Massachusetts Health Care Proxies Explained

Massachusetts Health Care Proxies Explained: Who Will Make Decisions If You Can’t?

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As estate planning attorneys serving Gloucester, Rockport, Manchester by the Sea, Beverly, and the entire North Shore of Massachusetts, we regularly advise clients on one of the most overlooked but vital documents in any estate plan—the health care proxy. A health care proxy is not just for the elderly or the seriously ill. Every adult in Massachusetts should have this document in place, because none of us can predict when a medical emergency might render us unable to communicate.

We’ve helped families across Essex County deal with the consequences of not having a health care proxy in place. When a person is suddenly incapacitated and there’s no legal authority given to a trusted agent, families are often left with uncertainty, conflict, and delays in medical care. Massachusetts law allows adults to choose who will make health care decisions if they lose capacity, but the decision must be made ahead of time and documented correctly.

Without a valid health care proxy, doctors may be left making critical choices without clear guidance from the person’s loved ones. Worse, families may be forced to go to court to establish a guardianship. That process is time-consuming, costly, and emotionally draining. That’s why we strongly encourage every client to make this part of their planning.

What Is A Health Care Proxy In Massachusetts?

Under Massachusetts General Laws Chapter 201D, every competent adult has the legal right to appoint another person to make health care decisions on their behalf if they become incapacitated. This legal document is called a Health Care Proxy. It names an “agent”—typically a spouse, adult child, friend, or trusted individual—who can speak with doctors, access medical records, and make decisions regarding treatment, medication, surgery, and end-of-life care when you are unable to do so.

The law is very specific: the agent’s authority takes effect only when your doctor determines in writing that you lack capacity to make or communicate health care decisions. Until then, you retain full control. That’s one of the biggest misconceptions we see—people worry that signing a health care proxy means giving up control. In reality, it simply ensures someone you trust can step in if needed.

Massachusetts law requires that the proxy be signed in the presence of two adult witnesses, neither of whom can be the named agent. These witnesses must affirm that you appeared to be of sound mind and free from coercion.

Why A Health Care Proxy Is Essential For Every Adult

Whether you’re a 22-year-old college student or an 80-year-old retiree, medical emergencies don’t discriminate by age. If you’re unconscious or unable to speak, and no proxy is in place, your medical team may be legally constrained in communicating with your loved ones. In some cases, family members may disagree about what care is appropriate. Having a health care proxy avoids these conflicts by giving one person clear legal authority to act.

It’s particularly important for unmarried couples and blended families. Under Massachusetts law, a partner who is not a legal spouse does not have default authority to make decisions unless designated in a proxy. If you want your partner—not a parent or sibling—to make decisions, the proxy is the only way to guarantee that outcome.

A health care proxy also allows you to express specific wishes about life-sustaining treatment, pain management, and spiritual considerations through a supplemental document often referred to as a “living will” or “advance directive.” While Massachusetts doesn’t have a statutory form for living wills, we can incorporate guidance directly into the proxy or draft a companion document to provide additional clarity to your agent.

Legal Ramifications Of Not Having A Proxy

If no proxy exists and you become incapacitated, your family may be forced to petition the Probate and Family Court for a guardianship under M.G.L. c. 190B, Article V. This is a public court process that can involve legal fees, delays, and potential disputes between family members. The court may appoint someone who doesn’t know your medical preferences or who doesn’t reflect your personal values. Worse, during the time the guardianship is pending, no one may have legal authority to make immediate decisions about your care.

Creating a valid proxy gives you peace of mind that your wishes will be respected and your loved ones won’t be left in the dark during a medical crisis.

Massachusetts Health Care Proxy Frequently Asked Questions

What Is The Difference Between A Health Care Proxy And A Durable Power Of Attorney?
A health care proxy authorizes someone to make medical decisions when you can’t. A durable power of attorney typically authorizes someone to handle financial and legal matters. They serve different but equally important roles in your estate plan.

Does My Health Care Proxy Need To Be Notarized In Massachusetts?
No. Massachusetts law does not require notarization. The proxy must be signed in the presence of two disinterested witnesses who attest that you appeared to be competent and free from coercion.

Can I Name More Than One Person In My Proxy?
You can name one primary agent and one alternate agent in case your primary is unavailable. However, Massachusetts law does not allow two co-agents to act simultaneously. It’s important to choose someone you trust and discuss your wishes with them ahead of time.

When Does The Health Care Proxy Go Into Effect?
Your agent’s authority begins only after your attending physician has determined, in writing, that you are incapable of making or communicating your own health care decisions. Until then, you make your own choices.

Can I Revoke Or Change My Proxy Later?
Yes. You can revoke or update your health care proxy at any time while you have the capacity. It’s a good idea to review your proxy every few years and update it after major life changes such as marriage, divorce, or death of your agent.

