Wills

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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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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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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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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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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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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