estate planning in place.  The more complicated the family dynamics and the more specific the wishes of the loved one, the more important it is to make sure the proper estate planning is in place.  While you are enjoying the last month of summer and are sitting on the beach and thinking about the future, here are ten common estate planning mistakes to avoid.

1.  Not having a plan in place.
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You’ve fulfilled your estate planning responsibility and have a well-drafted Last Will and Testament in place.  Nice job!  But what happens when there is a big life change (loss of a loved one, new marriage, birth of grandchildren, won the lottery, etc.) and you need to update or change your Will?  One option is to execute a Codicil to amend your Will.   A codicil is a legal document that acts as a supplement to your last will and testament.  In it, you can make changes to your will without having to rewrite your entire original will document.
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Apple recently caught up to Google and Facebook in the ever growing need to find a way to protect digital assets and accounts after an individual passes away.  Now, thanks to the new update to Apple’s iOS 15.2, you designate up to five people as Legacy Contacts who can access the data and personal information stored in your iCloud account.  Until this new feature, when a loved one or family member passed away, it was very difficult to access their digital information locked away in their iPhone or other Apple products, unless your loved one knew their passcode.  This is a great feature that Google and Facebook had already offered which can really help protect your digital assets as well as keep safe old messages, photos, videos, and other media that may hold invaluable sentimental worth to your family.

Statistics show that couples are waiting longer and longer to get married.  In addition, there are many alternatives to marriage, such as domestic partnerships, that are becoming more normalized.  It is important for these couples to understand that there may be a stronger need for estate planning then there is for married couples.  Without proper estate planning, unmarried couples will not inherit or be able to make critical decisions for their significant other.

There are two general purposes to estate planning.
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Emily Misiaszek and her husband created an irrevocable trust during their lifetime, the corpus of which included their home.  The terms of the Irrevocable Trust granted the Misiaszeks the right, during their lifetime, a limited power of appointment to appoint all or any portion of the trust principal to a nonprofit or charitable organization over which they have no controlling interest.  When Ms. Misiaszek applied for MassHealth long-term care benefits, she was denied on the basis that the home was a countable asset.  The Massachusetts Office of Medicaid’s Board of Hearings affirmed MassHealth’s decision, but a Superior Court judge reversed the board’s ineligibility determination.
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One of the most powerful clauses in a will or a trust is the in terrorem clause, which is more commonly referred to as a “no-contest” clause.  In terrorem means “in fear” in Latin and is an appropriate name for the clause as if someone challenges a will or a trust with an in terrorem clause and the challenge is not successful, there can be dire consequences for the challenger.  Namely, a challenger to a will or trust with an in terrorem clause risks losing all of his or her rights and interest under a will or trust.

Almost a year ago, the Massachusetts Appeals Court ruled in the matter of Capobianco v. Dischino, Mass.
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A recent Supreme Judicial Court decision confirmed that MassHealth has a statute of limitations of three years from a beneficiary’s death to file its claim for reimbursement on the beneficiary’s estate or MassHealth’s Claim is completely barred.

The Court recently made this ruling In the Matter of Estate of Kendall, 486 Mass. 522 (2020).  In this matter, Jacqueline Ann Kendall died intestate on August 7, 2014.  At the time of her passing, Ms.
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Testamentary Capacity

by Samuel S. Reidy, Esq.

February 18, 2021

Unfortunately, it has become an all-too-common story.  A loved one is stricken with dementia and during the period he or she does not have possession of all of their facilities, an estate planning change is suddenly made.  Sometimes this new (and often unexpected) estate planning means the changing of beneficiaries in a Will, or a new Health Care Proxy or Durable Power of Attorney being named, or the transfer of real estate.
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One of the three most basic estate planning documents is the health care proxy.  This is the document where an individual gives permission to another person to make health care decisions on their behalf in the event they are incapacitated or unable to make health care decisions for themselves.  This document is especially important in Massachusetts because under Massachusetts law, there is no identified law that allows for the appointment of a default surrogate under any circumstances.  That means that your spouse, parents, and children have no legal right to make health care decisions for you.

Massachusetts is in the minority with regards to the treatment of health care proxies.
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