Do Hospitals And Doctors In Massachusetts Recognize Out-Of-State Proxies?
Generally, Massachusetts providers will honor out-of-state health care proxies if they appear valid. However, it’s best to have one prepared under Massachusetts law to avoid confusion or rejection during a crisis.

Should I Give Copies Of My Proxy To My Family And Doctor?
Yes. Your health care proxy should be shared with your primary care doctor, hospital, and the named agent. We also recommend keeping a copy in an accessible location and storing a digital version.

Is A Living Will Legally Binding In Massachusetts?
Massachusetts does not have a statute that gives legal effect to living wills. However, a living will can be a helpful guide for your agent when making difficult decisions and can be included as a supplemental directive.

What Happens If I Don’t Have A Health Care Proxy?
Without a proxy, no one has automatic legal authority to make decisions for you. This can delay treatment or force your loved ones into court to seek a guardianship. The court process can be stressful, expensive, and may not reflect your wishes.

Can My Spouse Automatically Make Decisions Without A Proxy?
Not necessarily. While medical professionals may consult with a spouse, they are not legally required to follow their decisions without proper documentation. Having a signed proxy avoids this uncertainty.

Call The Sullivan Firm P.C. For a Free Consultation

At The Sullivan Firm P.C., we work with individuals and families across Gloucester, Rockport, Manchester by the Sea, Beverly, and throughout Essex County to create legally sound, protective estate plans that include health care proxies. We believe everyone—regardless of age—should have a trusted agent designated to make medical decisions if the unthinkable happens.

Call The Sullivan Firm P.C. at 978-325-2721 for a free consultation. Our office in Gloucester, Massachusetts is ready to help you prepare this essential document so your wishes are honored and your loved ones are protected.

irrevocable trust attorney in Massachusetts

How an Irrevocable Trust Can Protect Your Assets in Massachusetts

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As estate planning attorneys serving clients in Gloucester, Rockport, Manchester by the Sea, Beverly, and throughout the North Shore, we work with many families who want to preserve their hard-earned assets for future generations. For Massachusetts residents concerned about long-term care expenses, estate taxes, or shielding assets from creditors, an irrevocable trust is one of the most effective legal tools available.

Creating an irrevocable trust is a major decision. Unlike a revocable trust, once an irrevocable trust is funded and executed, you generally cannot change it or take assets back. But with that permanence comes real protection. If properly structured and managed, an irrevocable trust can remove assets from your taxable estate, protect your home and savings from being lost to nursing home care, and prevent lawsuits or creditors from reaching certain property.

Under Massachusetts law, irrevocable trusts must meet specific legal requirements to provide the intended protections. When set up correctly, this type of trust can give you peace of mind knowing that your family’s financial future is secure.

Long-Term Care Planning And The Five-Year Look-Back

One of the most common reasons we help clients create irrevocable trusts is to plan for future long-term care. Massachusetts residents who may need MassHealth (Medicaid) benefits to pay for nursing home care must meet strict financial eligibility limits. If you own too many assets, including your home, you may be required to spend down your estate before qualifying.

By placing your home or other assets into an irrevocable trust, those assets can be protected—so long as the transfer is done early enough. MassHealth applies a five-year look-back period to any transfers made into a trust. That means assets placed in the trust at least five years before applying for long-term care coverage will generally not be counted against you. This rule is outlined under the Code of Massachusetts Regulations, 130 CMR 520.019, which governs trust treatment for MassHealth eligibility.

It’s important to understand that if you retain too much control over the trust or use assets in ways that violate MassHealth rules, the protection can be lost. That’s why careful drafting is critical.

Protecting Your Family Home From Estate Recovery

Even if you qualify for MassHealth and receive long-term care benefits, the Commonwealth of Massachusetts has the right to pursue “estate recovery” after your death. This means MassHealth may file a claim against your estate to recover what it spent on your care. That claim often targets your home, leaving your family at risk of losing it.

If your home is placed into an irrevocable trust—assuming it’s properly structured and the five-year look-back period has passed—it can be excluded from your probate estate. That makes it inaccessible to MassHealth estate recovery. Under M.G.L. c. 118E, § 31, the state is limited to recovering assets that are part of the probate estate, not assets inside a properly created irrevocable trust.

Asset Protection Against Creditors And Lawsuits

An irrevocable trust can also help protect assets from creditors or lawsuits. Once assets are transferred into the trust, they are no longer legally owned by you. If you are sued or face personal liabilities, trust property is generally off-limits—so long as the trust was not created to defraud creditors.

This type of protection is especially useful for individuals in professions or businesses with liability exposure, or for anyone seeking to ensure their children or spouse receive protected inheritances.

Tax Benefits And Estate Reduction

Massachusetts currently imposes an estate tax on estates over $2 million (as of 2024). An irrevocable trust can be used to remove life insurance policies, appreciating investments, or real estate from your taxable estate. By moving these assets into an irrevocable trust, they can grow outside of your estate and reduce the overall tax burden on your heirs.

