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.
Can I Be The Trustee Of My Own Trust in Massachusetts?
/in Trust FormationAs estate planning attorneys serving Gloucester, Rockport, Manchester by the Sea, Beverly, and throughout the North Shore, we often hear clients ask whether they can serve as the trustee of their own trust. The short answer is yes—in most cases, you can be your own trustee in Massachusetts, but it is important to understand exactly what that role means, what your legal duties are, and when serving as your own trustee makes sense.
A trust is a legal arrangement that separates legal ownership from beneficial enjoyment. The trustee is the person or institution responsible for managing the trust’s assets, following the terms of the trust document, and acting in the best interests of the beneficiaries. When you create a revocable living trust in Massachusetts, you can usually serve as both the grantor (the person creating and funding the trust) and the trustee. This allows you to maintain full control of your assets during your lifetime while still setting up a structure that can avoid probate and manage your affairs if you become incapacitated.
Serving As Your Own Trustee Under Massachusetts Law
Massachusetts law does not prohibit you from acting as trustee of your own revocable trust. In fact, it is common practice. Under Massachusetts General Laws Chapter 203E (the Massachusetts Uniform Trust Code), trustees—whether they are the grantor or not—owe fiduciary duties to the beneficiaries of the trust. These duties include loyalty, prudence, impartiality, and accountability (M.G.L. c.203E, §§ 801–813).
When you serve as your own trustee during your lifetime, you essentially retain the same control over your trust assets as if they were owned outright. You can buy, sell, invest, or use the assets as you wish, provided you are following the trust’s terms. Because you are also the beneficiary of your own revocable trust during your lifetime, your duties to yourself do not create a conflict.
However, upon your incapacity or death, your successor trustee—someone you name in the trust—will step in to manage and distribute the assets according to your instructions. This is where careful drafting becomes critical to avoid disputes or confusion.
Risks And Responsibilities Of Being Your Own Trustee
While being your own trustee offers convenience and control, it also means you are responsible for all aspects of trust management. This includes:
If you fail to carry out these duties, even unintentionally, you could create legal and tax problems for yourself or your beneficiaries. This is particularly important if you own property in other states, have complex investments, or expect your trust to hold business interests.
For irrevocable trusts, the rules are very different. If you serve as trustee of your own irrevocable trust, you may lose many of the asset protection and tax benefits the trust was intended to provide. In many cases, we advise clients to appoint an independent trustee for irrevocable trusts to preserve those benefits.
Choosing A Successor Trustee
Even if you serve as your own trustee while you are alive and well, you must choose a capable successor trustee to take over if you can no longer manage the trust. This person will have the same fiduciary duties under Massachusetts law, and their actions can have lasting impacts on your beneficiaries. Selecting someone who is responsible, organized, and trustworthy is essential.
Why Professional Legal Guidance Matters
While Massachusetts law allows you to act as your own trustee for most revocable trusts, doing so without understanding your duties and the potential consequences can lead to mistakes. Our role is to ensure your trust is structured in a way that protects your interests now and safeguards your beneficiaries in the future. We can help you weigh the pros and cons of serving as your own trustee, ensure your trust document complies with M.G.L. c.203E, and coordinate your trust with the rest of your estate plan.
Massachusetts Trust Frequently Asked Questions
Can I Be The Trustee Of My Own Revocable Trust In Massachusetts?
Yes. Most people who create revocable living trusts name themselves as the initial trustee so they can maintain control of their assets during their lifetime. Massachusetts law allows this under the Massachusetts Uniform Trust Code.
Can I Be The Trustee Of My Own Irrevocable Trust?
You can, but it is usually not recommended. Acting as trustee of your own irrevocable trust can jeopardize the trust’s asset protection and tax advantages. In most cases, appointing an independent trustee is better.
What Duties Do I Have As My Own Trustee?
You must follow the fiduciary duties outlined in M.G.L. c.203E, which include acting in good faith, avoiding conflicts of interest, keeping accurate records, and prudently managing trust investments.
Do I Have To Keep Separate Accounts For My Trust?
Yes. Trust assets should be held in accounts titled in the name of the trust. Mixing trust assets with personal accounts can cause legal and tax complications.
Who Becomes Trustee If I Can’t Manage My Trust Anymore?
Your successor trustee—named in your trust—will step in if you become incapacitated or pass away. It is important to choose someone reliable and willing to serve.
Can My Spouse And I Be Co-Trustees Of Our Trust?
Yes. Married couples often serve as co-trustees of a joint trust, which allows either spouse to act on behalf of the trust.
Will Being My Own Trustee Affect Probate Avoidance?
No. A properly funded revocable trust will still avoid probate even if you serve as trustee, provided all assets are titled in the trust’s name.
Do I Need An Attorney To Set Up A Trust If I’m My Own Trustee?
While it is not legally required, working with an attorney ensures your trust complies with Massachusetts law, avoids common pitfalls, and is fully integrated into your estate plan.
Are There Tax Implications If I Am My Own Trustee?
For a revocable trust, there are generally no separate tax filings while you are alive. For irrevocable trusts, serving as your own trustee could change the tax treatment, so professional advice is critical.
What Happens If I Don’t Name A Successor Trustee?
If you become unable to serve and no successor is named, the Probate and Family Court will appoint one, which can cause delays and add costs.
Call The Sullivan Firm P.C. For a Free Consultation
At The Sullivan Firm P.C., we help residents of Gloucester, Rockport, Manchester by the Sea, Beverly, and all across the North Shore create trusts that work exactly as intended. If you’re considering serving as your own trustee, we will guide you through the legal requirements, responsibilities, and best practices to ensure your trust is effective and enforceable.
Call The Sullivan Firm P.C. Today At 978-325-2721 For A Free Consultation. Our office is conveniently located in Gloucester, Massachusetts, and we proudly serve clients throughout Essex County. Let us help you design a trust that gives you control now and protects your loved ones later.
