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

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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.

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. Read more

What Happens in Massachusetts When a Will Cannot Be Found?

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In Massachusetts, a lost or misplaced will can present many problems for the family of the deceased. Losing a will may create lengthy and costly litigation among family members who each claim the estate of the deceased. Contentious litigation may drive a wedge through the family and could prevent the deceased’s true intentions from being carried out. As an estate planning specialist, Attorney Troy Sullivan can work with you to draft an effective estate plan and ensure that your wishes are carried out.  This will save everyone who has suffered the loss of the deceased from the stress and effort of attempting to prove what the person would have wanted. Read more

What happens if you die without an estate plan?

/in

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. Read more

Making Charitable Bequests in Your Will or Trust

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Upon their deaths, many individuals opt to leave part or all of their assets to a charity of their choosing. This is known as a charitable bequest. In fact, many charities rely on charitable bequests for a significant portion of their annual donations and regularly solicit bequests through fundraising drives. A charitable bequest can be made through a gift or via a will or trust. Read more