Certain irrevocable trusts, such as Irrevocable Life Insurance Trusts (ILITs), are designed specifically for this purpose. Massachusetts follows federal tax principles when evaluating whether trust assets should be included in your estate, so proper legal guidance is key to avoiding unintended consequences.

Why This Type Of Trust Requires Careful Planning

While irrevocable trusts offer powerful protections, they are not one-size-fits-all. You give up ownership and access to the assets you place in the trust. If you need those funds later, you may be unable to use them. That’s why we always begin with a clear understanding of your financial picture, your health, your goals, and your family’s needs.

We create each trust carefully under M.G.L. c. 203E (Massachusetts Uniform Trust Code) and ensure all terms comply with state and federal law. Every trust we draft is tailored to fit our client’s specific estate plan.

Irrevocable Trust Frequently Asked Questions

What Is An Irrevocable Trust And How Is It Different From A Revocable Trust?
An irrevocable trust cannot be changed or revoked once it is signed and funded. Unlike a revocable trust, where you maintain control, an irrevocable trust removes assets from your ownership, offering stronger protection from creditors, taxes, and MassHealth.

Can I Still Live In My Home If It’s In An Irrevocable Trust?
Yes, if the trust is drafted to allow it, you can retain the right to live in your home for the rest of your life. However, you cannot retain full ownership or control. This arrangement must be clearly stated in the trust document.

When Should I Create An Irrevocable Trust In Massachusetts?
If you’re concerned about long-term care costs, estate taxes, or asset protection, you should consider setting up the trust at least five years before you may need MassHealth benefits to avoid penalties related to the look-back period.

Are Assets In An Irrevocable Trust Still Subject To Probate?
No. Assets in an irrevocable trust are not part of your probate estate. They pass directly to your beneficiaries under the terms of the trust, which helps avoid the probate process and protects privacy.

Can I Name My Children As Beneficiaries Of My Irrevocable Trust?
Yes, you can name your children, grandchildren, spouse, or other individuals as beneficiaries. The trust terms control how and when distributions are made to them, which can be structured for asset protection and tax efficiency.

Will I Still Pay Taxes On Income Earned By The Trust?
That depends on the type of irrevocable trust. Some trusts are structured as grantor trusts, where the income is taxed to you, while others are taxed as separate entities. We help clients choose the most beneficial tax structure.

Can I Serve As Trustee Of My Own Irrevocable Trust?
In most cases, no. To maintain the protections, you typically must appoint someone else—such as a child, sibling, or trusted advisor—as trustee. You can retain some influence, but not control over distributions or trust assets.

What Happens If I Need Money From The Trust Later?
You generally cannot access funds once they are placed in an irrevocable trust. That’s why it’s important to carefully evaluate your future needs and only place surplus assets into the trust.

Can An Irrevocable Trust Protect Against Nursing Home Costs?
Yes, when structured properly and funded at least five years before applying for MassHealth, the assets in the trust are not counted toward eligibility. This is one of the main benefits of this planning tool in Massachusetts.

Do I Still Need A Will If I Have An Irrevocable Trust?
Yes. A will can direct any remaining assets that were not placed in the trust into the trust at your death (via a pour-over will) and can also appoint guardians for minor children. Both documents should work together.

Call The Sullivan Firm P.C. For a Free Consultation

At The Sullivan Firm P.C., we help families throughout Gloucester, Rockport, Manchester by the Sea, Beverly, and across the North Shore understand when an irrevocable trust makes sense—and how to use it properly. If you’re looking to protect your home, savings, and loved ones from long-term care costs or estate taxes, let us show you how strategic planning can preserve what you’ve worked so hard to build.

Call The Sullivan Firm P.C. Today At 978-325-2721 For A Free Consultation. Our office is located in Gloucester, Massachusetts, and we serve clients across Essex County. Let’s work together to protect your legacy with confidence and care.

Is A Revocable Living Trust Valid In Massachusetts?

Is A Revocable Living Trust Valid In Massachusetts?

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For many families in Gloucester, Rockport, Manchester by the Sea, Beverly, and throughout the North Shore, one of the most common estate planning questions we receive is whether a revocable living trust is legally valid in Massachusetts. The answer is yes. A revocable living trust is fully recognized under Massachusetts law and is an effective tool for managing your assets both during your lifetime and after your death.

Revocable living trusts are flexible, private, and help avoid the delays and costs associated with probate court. They allow us to transfer property to our chosen beneficiaries without court involvement, which is especially helpful for real estate, financial accounts, and other assets that may otherwise be subject to lengthy proceedings. But creating a valid trust requires more than just filling out a template—it must be drafted, signed, and funded properly to have legal effect.