What Kind Of Property Should Be Put Into My Trust in Massachusetts?
/in Trust FormationAs estate planning attorneys serving Gloucester, Rockport, Manchester by the Sea, Beverly, and throughout the North Shore, we often hear clients ask whether they can serve as the trustee of their own trust. The short answer is yes—in most cases, you can be your own trustee in Massachusetts, but it is important to understand exactly what that role means, what your legal duties are, and when serving as your own trustee makes sense.
A trust is a legal arrangement that separates legal ownership from beneficial enjoyment. The trustee is the person or institution responsible for managing the trust’s assets, following the terms of the trust document, and acting in the best interests of the beneficiaries. When you create a revocable living trust in Massachusetts, you can usually serve as both the grantor (the person creating and funding the trust) and the trustee. This allows you to maintain full control of your assets during your lifetime while still setting up a structure that can avoid probate and manage your affairs if you become incapacitated.
Serving As Your Own Trustee Under Massachusetts Law
Massachusetts law does not prohibit you from acting as trustee of your own revocable trust. In fact, it is common practice. Under Massachusetts General Laws Chapter 203E (the Massachusetts Uniform Trust Code), trustees—whether they are the grantor or not—owe fiduciary duties to the beneficiaries of the trust. These duties include loyalty, prudence, impartiality, and accountability (M.G.L. c.203E, §§ 801–813).
When you serve as your own trustee during your lifetime, you essentially retain the same control over your trust assets as if they were owned outright. You can buy, sell, invest, or use the assets as you wish, provided you are following the trust’s terms. Because you are also the beneficiary of your own revocable trust during your lifetime, your duties to yourself do not create a conflict.
However, upon your incapacity or death, your successor trustee—someone you name in the trust—will step in to manage and distribute the assets according to your instructions. This is where careful drafting becomes critical to avoid disputes or confusion.
Risks And Responsibilities Of Being Your Own Trustee
While being your own trustee offers convenience and control, it also means you are responsible for all aspects of trust management. This includes:
If you fail to carry out these duties, even unintentionally, you could create legal and tax problems for yourself or your beneficiaries. This is particularly important if you own property in other states, have complex investments, or expect your trust to hold business interests.
For irrevocable trusts, the rules are very different. If you serve as trustee of your own irrevocable trust, you may lose many of the asset protection and tax benefits the trust was intended to provide. In many cases, we advise clients to appoint an independent trustee for irrevocable trusts to preserve those benefits.
Choosing A Successor Trustee
Even if you serve as your own trustee while you are alive and well, you must choose a capable successor trustee to take over if you can no longer manage the trust. This person will have the same fiduciary duties under Massachusetts law, and their actions can have lasting impacts on your beneficiaries. Selecting someone who is responsible, organized, and trustworthy is essential.
Why Professional Legal Guidance Matters
While Massachusetts law allows you to act as your own trustee for most revocable trusts, doing so without understanding your duties and the potential consequences can lead to mistakes. Our role is to ensure your trust is structured in a way that protects your interests now and safeguards your beneficiaries in the future. We can help you weigh the pros and cons of serving as your own trustee, ensure your trust document complies with M.G.L. c.203E, and coordinate your trust with the rest of your estate plan.
Frequently Asked Questions
Can I Be The Trustee Of My Own Revocable Trust In Massachusetts?
Yes. Most people who create revocable living trusts name themselves as the initial trustee so they can maintain control of their assets during their lifetime. Massachusetts law allows this under the Massachusetts Uniform Trust Code.
Can I Be The Trustee Of My Own Irrevocable Trust?
You can, but it is usually not recommended. Acting as trustee of your own irrevocable trust can jeopardize the trust’s asset protection and tax advantages. In most cases, appointing an independent trustee is better.
What Duties Do I Have As My Own Trustee?
You must follow the fiduciary duties outlined in M.G.L. c.203E, which include acting in good faith, avoiding conflicts of interest, keeping accurate records, and prudently managing trust investments.
Do I Have To Keep Separate Accounts For My Trust?
Yes. Trust assets should be held in accounts titled in the name of the trust. Mixing trust assets with personal accounts can cause legal and tax complications.
Who Becomes Trustee If I Can’t Manage My Trust Anymore?
Your successor trustee—named in your trust—will step in if you become incapacitated or pass away. It is important to choose someone reliable and willing to serve.
Can My Spouse And I Be Co-Trustees Of Our Trust?
Yes. Married couples often serve as co-trustees of a joint trust, which allows either spouse to act on behalf of the trust.
Will Being My Own Trustee Affect Probate Avoidance?
No. A properly funded revocable trust will still avoid probate even if you serve as trustee, provided all assets are titled in the trust’s name.
Do I Need An Attorney To Set Up A Trust If I’m My Own Trustee?
While it is not legally required, working with an attorney ensures your trust complies with Massachusetts law, avoids common pitfalls, and is fully integrated into your estate plan.
Are There Tax Implications If I Am My Own Trustee?
For a revocable trust, there are generally no separate tax filings while you are alive. For irrevocable trusts, serving as your own trustee could change the tax treatment, so professional advice is critical.
What Happens If I Don’t Name A Successor Trustee?
If you become unable to serve and no successor is named, the Probate and Family Court will appoint one, which can cause delays and add costs.
Call Troy Sullivan Firm Today For a Free Consultation
At The Sullivan Firm P.C., we help residents of Gloucester, Rockport, Manchester by the Sea, Beverly, and all across the North Shore create trusts that work exactly as intended. If you’re considering serving as your own trustee, we will guide you through the legal requirements, responsibilities, and best practices to ensure your trust is effective and enforceable.
