Estate Planning

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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Powers of the Personal Representative in Massachusetts

by Samuel S. Reidy, Esq.

August 21, 2020

One area of confusion in Massachusetts estate planning is regarding the powers and responsibilities of an the Personal Representative of an estate (formally referred to as an Executor or Executrix).  When an individual executes his or her Last Will and Testament they have to select a Personal Representative and (often) successor personal representatives.  This is often an area of confusion for the individual finalizing his or her Will.
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One common estate planning question that homeowners and soon-to-be-homeowners in Massachusetts ask is what is the best way to hold title to their real estate.  In Massachusetts, co-owners who purchase real estate have three choices as to how they take title in the deed: (1) tenants in common; (2) joint tenants; and (3) tenants by the entirety.  Each has its own criteria, and pros and cons that are important when deciding how to purchase your property.

The first way of holding title to real estate in Massachusetts is the default form of title for non-married persons: tenants in common.  If a deed does not specify how the property is held, Massachusetts law automatically holds that it is held as tenants in common.
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Online and digital profiles and currency have only increased in popularity over the past decade and will likely do so for the foreseeable future.  Cash is being replaced by PayPal, Venmo, and BitCoins; the phone book has been replaced by Yelp, Facebook, and TripAdvisor; and bank and financial institutions send bills and statements through e-mail as opposed to regular mail.  While all of these technological innovations have their benefits, there is still the lingering question of what happens to your digital estate after you have passed away.  A recent Massachusetts case has analyzed a personal representative's authority to obtain access to the contents of a decedent's email and digital assets without express instructions from the decedent.

On August 10, 2006, John Ajemian passed away unexpectedly leaving no will.
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In order to qualify for Mass Health, individuals must have no more than $2,000 in assets.  Oftentimes this leads to people panicking and trying to spend or hide all of their money and assets.  Irrevocable trusts are a great tool to protect assets for Mass Health eligibility, however Mass Health has a very strict five year look back period, meaning any transfer of assets must have occurred more than five years prior to eligibility.  Unfortunately, many people do not plan far enough in advance (or there is an unexpected injury or illness at a young age) and the five year period is devastating on the healthy spouse's financial future.  There is a strategy that can avoid heartache in the future.
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While it is true that Irrevocable Trusts provide more complete and far reaching protection for your assets, there are benefits to utilizing Revocable Trusts as well.  Many clients are spooked by the idea of an irrevocable trust, which takes away both your ownership and control over your assets in exchange for protection if you have to go into a nursing home.  Revocable trusts do not offer protection from nursing homes, but there are still benefits to utilizing them.

First and foremost, if your assets are held in a revocable trust, this avoids the probate process which will save your loved ones significant money when you pass away.  A properly drafted revocable trust promotes greater efficiency and a smooth transition of assets in the manner in which you would like your assets to transfer.
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For individuals interested in estate planning, there seems to be a lot of interest in Trusts, but also a lot of misinformation.  There are certain situations where Trusts are the best estate planning tool to meet an individual's goals, and other situations where Trusts would unnecessarily complicate an otherwise straightforward situation.  There is also a lot of situations that exist in between those two points.  Some background information on Trusts may be helpful.    

Generally speaking, there are two types of Trusts: a testamentary trust and an inter vivos trust.
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Every year, millions of people make their "New Year's Resolutions."  These resolutions can include accomplishing a personal goal or making a change to improve a person's everyday life.  In 2019, one such New Year's Resolution could be to work on your own estate planning goals and objectives.  To kick off 2019 correctly, I am offering three complimentary and useful estate planning tips.

1.
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A child going to college is widely considered the first major step for moving from childhood into adulthood.  However, many parents do not associate this milestone with a need to consider estate planning for the child.  The reality is once a child turns 18 years old, the parents no longer have any legal parental rights over the child.  To put it bluntly: once a child turns 18, his or her parents no longer have any legal say over medical or financial decisions involving the child.

Therefore, every child over the age of 18 should execute a Health Care Proxy and a Durable Power of Attorney.
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One question that comes up a lot when talking with clients about estate planning is "what is a Living Will and do I need one?"  The answer depends on what state you live in.

First, it is important to understand exactly what a Living Will is.  A Living Will has nothing to do with your Last Will and Testament.  A Living Will is a legal document that allows a person to list medical treatments that they would or would not want if they become terimnally ill are become unable to make their own health care decisions.  It is a type of Advance Directive, that is recognized in most states.
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