Massachusetts law recognizes and enforces revocable trusts, but the trust must meet specific legal requirements and must be properly administered over time. A poorly written or unfunded trust can lead to court battles, unintended tax consequences, and family disputes. That’s why we always recommend working with an attorney familiar with the Massachusetts Uniform Trust Code and the practical issues that arise under state law.

What Makes A Revocable Living Trust Valid In Massachusetts?

Under Massachusetts General Laws Chapter 203E, also known as the Massachusetts Uniform Trust Code (MUTC), a revocable living trust is a written agreement where the person creating the trust (called the “grantor” or “settlor”) transfers legal ownership of assets to a trustee for the benefit of beneficiaries. The trust remains revocable during the grantor’s lifetime, meaning the grantor can change or revoke it at any time, so long as they are mentally competent.

According to M.G.L. c. 203E, § 402, a trust is created when the following elements are present:

  • The settlor has the intent to create a trust;
  • There is a definite beneficiary;
  • The trustee has duties to perform;
  • The trust serves a lawful purpose.

As long as these conditions are met and the trust is signed by the grantor (and notarized for practical purposes), the trust is valid. If you are both the grantor and the trustee—as many people are when creating a living trust—the law still recognizes it as a valid trust.

Properly Funding The Trust Is Essential

One of the biggest mistakes we see is when people establish a valid trust but fail to fund it. Funding means transferring legal ownership of assets—like your house, bank accounts, or brokerage accounts—into the name of the trust. If the trust is never funded, then those assets will still be subject to probate and the trust may have little or no effect.

For example, even if your revocable trust is legally sound, if your home is still titled in your name instead of the trust, it won’t avoid probate unless you’ve taken steps to retitle it. This often requires recording a new deed with the Essex County Registry of Deeds. Failing to properly fund your trust can undermine the entire estate plan.

A Trust Works Alongside Other Planning Documents

While a trust is powerful, it is not a complete estate plan on its own. You will still need a pour-over will, health care proxy, and durable power of attorney to ensure you’re protected in life and death. A pour-over will directs any remaining assets not titled in the trust to be “poured” into the trust upon your passing. This provides a safety net for any assets you may have missed during your lifetime.

Massachusetts residents who only create a trust and skip these other critical documents risk leaving gaps in their plan. That’s why our estate planning process always includes a full set of documents that work together.

Trusts Offer Key Benefits For Massachusetts Families

The benefits of a valid revocable trust go beyond just probate avoidance. For many of our clients, the privacy and control they provide are just as important. Unlike a will, which becomes a public court record during probate, a trust remains private. Trusts also help manage your affairs if you become incapacitated, allowing your successor trustee to take over without needing court approval.

A revocable trust gives you the ability to plan for blended families, minor children, disabled beneficiaries, and specific distribution instructions that a simple will cannot handle effectively. It also allows for continuity in the event of incapacity, which is especially important as we age.

Massachusetts Revocable Living Trust Frequently Asked Questions

Is A Revocable Living Trust Recognized Under Massachusetts Law?
Yes. Revocable living trusts are fully valid and enforceable under the Massachusetts Uniform Trust Code (M.G.L. c. 203E). The law allows residents to create, manage, amend, or revoke these trusts during their lifetime.

Do I Still Need A Will If I Have A Revocable Trust?
Yes. A pour-over will is essential even if you have a trust. It ensures that any assets not titled in the name of the trust are still distributed according to your wishes and placed into the trust at death.

Can I Be Both The Grantor And The Trustee Of My Trust?
Yes. In Massachusetts, it’s common for the person who creates the trust to also serve as the initial trustee. You should name a successor trustee to take over when you pass away or become incapacitated.

Does My Trust Avoid All Probate In Massachusetts?
Only assets that are properly titled in the trust can avoid probate. If you fail to retitle accounts or property, those assets may still go through the probate process.

Can I Revoke Or Change My Trust Later?
Yes. As long as you are mentally competent, you can revoke, amend, or restate your trust at any time during your life.

What Happens If My Trust Conflicts With My Will?
If your will and trust contradict each other, it may result in legal disputes. A well-drafted estate plan should be internally consistent and avoid these types of conflicts.

Can My Trust Help Me Plan For Incapacity?
Yes. A revocable trust allows your successor trustee to manage your affairs if you become incapacitated, without requiring a court-appointed guardian or conservator.

Do I Need To File My Trust With The Court?
No. A revocable living trust is a private document and does not need to be filed with the Massachusetts Probate and Family Court unless a dispute arises.

What Kind Of Property Should Be Put Into My Trust?
Real estate, bank accounts, investment accounts, and other valuable assets should typically be retitled into the name of your trust. Retirement accounts usually remain in your name with beneficiary designations.

Can A Trust Help Me Protect My Children’s Inheritance?
Yes. A trust can include provisions to delay or control when and how your children receive their inheritance, helping to protect it from poor financial decisions, divorce, or creditors.