Call The Sullivan Firm P.C. Today At 978-325-2721 For A Free Consultation. Our office is conveniently located in Gloucester, Massachusetts, and we proudly serve clients throughout Essex County. Let us help you design a trust that gives you control now and protects your loved ones later.
The Risks Of Serving As Your Own Trustee In Massachusetts
/in Trust FormationAs estate planning attorneys serving Gloucester, Rockport, Manchester by the Sea, Beverly, and the entire North Shore, we have worked with many clients who consider naming themselves as trustee of their own trust. While this approach may seem practical, it can create serious legal, financial, and administrative challenges. In Massachusetts, trustees have strict legal obligations that must be met under state law, and failing to meet those obligations can have lasting consequences.
The decision to serve as your own trustee should not be made lightly. Although a trustee can be the same person as the trust creator—especially in revocable living trusts—Massachusetts law imposes fiduciary duties that are binding and enforceable. The responsibilities extend beyond simply managing your own assets; they include acting impartially toward beneficiaries, complying with recordkeeping requirements, and adhering to the Massachusetts Uniform Trust Code (M.G.L. c.203E).
Understanding Fiduciary Duties Under Massachusetts Law
Under M.G.L. c.203E, §801, a trustee must administer the trust in good faith, in accordance with its terms, and in the interests of the beneficiaries. Even if you are both the trustee and a beneficiary, you are still bound by these fiduciary duties. This means you must act prudently, avoid conflicts of interest, and ensure trust assets are invested and distributed appropriately.
Serving as your own trustee can make it difficult to maintain this impartiality. For example, if you amend your trust to favor one beneficiary over another—or make distributions that could be viewed as self-serving—you risk violating fiduciary duty. A breach can result in legal action by beneficiaries, removal as trustee, and personal liability for damages under M.G.L. c.203E, §1001.
Exposure To Personal Liability
Another major risk of serving as your own trustee is personal liability. If trust assets are mismanaged, commingled with personal assets, or invested improperly, you can be held personally responsible for losses. Massachusetts law under M.G.L. c.203E, §1002 allows courts to surcharge a trustee for any loss caused by a breach of trust.
Even honest mistakes—such as failing to properly value assets, missing tax deadlines, or overlooking beneficiary notices—can result in liability. Because trustees are expected to meet a professional standard of care, ignorance of the law is not a defense.
The Impact Of Incapacity
One of the most overlooked risks is what happens if you become incapacitated while serving as trustee. Without a named successor trustee and clear incapacity provisions, your trust may become effectively frozen, delaying distributions and asset management. This can trigger unnecessary court involvement to appoint a new trustee, contrary to the purpose of having a trust in the first place.
Administrative Burden And Compliance Requirements
Trust administration in Massachusetts requires ongoing attention to legal details, including:
For many individuals, these tasks require substantial time and financial knowledge. If you are not comfortable with complex recordkeeping, tax reporting, or legal compliance, serving as your own trustee can become a stressful and risky responsibility.
Why Professional Or Co-Trustee Arrangements Can Help
In many situations, naming a professional trustee or a trusted co-trustee can provide better protection. This arrangement allows you to maintain some control while benefiting from the administrative skill, impartiality, and legal compliance a professional can provide. It also helps ensure continuity in the event of incapacity or death.
Frequently Asked Questions
Can I Be My Own Trustee In Massachusetts?
Yes. Under Massachusetts law, the person who creates a trust can also serve as trustee, particularly in the case of a revocable living trust. However, you are still bound by all fiduciary duties and responsibilities under the Massachusetts Uniform Trust Code.
What Are My Fiduciary Duties If I Am My Own Trustee?
You must act in the best interests of the beneficiaries, manage trust assets prudently, avoid conflicts of interest, follow the terms of the trust, and comply with all legal and tax requirements. These duties apply even if you are also a beneficiary.
Can I Be Personally Sued As My Own Trustee?
Yes. If you breach your fiduciary duties—intentionally or through negligence—beneficiaries can bring legal action against you. Courts can order you to repay losses personally and remove you as trustee.
Does Serving As My Own Trustee Affect Taxes?
If the trust is revocable, the IRS generally disregards it for tax purposes, meaning income is reported on your personal return. However, you must still ensure proper reporting, maintain separate trust accounts, and comply with all applicable tax laws.
What Happens If I Become Incapacitated While Serving As My Own Trustee?
If your trust does not name a successor trustee or define how incapacity is determined, administration of the trust can be delayed or halted until the Probate and Family Court appoints a replacement.
Is It Better To Have A Professional Trustee In Massachusetts?
For many people, yes. A professional trustee brings objectivity, experience, and administrative efficiency, which can reduce the risk of liability and ensure compliance with Massachusetts law.
Can I Appoint A Co-Trustee Instead Of A Sole Professional Trustee?
Yes. A co-trustee arrangement allows you to retain some control while sharing duties with a professional or trusted individual, balancing involvement with protection.
Do Trusts Require Annual Accountings In Massachusetts?
Yes. Under M.G.L. c.203E, §813, trustees must provide beneficiaries with annual accountings, unless waived. Failure to provide these can result in disputes or legal action.
What Is The Prudent Investor Rule In Massachusetts?
The prudent investor rule, under M.G.L. c.203C, requires trustees to invest and manage trust assets with care, skill, and caution, considering the purposes and terms of the trust.
Can My Successor Trustee Change My Trust After I’m Gone?
No. Once you pass away, a revocable trust becomes irrevocable. The successor trustee must follow its terms as written and cannot make substantive changes.
Call Troy Sullivan Firm Today For a Free Consultation
At The Sullivan Firm P.C., we work with individuals and families throughout Gloucester, Rockport, Manchester by the Sea, Beverly, and the North Shore to create trust arrangements that are both effective and legally sound. Serving as your own trustee may seem straightforward, but the risks are significant if legal obligations are overlooked. We can help you determine whether self-trusteeship is the right choice and, if not, recommend safer alternatives.
