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Wills 101: 5 Questions to Get You Started with Your Plan

2017 April 13 by

1. What exactly is a will?
A will is a legally enforceable document that controls how your property will be distributed and your bills paid when you die.  If you have children, you will will also nominate someone to be their guardian until they become adults.
2.  Why do I need a will?
A will helps you make decisions about how you would like your real estate and personal property (collectively known as your “estate”) distributed after your death. Without a will, your property will be distributed by the courts through a process called intestate succession.  Depending on the size of your estate, this process can be complicated, expensive, and time-consuming.
3.  What is required for a will to be valid?
State laws govern the formalities that must be followed in order for a will to be considered valid and enforceable and many states have different requirements.  Under Massachusetts law, a person writing a will (known as the “testator”) must be at least 18 years old, and competent to make decisions about his or her property.  The will must be witnessed by two people who sign in the presence of the testator, and the will must be in writing.
4.  Is a will the same thing as a “living will?”
No, it is not.  A living will is a written statement of whether you would want extraordinary medical treatment if you were injured and not able to communicate with your doctors.   A living will can be a useful part of your Advanced Health Care Directive (although a living will is not legally binding in the Commonwealth), but it should not be confused with a will, which only becomes effective if you die and therefore does not have anything to do with health care decisions.
5.  Do I need an attorney to write a will?
A will is just one component of a well-drafted estate plan, which may include advanced health care planning, powers of attorney, and trusts.   Even for  modest estates, there are usually complicating factors that might make it a good idea to check with an attorney.  Many estate planning attorneys charge a flat fee, so you know exactly what you are going to pay going in.

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Six Steps to an Estate Plan for Busy Parents of Young Children

2017 April 6 by

 

By the time my son was born, I was already an attorney with several years of practice behind me.  I had a mortgage, a 401K, and student loan debt.  I was a responsible professional with my own office (and a DOOR), clients who respected my opinions, and even an assistant who (sometimes) would screen my phone calls.  I was, by all markers, a competent adult.  And yet, as I held my son’s six pound body in my arms for the first time, I remember thinking that I was totally unprepared to keep this tiny human alive and safe.

It’s a feeling I think that all parents have had.  The “what now?” and the “what if?” can become overwhelming.  The good news is that creating an estate plan can give you peace of mind that if the worst were to happen, you would still be able to provide for and protect your tiny human.

So, how do you get started?

  1. Understand your options.

To quote the great bard Neil Peart of Rush (yes, I’m an Old), “If you chose not to decide you still have made a choice.”  For estate planning purposes, this means that if you pass away without an estate plan, the Commonwealth of Massachusetts will gladly provide you with its plan.   And in many respects, it’s perfectly adequate for many people.  As long as you don’t think your descendants will mind a lengthy, expensive, and public probate process, and don’t mind a judge appointing a guardian for your children three to six months after your death…yeah…maybe that’s not the best idea.

In all seriousness, creating your own estate plan gives you control over your estate and can keep proceedings private and efficient to protect your assets and your children. In essence, an estate plan is nothing more than a set of instructions that will govern who will be responsible for your children and how your material possessions are to be distributed.

There are multiple parts to even the most simple estate plan.  Some parts (live a living trust or power of attorney) may become effective immediately, while others only become effective if you become incapacitated (such as an advanced directive or “living will”), or after your death.  While a good attorney will take time to discuss your options with you, it never hurts to do some research on what you think you might want for yourself.

  1. Talk about your wishes with your spouse or partner.

It’s important that your spouse or partner understand what your goals are in writing your plan.  Do they understand how you would want your assets distributed and debts paid? Are you on the same page about who would be responsible for your children if you were both to die?  Just talking about these issues is difficult for some people, so be patient with your partner.  Attorney Laura K. Meier has written a good conversation-starting guide on this subject, Good Parents Worry, Great Parents Plan: Wills, Trusts, and Estate Planning for Parents of Young Children.

Single parents may have different concerns regarding their children, including what rights they may have to make guardianship decisions in light of their co-parent’s parental rights.  Single parents may also have special needs regarding trust creation to safeguard their children’s financial security.  Finding a loved one (be it family or a close friend) you can talk to about these issues is an important first step to crafting your plan.

  1. Find an attorney you feel comfortable with.

A quick Google search will reveal many companies out there that will provide estate planning documents for you at a low, low price… simply plug in a few detail and voila!  Estate Plan!