Call The Sullivan Firm P.C. For a Free Consultation

At The Sullivan Firm P.C., we help individuals and families throughout Gloucester, Rockport, Manchester by the Sea, Beverly, and the entire North Shore of Massachusetts build estate plans that actually work. A revocable living trust is a powerful tool, but it must be properly drafted, funded, and coordinated with your full plan to be effective.

Our law offices are located in Gloucester, Massachusetts, and we proudly serve clients across Essex County. Let us help you protect your family, preserve your assets, and gain peace of mind.

What You Should Know about Revocable Living Trusts Under Massachusetts Law.

Understanding Revocable Living Trusts Under Massachusetts Law: What You Should Know

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As an estate planning attorney serving Gloucester, Rockport, Manchester by the Sea, Beverly, and the greater North Shore, we have guided countless families through the process of protecting their assets and planning for the future. One of the most valuable tools available to Massachusetts residents is the revocable living trust. While often misunderstood, this estate planning document can offer flexibility, privacy, and probate avoidance—when created and used properly.

Many clients come to us after hearing about trusts from friends or financial advisors, but they’re unsure if a revocable living trust is the right fit. We believe it’s important to provide practical, legally accurate information. Massachusetts law permits individuals to create revocable living trusts to manage assets during their lifetime and distribute them at death without going through probate. However, the trust must be properly drafted, funded, and maintained. Without these critical steps, the trust may fail to achieve its intended goals.

What Is A Revocable Living Trust And How It Works In Massachusetts

A revocable living trust is a written agreement that allows us to transfer ownership of assets into the name of a trust that we control during our lifetime. Under Massachusetts law, these trusts are governed primarily by the Massachusetts Uniform Trust Code (MUTC), found in Massachusetts General Laws Chapter 203E. Section 603 specifically allows the person who creates the trust—known as the settlor or grantor—to also serve as the trustee and beneficiary during life, retaining full control over the assets.

Because the trust is revocable, we can change, amend, or revoke it entirely at any time while we are mentally competent. This flexibility makes it an appealing option for those who want to retain control but also avoid probate and reduce administrative headaches for their families.

Upon our death, a named successor trustee takes over, following the terms of the trust to distribute assets to our chosen beneficiaries. Unlike a will, which must pass through the probate process under M.G.L. c. 190B, a properly funded revocable trust allows our assets to transfer directly, privately, and efficiently—without court oversight.

Key Benefits Of A Revocable Living Trust In Massachusetts

One of the main advantages of a revocable trust is avoiding probate. In Massachusetts, probate can be a lengthy and public process. Assets held in a trust pass immediately to beneficiaries according to the terms of the trust, without delays or additional court costs.

Another important benefit is privacy. Probate records are public, meaning anyone can access details about your estate. Trusts are private documents and are not filed with the probate court unless contested.

Revocable living trusts also provide continuity of asset management if we become incapacitated. Without a trust, managing our financial affairs would likely require a court-appointed guardian or conservator. With a trust in place, the successor trustee can step in immediately to manage assets without court intervention.

Additionally, trusts can be structured to delay distributions to beneficiaries, protect young or financially inexperienced heirs, and reduce the risk of inheritance mismanagement.

Funding The Trust: A Common Mistake In Massachusetts Estate Plans

One of the most common issues we see in Essex County is that clients set up a revocable trust but fail to fund it. Funding means transferring ownership of assets—real estate, bank accounts, investment accounts, and personal property—into the name of the trust.

If this step is missed, the assets remain in the individual’s name and will still be subject to probate. That’s why we always stress the importance of properly titling assets and updating beneficiary designations where appropriate. A trust is only as effective as the assets it holds.

Massachusetts Law Supports Flexibility—But Precision Is Essential

The MUTC gives residents wide latitude to create and amend revocable trusts, but the language of the trust must be precise. Any ambiguities can lead to court involvement, particularly if heirs or beneficiaries raise questions.

As attorneys, we also coordinate your trust with other essential documents, including your pour-over will, durable power of attorney, and health care proxy. These documents work together to provide complete legal coverage. Without this coordination, your trust could be undermined or assets could be left unaccounted for.

Massachusetts Estate Planning Frequently Asked Questions

Is A Revocable Living Trust Valid In Massachusetts?
Yes. Massachusetts law under Chapter 203E recognizes revocable trusts as legally valid estate planning tools. The trust must be created by a competent adult and signed with appropriate formalities.

Can I Be The Trustee Of My Own Trust?
Yes. Most people who set up a revocable trust in Massachusetts serve as both the trustee and the beneficiary during their lifetime. You must also name a successor trustee to manage the trust after incapacity or death.

Does A Revocable Trust Avoid Probate In Massachusetts?
Yes, but only for assets that are properly titled in the name of the trust. If you fail to transfer an asset into the trust, that asset may still go through probate.