Call The Sullivan Firm P.C. today at 978-325-2721 for a free consultation. Our office is located in Gloucester, Massachusetts, and we proudly serve clients throughout Essex County. Let us help you protect your trust, your assets, and your peace of mind.
Does A Revocable Trust Avoid Probate In Massachusetts?
/in Trust FormationAs estate planning attorneys serving Gloucester, Rockport, Manchester by the Sea, Beverly, and all of the North Shore, we know one of the most common goals for our clients is to avoid probate. Probate in Massachusetts can be time-consuming, public, and costly. A revocable trust is often promoted as the primary way to achieve this, and while it can indeed help, the truth is more nuanced. The effectiveness of a revocable trust depends on how it’s established and whether it’s properly funded.
Under Massachusetts law, probate is the legal process of proving a will and settling an estate. If you have a revocable trust, the assets placed into the trust during your lifetime generally do not go through probate. However, if assets remain outside the trust at your death, those assets may still need to pass through the Probate and Family Court under Massachusetts General Laws Chapter 190B (the Massachusetts Uniform Probate Code).
How A Revocable Trust Works To Avoid Probate
A revocable trust—sometimes called a living trust—is a legal entity you create during your lifetime to hold ownership of assets. You can change or revoke it at any time while you are alive. When properly funded, meaning your assets are retitled in the trust’s name, those assets will pass directly to your named beneficiaries without going through probate.
Massachusetts General Laws c. 203E, § 101 confirms that a trust is valid if it is created by a competent settlor, has a trustee, has identifiable beneficiaries, and complies with state law. Because the trust—not you personally—owns the assets, those assets do not become part of your probate estate when you die.
When Probate May Still Be Required Even With A Revocable Trust
Even if you have a revocable trust, probate might still be necessary in several situations:
The Importance Of Proper Trust Funding
The key to making a revocable trust work is ensuring it is fully funded during your lifetime. This means changing titles and ownership of real estate, bank accounts, brokerage accounts, and certain personal property so they are held by the trust. For real estate in Massachusetts, this involves executing and recording a new deed transferring the property to the trustee.
We frequently see situations where a client created a trust but left significant assets out of it. Without a will, these assets are distributed under Massachusetts intestacy laws in M.G.L. c. 190B, § 2-101 and following, which may not reflect your wishes.
Why You Still Need A Will With A Trust
Even with a fully funded revocable trust, you should still have a will. The will serves as a safeguard for any assets not in the trust and allows you to name guardians for minor children. A pour-over will directs any unfunded assets into your trust, ensuring they are distributed according to your instructions.
In our practice across Essex County, we ensure that wills and trusts work together to protect your estate. The trust avoids probate for assets it owns, while the will captures anything left behind.
Frequently Asked Questions
Does A Revocable Trust Automatically Avoid Probate In Massachusetts?
No. A revocable trust will only avoid probate for assets that have been properly transferred into the trust during your lifetime. Assets left in your own name at the time of death may still require probate.
What Happens If My Trust Is Not Fully Funded?
If your trust is unfunded or only partially funded, any assets remaining in your personal name will become part of your probate estate. Your will—or, if none, the Massachusetts intestacy laws—will determine how those assets are distributed.
Do I Still Need A Will If I Have A Revocable Trust?
Yes. A will is important even if you have a trust. It serves as a backup to transfer assets not already in your trust and allows you to name guardians for minor children.
Can Real Estate Be Placed Into A Revocable Trust To Avoid Probate?
Yes. Transferring Massachusetts real estate into your trust is a common way to avoid probate for that property. This requires a new deed transferring ownership to the trustee.
Are Retirement Accounts Placed In A Trust?
Retirement accounts typically pass by beneficiary designation, not through a trust. However, in some cases, the trust may be named as the beneficiary if it fits your planning goals.
Does A Revocable Trust Protect Assets From Creditors Or Medicaid?
No. Because you retain control over a revocable trust, the assets are still considered yours for creditor claims and Medicaid eligibility purposes. Asset protection requires other planning tools.
What Is The Probate Process If I Have A Pour-Over Will?
A pour-over will still goes through probate, but its sole purpose is to transfer unfunded assets into the trust. This can simplify the process compared to estates with no trust.
How Long Does Probate Take In Massachusetts Without A Trust?
Probate in Massachusetts can take several months to over a year, depending on complexity. A properly funded trust can significantly reduce or eliminate this delay for many assets.
Can My Trust Be Contested?
Yes. While less common than will contests, trusts can be challenged on grounds such as lack of capacity or undue influence. Proper drafting and execution help reduce this risk.
Is A Revocable Trust Public Record In Massachusetts?
No. Unlike probate, which is a public court process, the terms of a trust generally remain private, providing confidentiality for your estate plan.
Call Troy Sullivan For A Free Consultation
At The Sullivan Firm P.C., we create estate plans that actually work for families in Gloucester, Rockport, Manchester by the Sea, Beverly, and throughout the North Shore. A revocable trust can be a powerful way to avoid probate in Massachusetts, but only if it’s set up and funded correctly. We ensure your trust is tailored to your needs, fully compliant with Massachusetts law, and coordinated with your other estate planning documents.
Call The Sullivan Firm P.C. Today At 978-325-2721 For A Free Consultation. Our Gloucester office serves clients throughout Essex County, and we are ready to help you protect your assets, simplify estate administration, and give your family peace of mind.
Who Should Have A Revocable Trust In Massachusetts?