But creating an estate plan is a deliberative process that may require considering changes to beneficiary designations on your 401K, or insurance documents.  If you want to create a trust, either to minimize tax liabilities, or provide for a child with or without special needs, you should consider consulting with an attorney who understands estate planning law and possible conflicts that could render your trust ineffective.

Many attorneys charge a flat fee for estate planning, which can vary depending on the complexity of the plan.  As a prospective attorney if he or she offers a risk-free consultation where you can ask about the specifics of your situation.   Make sure you find someone who understands your goals, and who you think you can work well with.

  1. Just do it!

Often, my clients will go through the entire process of creating a living trust to fund their children’s education, contact financial planners to transfer ownership of investment accounts, identify their health care agent and craft a thoughtful statement of wishes regarding health care treatment, only to balk when it comes time to identify potential guardians for their children.

Nominating a guardian can be a paralyzing choice – but it doesn’t have to be!  Even though there is no one as well suited to take care of your kids as you, by choosing someone you know who is responsible and who loves them, you have created the best possible scenario for your children.  Creating a plan removes uncertainty because you now know that, in the unlikely event of your death, you children will be provided for emotionally, physically, and financially, immediately and for years to come.

  1. Tell Someone About Your Plan

The best estate plan is totally useless if no one knows where it is.  Many attorneys will safeguard your estate plan for you at their offices.  This can be beneficial, especially if you are concerned about elements of your plan that have an immediate effect, such as a power of attorney.  Additionally, attorneys are bound by fiduciary responsibilities regarding the safekeeping of your documents.

Even if your attorney will safeguard the estate plan, make sure that someone other than you (and your spouse) knows the name and contact information of the attorney who wrote your plan.  If you choose to maintain the documents yourself, make sure that they are kept in a secure location (such as a fireproof safe) and that someone other than a beneficiary knows how to access the documents.

  1. Review and revise regularly

Your life is constantly changing and evolving, so your estate plan should too.  Don’t assume that this is a “one and done” process.  Review your estate plan on a regular schedule – maybe ever two years – and any time you experience a life changing event, such as the birth of a new child, a move, a career change, or a change to your marital status.

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Safeguard Your Health Care Autonomy with a Health Care Proxy

2017 April 6 by

What if you were in an accident and were unable to communicate with your doctor? How would health care decisions be made for you? Would you want treatment with a respirator or a feeding tube? At what point would you want care to be withdrawn? What happens if you are pregnant when you lose capacity?

These are all scenarios that most of us don’t want to think about, especially when we are young and healthy. But statistics tell us that more than half of all women who die before age 35 are victims of sudden injuries. So while it may seem remote, it makes sense to spend some time thinking about how we can help our loved ones make medical decisions based on our personal values if we become unable to speak for ourselves.

The best method to make your intentions clear is with a well-crafted advanced directive. An advanced directive is a legally enforceable document that allows you to control how medical decisions will be made on your behalf if a doctor determines, through specific medical criteria, that you can’t communicate your wishes. Advanced directives, which are available in all 50 states, take two forms: a living will, or a health care proxy.

A living will allows individuals to delineate the types of treatments they would or would not want in specific situations. For example, a patient may specify that she would not want a feeding tube to be placed if doing so would only prolong the dying process. Without a living will, a doctor may be required to provide treatment you would not want.

Massachusetts residents should know that that living wills are not enforceable in the Commonwealth, which means that doctors and courts do not have to follow them.  Instead, Massachusetts law allows for the appointment of a person to act on your behalf as your agent in medical decision making. The document that provides for this appointment is called the health care proxy.

Provided you have communicated your wishes to your agent, a health care proxy can give you peace of mind that your wishes will be carried out, because a properly drafted health care proxy gives the person you choose near-absolute authority to make decisions for you. In addition to the health care proxy, you can also create a written “personal wishes statement” to help guide decision making. Although the personal wishes statement is not legally binding, it may be important if you believe that there could be differences of opinion among family members who might challenge the decisions of your health care agent.

In general, advanced directives only become effective upon a physician’s determination of incapacity. If you later become able to communicate your wishes yourself, your communicated intent will override any contrary instructions given in your living will or by your health care agent.

Specific medical and legal situations can affect the enforceability of advanced directives and laws in this area are evolving as our medical knowledge advances. For these reasons, it is a good idea to get experienced legal counsel when creating your advanced directive.

 

 

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