Can I Change My Revocable Trust After It’s Signed?
Absolutely. You can amend or revoke your trust at any time while you are mentally competent. This flexibility is one of the main benefits of using a revocable living trust.

Do I Still Need A Will If I Have A Trust?
Yes. You should have a pour-over will that directs any remaining assets into the trust at death. The will also allows you to name guardians for minor children and serves as a backup for any assets not titled in the trust.

Does A Revocable Trust Protect My Assets From Nursing Home Costs?
No. Because you retain control over the assets in a revocable trust, they are still considered available resources for purposes of MassHealth (Medicaid) eligibility. Only an irrevocable trust can provide that kind of protection.

Is A Revocable Trust More Expensive Than A Will?
The upfront cost is usually higher, but the long-term savings in probate fees, court costs, and time often make it a better value for families with property or multiple assets.

Who Should Have A Revocable Trust In Massachusetts?
Anyone who wants to avoid probate, maintain privacy, plan for incapacity, or manage family inheritances may benefit from a trust. It is particularly helpful for those with real estate, blended families, or out-of-state property.

Can A Revocable Trust Own Real Estate In Another State?
Yes. A revocable trust can hold property in any state, helping to avoid ancillary probate in places outside Massachusetts.

What Happens If I Forget To Fund My Trust?
Assets not transferred into your trust will remain subject to probate. Your pour-over will can direct those assets into the trust, but this still requires court involvement, defeating one of the trust’s primary advantages.

Call The Sullivan Firm P.C. For a Free Consultation

At The Sullivan Firm P.C., our estate planning lawyer in Gloucester helps families across Gloucester, Rockport, Manchester by the Sea, Beverly, and all of Essex County understand and create effective revocable living trusts under Massachusetts law. Whether you want to avoid probate, protect your privacy, or plan for your loved ones’ futures, we’re here to make sure every piece of your estate plan works together.

Call The Sullivan Firm P.C. Today At 978-325-2721 For A Free Consultation. Our offices are located in Gloucester, Massachusetts, and we proudly serve clients throughout the North Shore and Essex County. Let’s make sure your trust does what it’s supposed to do—protect what matters most.

The Importance of An Estate Plan If You Have Young Children

The Importance of An Estate Plan If You Have Young Children

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Estate planning allows parents to plan for who will care for their children and how they are cared for, ensures their property will pass to whom they want, the way they want and when they want and determines who will handle the property they leave to their children.

Minors need parents, and if you pass away prior to your child turning 18, who will care for them?  If you don’t decide and document it in a plan, the court will decide for you.

If you have children, especially young children, here are a few things to think about:

  • Do you have clear instructions for the way you would like your guardian to raise your kids?
  • Do you have an emergency guardian in place in case of an accident?
  • Have you thought about leaving your property to your minor children?  Who will oversee their inheritance?
  • Your children, first and foremost, need food, clothing and shelter when you are gone.  Do they have access to their inheritance right away?
  • How will your children pay for college?
  • Will your children’s inheritance be protected from creditors, divorce and lawsuits?

These are only a few of the important issues that parents with young children face.

Do I Need a Will or Trust, or Both? Answered by a Massachusetts Estate Planning Attorney

Do I Need a Will or Trust, or Both? Answered by a Massachusetts Estate Planning Attorney

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Do I Need a Will or Trust, or Both? Answered by a Massachusetts Estate Planning Attorney

Many people are familiar with the terms “will” and “trust,” however, they don’t exactly know the difference, nor do they know which is more appropriate to address their needs. Being proactive with your financial planning and asset protection is the first step to taking care of your assets and your family when you pass. The next important step is determining which type of protection and planning will fulfill your wishes and make the most sense for your individual set of circumstances. 

Do you need a will or trust, or both?

Specifically, while a will and a trust serve different purposes and can each be drafted individually for a client, they may also cohesively work together to make an airtight plan as well. To learn more about what type of estate plan is right for you, it is critical to hire an experienced and qualified estate planning attorney who can discuss all of your legal options to ensure you are adequately protected and secure.

Wills, Explained

When you die, a will protects and addresses any property that is in your name and not held in a trust or joint tenancy (with your spouse). It is important to keep in mind that a will must pass through the court system, specifically through the probate department. This means that the court will oversee the validity of the will and handle all distributions and allocations of the property stated therein. Considering that a will must be processed through the court system and in turn, becomes public record, this may or may not be the right estate plan for you.

Trusts, Explained

On the other hand, a trust only covers property that has been assigned or transferred into the trust; property is not covered automatically. A trust is a legal document and agreement set up by a “grantor,” providing a “trustee” with the duty of holding legal title to property for the benefit of another person, called a “beneficiary.” A trust can be created as revocable, in order to provide flexibility, or irrevocable (cannot be revoked), depending on the grantor’s needs and goals. Unlike a will, a trust does not have to go through the court system’s probate department, which can alleviate time and resources and also keeps the matter more private.