/in Special Needs Trusts, Trust Administration, Trust Formation, Trust ServicesAs estate planning attorneys serving Gloucester, Rockport, Manchester by the Sea, Beverly, and across the North Shore, we are often asked whether a revocable trust is the right choice. While not every Massachusetts resident needs one, many families benefit greatly from including a revocable trust in their estate plan. A revocable trust allows you to keep control over your assets during your lifetime while also making it easier for your chosen beneficiaries to receive them after your death—without the delays and costs of probate.
Under Massachusetts law, trusts are governed in part by the Massachusetts Uniform Trust Code, found in Massachusetts General Laws (M.G.L.) Chapter 203E. A revocable trust—sometimes called a living trust—lets you change, amend, or revoke it during your lifetime. This flexibility makes it appealing for many people who want both control and convenience. However, the decision to have one depends on your goals, assets, and family situation.
Avoiding Probate And Maintaining Privacy
One of the primary reasons people create a revocable trust is to avoid probate. Probate in Massachusetts is governed by the Massachusetts Uniform Probate Code (M.G.L. c.190B). Even with simplified procedures, probate can be time-consuming and public. Assets held in a properly funded revocable trust bypass the probate process entirely, allowing for faster distribution to beneficiaries and maintaining your family’s privacy.
For those with real estate in multiple states, a revocable trust can help avoid the need for separate probate proceedings in each state. This is especially beneficial for Massachusetts residents who also own vacation homes in other parts of the country.
Planning For Incapacity
A revocable trust is not just about what happens after death—it also plays a role during your lifetime. If you become incapacitated, your successor trustee can step in and manage trust assets without the need for a court-appointed guardian or conservator. This can save time, money, and stress for your loved ones. Under M.G.L. c.203E § 602, you retain the power to revoke or amend the trust while competent, but the document can name a trusted person to act if you cannot.
Who Should Strongly Consider A Revocable Trust
While anyone can have a revocable trust, it is especially beneficial for:
Funding The Trust Is Essential
Creating a revocable trust is only the first step. It must be funded—meaning you must transfer ownership of assets into the trust’s name. Real estate deeds must be updated, and accounts retitled. Failure to fund the trust could mean those assets still go through probate, undermining one of the trust’s biggest advantages.
Massachusetts law recognizes pour-over wills (M.G.L. c.190B § 2-511) that direct assets not already in your trust at the time of death into the trust. This acts as a safeguard but still may involve probate for those assets.
A Coordinated Estate Plan
A revocable trust should work together with other essential documents such as your will, durable power of attorney, and health care proxy. Having a trust without these complementary documents can leave gaps in your planning. Our work with North Shore clients often involves creating a coordinated set of estate planning tools to ensure all aspects of your financial and personal affairs are protected.
Massachusetts Revocable And Irrevocable Trust Frequently Asked Questions
What Is The Difference Between A Revocable And Irrevocable Trust In Massachusetts?
A revocable trust can be changed or revoked during your lifetime, giving you full control over the assets. An irrevocable trust generally cannot be changed once created, which can offer stronger asset protection and tax benefits but less flexibility.
Does A Revocable Trust Help Me Avoid Massachusetts Estate Taxes?
Not by itself. A revocable trust does not remove assets from your taxable estate for Massachusetts estate tax purposes. Other strategies may be needed to reduce estate tax exposure.
Can A Revocable Trust Protect My Assets From Creditors?
No. While you are alive, assets in a revocable trust are still considered your property and can be reached by creditors.
Is A Revocable Trust Public Record In Massachusetts?
No. Unlike a will that is filed with the probate court, a trust generally remains private, which is one reason many clients prefer to use one.
If I Have A Revocable Trust, Do I Still Need A Will?
Yes. A pour-over will ensures that any assets not titled in the trust at your death are transferred into it, preventing them from passing under intestacy laws.
Can I Be My Own Trustee Of A Revocable Trust?
Yes. Most people name themselves as the initial trustee and designate a successor trustee to take over upon incapacity or death.
Does A Revocable Trust Replace A Durable Power Of Attorney?
No. A durable power of attorney is still necessary to handle financial matters outside the trust, such as retirement accounts or other personal transactions.
Will My Retirement Accounts Go Into My Revocable Trust?
Usually, retirement accounts like IRAs and 401(k)s are best left outside the trust, with designated beneficiaries named directly, though there are exceptions that should be discussed with an attorney.
How Does A Revocable Trust Affect My Mortgage?
Transferring real estate into a revocable trust typically does not trigger a due-on-sale clause, but you should confirm with your lender and attorney.
Can A Revocable Trust Help Avoid Guardianship Or Conservatorship Proceedings?
Yes. If you become incapacitated, your successor trustee can manage trust assets without the need for court involvement.
Call Troy Sullivan Firm Today For a Free Consultation
At The Sullivan Firm P.C., we help clients in Gloucester, Rockport, Manchester by the Sea, Beverly, and across the North Shore determine whether a revocable trust fits their needs. We design trusts that work hand-in-hand with your other estate planning documents, ensuring your plan is both effective and enforceable under Massachusetts law.
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 all of Essex County. Let’s discuss your goals and create an estate plan that protects your assets and your family’s future.
Does A Revocable Trust Protect My Assets From Nursing Home Costs In Massachusetts?
/in Trust FormationAs estate planning attorneys serving Gloucester, Rockport, Manchester by the Sea, Beverly, and all of the North Shore, we are often asked whether creating a revocable trust can shield assets from nursing home expenses. Many Massachusetts residents set up revocable trusts to avoid probate and keep their estate plans private. While these trusts can be excellent tools for estate administration, they do not provide protection from long-term care costs.
Under Massachusetts law, MassHealth (the state’s Medicaid program) counts the assets in a revocable trust as available resources when determining eligibility for nursing home benefits. This means that if you can amend, revoke, or access the assets in the trust, those assets will be treated as yours for eligibility purposes. A revocable trust does not remove the property from your financial control, so it remains subject to spend-down requirements before MassHealth coverage begins.
How Massachusetts Law Treats Revocable Trust Assets
Massachusetts General Laws Chapter 118E governs the administration of MassHealth. When reviewing an application for long-term care benefits, the program evaluates both directly owned assets and those in certain trusts. According to 130 CMR 520.023(C), any principal in a revocable trust that can be paid to or for the benefit of the applicant is considered a countable asset.
This means that if you place your home, bank accounts, or investments into a revocable trust, they will still be counted toward the $2,000 asset limit for MassHealth eligibility. The reason is simple: as long as you retain the ability to revoke the trust and reclaim the assets, they are legally considered available to you.
Why Revocable Trusts Are Still Valuable
While revocable trusts do not protect against nursing home costs, they are still a critical part of a comprehensive estate plan. They allow your chosen successor trustee to manage your assets without court involvement if you become incapacitated, and they ensure a smoother transition of property after your death by avoiding probate.
A revocable trust can also coordinate with other planning strategies, including irrevocable Medicaid trusts, to create a balance between accessibility and asset protection. The key is knowing when and how to use each tool.
Asset Protection Requires Irrevocable Planning
If the goal is to protect assets from nursing home costs, an irrevocable trust is usually the appropriate structure. In an irrevocable trust, you permanently transfer ownership of the assets to the trust, and you cannot take them back. Under 130 CMR 520.019, assets placed into an irrevocable trust are generally not countable for MassHealth eligibility purposes after the five-year look-back period has passed.
The timing is critical—transferring assets into an irrevocable trust within five years of applying for MassHealth can trigger a disqualification period. This is why advance planning is so important for anyone concerned about long-term care costs.
Working With An Attorney To Coordinate Your Plan
We regularly advise clients in Essex County who already have a revocable trust but also want to protect assets from the high cost of nursing home care. In many cases, the best solution is to maintain the revocable trust for probate avoidance and create an irrevocable trust for Medicaid planning. Each client’s needs, assets, and family circumstances are unique, so we tailor the approach to the individual situation.
Having both types of trusts, coordinated properly, can ensure that your estate plan works for incapacity, probate, and long-term care protection.
Massachusetts Revocable Trust Frequently Asked Questions
Does A Revocable Trust Protect My Home From Nursing Home Costs In Massachusetts?
No. If your home is in a revocable trust, MassHealth will treat it as an available asset because you retain the power to revoke the trust and reclaim ownership.
What Is The Difference Between A Revocable Trust And An Irrevocable Medicaid Trust?
A revocable trust can be changed or canceled at any time and does not protect assets from MassHealth. An irrevocable Medicaid trust cannot be altered once created and, after five years, can protect assets from nursing home costs.
Can I Convert My Revocable Trust Into An Irrevocable Trust For Medicaid Planning?
In most cases, yes, but doing so is considered a new transfer of assets. This means the five-year look-back period will start from the date of conversion, potentially delaying MassHealth eligibility.
Will MassHealth Take All My Assets Before Providing Benefits?
MassHealth requires that you spend down countable assets to $2,000 or less (for an individual) before it will provide long-term care coverage. Certain assets, like a primary vehicle or some personal belongings, may be exempt.
Does Transferring My House To My Children Protect It From Nursing Home Costs?
Not immediately. Transfers within five years of applying for MassHealth can trigger a penalty period. It’s often safer to use an irrevocable trust rather than an outright transfer.
Is It Too Late To Protect Assets If I’m Already In A Nursing Home?
Options are more limited after entering a nursing home, but there may still be legal strategies to protect some assets for a spouse or other family members. Immediate legal advice is crucial.
Why Do People Still Use Revocable Trusts If They Don’t Protect Against Nursing Home Costs?
Because they provide excellent probate avoidance, privacy, and incapacity management benefits, making them a valuable part of a complete estate plan.
Does Putting My Assets In A Revocable Trust Affect My Taxes?
No. For income tax purposes, assets in a revocable trust are still treated as yours. You report income the same way as before creating the trust.
Can I Keep Both A Revocable And Irrevocable Trust?
Yes. Many people use a revocable trust for flexible estate management and an irrevocable trust for Medicaid planning, ensuring both convenience and protection.
When Should I Start Medicaid Planning In Massachusetts?
Ideally, at least five years before you anticipate needing nursing home care. This allows transfers to an irrevocable trust to fall outside the MassHealth look-back period.
Call Troy Sullivan Firm Today For a Free Consultation
At The Sullivan Firm P.C., we help individuals and families throughout Gloucester, Rockport, Manchester by the Sea, Beverly, and across the North Shore create estate plans that work for both life and long-term care needs. If you have a revocable trust and are concerned about nursing home costs, we can guide you on how to integrate Medicaid planning into your existing strategy.
Call The Sullivan Firm P.C. Today At 978-325-2721 For A Free Consultation. Our law offices are located in Gloucester, Massachusetts, and we proudly serve clients in all of Essex County.
Is A Revocable Living Trust Recognized Under Massachusetts Law?
/in Trust FormationAs estate planning attorneys serving Gloucester, Rockport, Manchester by the Sea, Beverly, and all across the North Shore, we often meet clients who want to know whether a revocable living trust is legally valid in Massachusetts. The short answer is yes—a revocable living trust is recognized under Massachusetts law and is one of the most flexible and powerful estate planning tools available. But simply creating one is not enough. It must be carefully drafted, properly funded, and coordinated with other legal documents to ensure it works as intended.
A revocable living trust is a written agreement in which you, as the grantor, transfer assets into a trust during your lifetime. You usually serve as your own trustee while you are alive and capable, maintaining full control over your assets. Because it is “revocable,” you may amend or terminate it at any time during your lifetime. Upon your death or incapacity, your chosen successor trustee manages or distributes the assets according to your instructions.