How a Massachusetts Estate Planning Attorney Can Help You

Let us help you achieve your unique estate planning goals, as our qualified Massachusetts Estate Planning & Probate Attorneys will assess your goals and needs to ensure you receive a plan that works for you. Call The Sullivan Firm, P.C. today at (978) 325-2721 to arrange a free-of-charge exploratory meeting. Together, we can preserve, protect and provide for your loved ones.

Troy Sullivan, Massachusetts Estate Planning Attorney

The Sullivan Firm, P.C. is a boutique probate and estate planning law firm serving the North Shore and Cape Ann of Massachusetts including Gloucester, Rockport, Manchester and Beverly. The firm concentrates on estate planning matters, including trusts, wills, healthcare proxies, life planning, probate, special needs trusts, and trust administration. 

Smart Estate Planning For A Family Business

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Is a HIPAA-release required for Massachusetts Health Care Proxies?

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What is a HIPAA Release?

The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) is a federal law that protects the privacy and security of individuals’ medical records in the United States. Generally, HIPAA prohibits health care providers and insurance companies from disclosing a patient’s medical information to third parties without the patient’s prior written authorization in the form of a HIPAA Release. However, what happens if you become incapacitated and cannot provide written authorization to allow your health care agent to see your records?  The experienced and knowledgeable attorneys at The Sullivan Firm, P.C. will draft the necessary documents as part of your estate plan to ensure that your health care agent can review your medical records if the need ever arises so they can make an informed decision about your treatment.

What is a Health Care Proxy?

In Massachusetts, any person over the age of 18 may execute a health care proxy. A health care proxy is a legal document that designates an adult, called an agent, to make medical decisions on behalf of another, known as principal, if the principal becomes incapacitated. An agent can be almost anyone but is the most frequently a spouse, child, parent, relative, or close friend. According to Massachusetts General Law chapter 201D, §5, known as the Massachusetts Health Care Proxy Act (the “Act”), an agent is responsible for making health care decisions for the principal as if the principal was making them personally.  An agent may be asked to make decisions about life-support, such as ventilators, feeding tubes, artificial hydration, or other medical treatments.

Keep in mind that the agent cannot make those decisions without guidance. Specifically, Section 5 of the Act instructs him or her to consult all of the principal’s health care providers and consider acceptable medical alternatives regarding “diagnosis, prognosis, treatments and their side effects.”  After consultation, the agent makes a treatment decision in accordance with the principal’s “religious or moral beliefs,” or if those beliefs are not known to the agent, then the agent must make a decision based upon the agent’s perception of the principal’s best interests.

When would I need both a HIPAA and Health Care Proxy?

An agent may need to consult the patient’s medical records to make the best decision for the principal. While Section 5 of the Act grants the agent the right to review confidential patient information  to make this decision, the HIPAA privacy rule, as stated above, appears to conflict with Massachusetts Health Care Proxy law if there is no authorization on file with the health care provider. Analysis of the HIPAA rules, however, reveals that a principal’s personal representative, as designated by state law, may review confidential patient records. Therefore, in Massachusetts, a health care provider may allow an agent to review a principal’s medical records without prior written authorization.

Is there a better alternative?

There are alternatives to relying upon statutory analysis to resolve this conflict. The better practice for an estate planning attorney to follow when drafting a health care proxy for a client is to include language in the document itself expressly permitting the agent, in accordance with Massachusetts law and HIPAA, to review all confidential medical documentation necessary to make an informed decision.  Additionally, people suffering from a life-threatening illness should consider having their physician write a “Medical Order Regarding Life-Sustaining Treatment” (“MOLST”).  As the name indicates, a MOLST is a medical order written by your physician obligating health care providers to follow if the need arises. A MOLST becomes effective as soon as it is signed, unlike a health care proxy which only becomes effective after incapacitation. A MOLST may not be a viable option for everyone. Therefore, you should consult your physician to see if your medical condition meets the specific legal requirements.

What happens if you die without an estate plan?

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Creating an estate plan is not an easy subject to broach, especially with someone who is young and healthy. Human nature allows us to always think we have time. Unfortunately, life is unpredictable, and as such, people can be caught off guard and die without ever executing even a simple will. If that is the case and you die without an estate plan (intestate), the Commonwealth of Massachusetts will determine how your assets are distributed.

Given the aforementioned, the Massachusetts Uniform Probate Code (MUPC) sets forth the procedure for administering an intestate estate. Before assets can be distributed, a petition must be filed in the probate court of the county in which the deceased resided, along with a request for an administration. This can be formal or informal. The court then appoints an administrator or personal representative to identify and gather the assets and liabilities of the estate and report them to the court, sometimes referred to as an accounting. This process can be very lengthy and costly. The court may also direct the personal representative to sell real property, wind up any business concerns, pay final debts, and file final income and estate tax returns.  The ultimate cost will depend upon how much work the personal representative must perform to administer the estate.