Massachusetts Legal Recognition Of Revocable Living Trusts
Under Massachusetts law, trusts—whether revocable or irrevocable—are recognized and enforced if they meet the legal requirements. The Massachusetts Uniform Trust Code (M.G.L. c.203E) governs the creation, validity, and administration of trusts. Section 401 of the Code specifies that a trust may be created by transferring property to a trustee during the settlor’s lifetime, declaring oneself as trustee, or by will.
This means a revocable living trust is entirely valid as long as:
While Massachusetts law allows you to act as your own trustee, the trust is not effective in avoiding probate unless assets are actually transferred into it during your lifetime. This process—called funding the trust—is critical.
Key Benefits Under Massachusetts Law
One of the main benefits of a revocable living trust under Massachusetts law is probate avoidance. When properly funded, assets in a revocable trust pass directly to your beneficiaries without going through the Probate and Family Court. This can save time, reduce costs, and keep your affairs private. Under M.G.L. c.190B (Massachusetts Uniform Probate Code), assets not held in a trust or passing by beneficiary designation typically require probate unless they qualify for certain small estate exemptions.
A revocable living trust also allows you to plan for incapacity. If you become unable to manage your affairs, your successor trustee can take over immediately without the need for a court-appointed guardian or conservator. This is consistent with M.G.L. c.203E, § 816, which grants trustees powers to manage trust property according to the trust terms.
Limitations And Ramifications
While revocable living trusts are powerful, they are not a cure-all. Because they are revocable, the assets in them remain part of your taxable estate and are subject to creditors during your lifetime. They also do not protect assets from long-term care costs in the same way certain irrevocable trusts may.
Another important point is that a revocable trust must be coordinated with a will—specifically a “pour-over” will—to ensure that any assets left outside the trust at your death are transferred into it. Without a pour-over will, those assets could be distributed under Massachusetts intestate succession laws (M.G.L. c.190B, § 2-101 and following), potentially going to unintended heirs.
Why Local Legal Guidance Matters
In Essex County, we see many cases where people used generic trust forms or online templates, only to have their trusts fail to avoid probate because they were never funded or were improperly drafted under Massachusetts law. Our role is to ensure your revocable living trust complies with the Massachusetts Uniform Trust Code, works with your other estate planning documents, and accomplishes your goals for your family.
Massachusetts Revocable Living Trust Frequently Asked Questions
Is A Revocable Living Trust Valid In Massachusetts?
Yes. Massachusetts law recognizes revocable living trusts under the Massachusetts Uniform Trust Code (M.G.L. c.203E). They must be in writing, identify a trustee and beneficiary, and contain property.
Does A Revocable Living Trust Avoid Probate In Massachusetts?
It can, but only if it is properly funded during your lifetime. Assets left outside the trust at death may still go through probate unless they have a beneficiary designation or are jointly owned.
Do I Still Need A Will If I Have A Revocable Living Trust?
Yes. A pour-over will ensures that any assets not titled in your trust at death are transferred into the trust and distributed according to its terms.
Can I Be My Own Trustee Of A Revocable Living Trust?
Yes. Most people serve as their own trustee during their lifetime, maintaining full control over trust assets until incapacity or death.
Can A Revocable Living Trust Protect Assets From Creditors Or Nursing Home Costs?
No. Because the trust is revocable, assets in it are still considered your property and remain available to creditors and for MassHealth eligibility calculations.
What Happens If I Don’t Fund My Revocable Living Trust?
If you fail to transfer assets into the trust, it will not avoid probate for those assets. They will be subject to probate under Massachusetts law.
How Is A Revocable Living Trust Taxed In Massachusetts?
During your lifetime, it is treated as your own property for income tax purposes. It does not have a separate tax ID unless you become incapacitated or after death.
Can I Change Or Cancel My Revocable Living Trust?
Yes. As long as you have capacity, you may amend or revoke your trust at any time.
Is A Revocable Living Trust Public Or Private In Massachusetts?
Unlike a will, which becomes public during probate, a trust generally remains private.
What Happens To My Revocable Living Trust When I Die?
It becomes irrevocable, and the successor trustee distributes assets according to the trust terms.
Call Troy Sullivan Firm Today For a Free Consultation
At The Sullivan Firm P.C., we prepare, review, and maintain revocable living trusts for individuals and families across Gloucester, Rockport, Manchester by the Sea, Beverly, and the entire North Shore. We ensure that your trust meets all Massachusetts legal requirements, works seamlessly with your other estate planning documents, and is properly funded to accomplish your goals.
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 Essex County.
Durable Power of Attorney in Massachusetts: Why It’s Essential for Life Planning
/in Estate PlanningAs estate planning attorneys serving Gloucester, Rockport, Manchester by the Sea, Beverly, and communities throughout Essex County, we regularly talk with individuals and families about how to protect their loved ones, assets, and decision-making power during difficult times. One of the most important legal tools we recommend for life planning is a Durable Power of Attorney (DPOA). Many people assume estate planning only applies after death, but true planning addresses what happens during life—especially if illness, injury, or cognitive decline affects your ability to manage your affairs.
A Durable Power of Attorney is a written legal document that allows you to appoint someone you trust—called your “attorney-in-fact” or “agent”—to make financial and legal decisions on your behalf. What makes this power “durable” is that it remains effective even if you become incapacitated. Without this document, no one—not even your spouse or adult children—can legally manage your accounts or handle your personal business unless they go to court and obtain guardianship or conservatorship. That process is time-consuming, expensive, and emotionally draining. A properly executed Durable Power of Attorney avoids all of that.
Under Massachusetts General Laws Chapter 190B, § 5-501, a power of attorney becomes “durable” when the document clearly states that it is not affected by the principal’s subsequent disability or incapacity. This wording is essential. Without it, the authority would automatically end the moment you become legally incapacitated—just when it’s needed most.