Once the final accounting is complete, the MUPC establishes the parameters for distribution of the intestate estate’s assets. The decedent’s surviving spouse has priority under the MUPC.The decedent’s surviving spouse takes the entire estate when the decedent has no surviving children or surviving parents. Additionally, if the decedent left surviving children who are also children of the surviving spouse, then the spouse will get the entire share. Lastly, the surviving spouse will get the entire share if the surviving spouse’s children (the decedent’s step-children) do not survive the decedent.

A surviving spouse’s share can be reduced if the decedent had other family members. The surviving spouse’s share will be reduced if the decedent had surviving parents, but no children. In that case, the surviving spouse will take the first $200,000, plus 3/4 of the balance of the estate. The remainder will go to the decedent’s surviving parents. The surviving spouse’s share will be $100,000, plus 1/2 of the remaining balance if all of the decedent’s children are children of the surviving spouse and the surviving spouse has at least one child that is not also a child of the decedent. The surviving spouse will be awarded the same amount if the decedent has at least one child who is not a child of the surviving spouse.

If the decedent dies without leaving a spouse, the decedent’s descendants get first priority. Next, if there are no children or grandchildren, then the surviving parents have priority. If there are no surviving parents, then the decedent’s siblings get priority. If the decedent dies without siblings, then the next of kin will get priority.

Troy Sullivan, Massachusetts Estate Planning Attorney

A Knowledgeable Estate Planning Attorney Can Help Avoid Unintended Results

Attorney Troy Sullivan, an experienced and knowledgeable estate planning on Boston’s North Shore, can help you avoid the unintended results, and potentially exorbitant costs to your family, of dying intestate. Call The Sullivan Firm, P.C. today at (978) 325-2721 to learn how careful estate planning can expedite or even avoid probate and dispose of your estate in the manner in which you want.

How Long Does the Probate Process Take in Massachusetts?

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When someone in Massachusetts dies (the “decedent”), their property and ownership rights are passed along to heirs and beneficiaries through a process known as probate. The extent to which a decedent’s estate will need to be probated depends upon how their property was titled and if they had a will. In most instances, at least some of the assets from a decedent’s estate eventually wind up being distributed in probate court.

Straight-forward cases involving a very small estate and few heirs can usually be resolved in less than a year. However, more complicated or highly contested cases, like those that fall under intestate succession laws, can drag on in court for years or even decades. Unfortunately, a lengthy and emotional probate process can be very hard on loved ones who are still mourning the death of the decedent.

What Factors Lengthen the Probate Process?

The circumstances surrounding every decedent’s estate are unique and ultimately influence how much time is required to go through the probate process. Factors that can lengthen probate process include:

Creditors who have one year in Massachusetts to make a claim against the estate.

  • People named as heirs in the will who cannot be located, have passed away or otherwise become incapacitated.
  • When beneficiaries aren’t aware of what assets or property was owned by the decedent and time is spent searching for documents like stock certificates or deeds to property held in another state or country.
  • Disagreements over what to do with a piece of real estate that involve court time to get the issue resolved.
  • Disputes over who should serve as the personal representative of the estate because one wasn’t clearly designated by the decedent.
  • Disagreements over the validity of the will itself that has to be settled in court first.
  • Disputes over how real estate title is held.

If a person dies without a will and then delays arise while trying to determine and locate next of kin or heirs during intestate succession proceedings.

These complications can hold up the probate process for years. Then you have variables like court waiting periods and statutory time frames that can further lengthen probate proceedings.

Preventing Delays in the Probate Process

Fortunately, there are several ways to avoid putting your loved ones through a lengthy and potentially heated probate process after you die, including:

  • Make sure you keep updated records on all family members, their relationships to you, and by including current contact information for each one. This is notably important when you don’t have a surviving spouse or any children, but do have other living relatives.
  • Compile an updated list of all your assets, how they are being held and where they’re located.
  • Speak with your family members beforehand about your plans for distributing your estate to minimize future disagreements.
  • Designate a personal representative who will administer your estate after you die.
  • Make sure that you have a clear title for any real property that you own, and that you have written down the location of assets like real estate titles, stock certificates or savings bonds.
  • Talk to an experienced Massachusetts estate planning attorney about ways to bypass the probate process altogether.

The average probate process in Massachusetts lasts between 18 months and two years. But you can avoid putting your loved ones through such a lengthy and emotional process by drafting an estate plan with clear instructions based on your final wishes.

Massachusetts Estate Planning & Probate Law Advisors

The best way to shorten the amount of time that your estate spends in probate, or avoid it completely, is to plan-ahead by drafting a rock-solid estate plan working side-by-side with an experienced estate planning attorney at The Sullivan Firm, P.C.

If we can assist you, call our office today to arrange a FREE exploratory meeting at: (978) 325-2721. Or, you can also conveniently contact us by email now.