Avoiding Court Intervention With A Durable Power Of Attorney
If you don’t have a DPOA and lose the ability to manage your finances, your family must petition the Massachusetts Probate and Family Court for a conservatorship. That means a judge decides who manages your financial affairs, how they do it, and may require ongoing court supervision. This not only delays necessary decisions—like paying bills, selling property, or accessing retirement funds—but also exposes your personal matters to public court records.
By creating a DPOA, you stay in control. You choose who acts for you, and you can define the scope of their authority. For example, you might authorize your agent to handle banking, investments, real estate transactions, tax filings, or business operations. You can give immediate powers or have the DPOA “spring” into effect only if a doctor declares you incapacitated.
Durable Powers Of Attorney Are Not Just For Seniors
We often tell our clients across the North Shore that life doesn’t always give us warning signs. Accidents and illness can affect anyone at any age. That’s why every adult in Massachusetts should consider creating a DPOA as part of their overall life plan. Young professionals, married couples, and business owners all benefit from having someone legally empowered to handle matters if the unexpected occurs.
Without this protection in place, even temporary incapacity can bring financial chaos. Utility bills go unpaid, mortgages default, and important transactions stall—often with lasting consequences. A Durable Power of Attorney ensures business can continue, and your loved ones are not left powerless.
The Legal Requirements In Massachusetts
Massachusetts law does not require a DPOA to be notarized, but we strongly advise it. Most banks, title companies, and financial institutions require a notarized document to accept the agent’s authority. The document must be signed by the principal and should clearly state the durability language. You should also name one or more successor agents in case your first choice cannot serve.
It’s also important to coordinate your DPOA with other documents in your estate plan, such as your will, trust, and health care proxy. Each serves a different role, but they work together to protect you, your assets, and your family.
Clarity, Convenience, And Peace Of Mind
The truth is simple: a Durable Power of Attorney gives you peace of mind. You don’t have to worry about court involvement, frozen accounts, or legal red tape if something happens. Your family doesn’t have to guess what you would have wanted—or fight to be heard. By taking this step today, you’re putting a reliable system in place for the future.
At The Sullivan Firm P.C., we take the time to help you decide who should serve as your agent and how to tailor the DPOA to fit your needs. Whether you live in Gloucester, Rockport, Manchester by the Sea, Beverly, or anywhere in Essex County, we’re here to help you plan ahead with clarity and confidence.
Frequently Asked Questions
What Does A Durable Power Of Attorney Allow Someone To Do In Massachusetts?
A Durable Power of Attorney lets your appointed agent handle financial and legal matters on your behalf. That can include banking, paying bills, selling or refinancing real estate, managing investments, filing taxes, or dealing with government benefits. The powers you grant are defined in the document and can be broad or limited.
Is A Durable Power Of Attorney Valid After Death?
No. A DPOA ends immediately upon the death of the principal. After death, the authority to manage the estate transfers to the personal representative named in your will or appointed by the court if no will exists.
Does A Spouse Automatically Have Power Of Attorney In Massachusetts?
No. Your spouse does not have automatic authority to make legal or financial decisions on your behalf unless you have executed a DPOA giving them that power. Without it, they would need to go to court to obtain conservatorship.
Can I Appoint More Than One Agent In My Durable Power Of Attorney?
Yes. You can name co-agents who must act together or allow them to act independently. You can also name successor agents in case your first choice becomes unable or unwilling to serve.
Do I Need A Lawyer To Draft A Durable Power Of Attorney In Massachusetts?
While it’s not required by law, it is highly recommended. The language in a DPOA must be precise to meet legal standards and practical requirements. An attorney ensures your document is enforceable and tailored to your circumstances.
Can I Revoke Or Change A Durable Power Of Attorney?
Yes. You can revoke or amend a DPOA at any time, as long as you are mentally competent. The revocation must be in writing, and you should notify all institutions and individuals who had the original version.
What’s The Difference Between A Durable Power Of Attorney And A Health Care Proxy?
A DPOA covers financial and legal matters. A Health Care Proxy, governed by M.G.L. c.201D, gives someone authority to make medical decisions if you cannot. Both documents serve different purposes and should be part of a complete life plan.
Can A Power Of Attorney Be Used To Make Gifts Or Change Beneficiaries?
Only if those powers are explicitly stated in the DPOA. Massachusetts courts may not allow agents to make significant gifts or change estate plans unless the document clearly authorizes those actions.
Will My Bank Accept My Power Of Attorney?
Banks and financial institutions may require the document to be notarized or accompanied by a certification. That’s why we prepare DPOAs with all commonly required legal language and encourage clients to notify their financial institutions in advance.
Is My Power Of Attorney Valid In Other States?
Most states honor a DPOA executed in Massachusetts if it meets local requirements. However, it’s wise to review your documents with a local attorney if you move or own property in another state.
Call The Sullivan Firm P.C.
At The Sullivan Firm P.C., we help individuals and families across Gloucester, Rockport, Manchester by the Sea, Beverly, and all of Essex County prepare for life’s unexpected events. A Durable Power of Attorney is one of the most important steps you can take to protect your future. We’ll work with you to create a legally sound and personalized document that reflects your wishes and avoids court involvement.
Call The Sullivan Firm P.C. Today At 978-325-2721 For A Free Consultation. Our office is located in Gloucester, Massachusetts, and we proudly serve clients throughout the North Shore and Essex County. Secure your future now with experienced legal guidance and peace of mind.
Massachusetts Health Care Proxies Explained: Who Will Make Decisions If You Can’t?
/in Estate Planning, Legal NewsAs 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.
How an Irrevocable Trust Can Protect Your Assets in Massachusetts
/in Estate Planning, Legal NewsAs 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.