Mental Incapacity and Estate Planning

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The common issue of mental incapacity is one of the most important reasons for beginning the estate planning process early. While you may work hard at taking care of yourself, you do not know what the future has in store for you. Estate planning allows you to ensure that your assets are protected and distributed in the manner you choose in the event that you become incapacitated later on in life. The Commonwealth of Massachusetts will not recognize any legal documents drafted or signed by individuals who are mentally incapacitated. A will is one such legal document. Mental incapacitation can occur due to mental illness, coma, physical ailment, or the side effects of prescriptions. Generally speaking, mental incapacitation occurs when you are unable to fully understand the terms of the document that you are signing due to a temporary or permanent mental issue. Mental incapacitation centers around the issue of consent. An individual who is mentally incapacitated cannot consent because they are unable to process decisions. When someone becomes mentally incapacitated, the court can appoint individuals to make decisions for the mentally incapacitated person, such as a health care guardian or financial conservator. In probate, mental incapacity has a specific definition with regards to an individual’s ability to draft a will or otherwise conduct any estate planning. According to the Massachusetts Supreme Judicial Court in Goddard v. Dupree et al., 322 Mass. 247:

[T]estamentary capacity requires the ability on the part of the testator to understand and carry in mind, in a general way, the nature and situation of his property and his relations to those persons who would naturally have some claim to his remembrance; freedom from delusion which is the effect of disease or weakness and which might influence the disposition of his property; and ability at the time of execution of an alleged will to comprehend the nature of the act of making a will.

Putting this in layman’s terms, a testator must have the mental capacity to understand the consequences of drafting a will and how he or she would like to distribute assets in a will. Unfortunately, mental capacity is a grey area in Massachusetts. While an individual who is in a coma cannot under any circumstances contemplate the nature of a will, an individual with a mental illness like bipolar disorder may. By only acknowledging wills of those who are mentally capable of drafting them, the Massachusetts probate courts seek to reduce the number of situations in which individuals use coercion or forgery to create wills for mentally incapacitated testators. If you suspect that someone coerced a loved one to draft a will while your loved one was mentally incapacitated, you need to consult with a qualified probate attorney immediately on how to prove mental incapacity and coercion in court. If you are in the process of drafting a will, it is important that you draft the will with the aid of a skilled probate attorney. The probate attorney can ensure that your will is valid and conforms with Massachusetts law. If you suffer from a disease such as dementia or mental illness that may raise mental capacity concerns, your attorney can assist you with creating a record of mental capacity should any disputes arise after your death. In addition, your attorney can help you create a comprehensive estate plan should you become incapacitated in the future. These additional documents include:

• Health Care Proxy: An agent appointed by you who can make treatment and medication decisions, pay medical bills, and obtain your records.

• Durable Power of Attorney: An agent appointed by you who can make financial decisions while you are mentally incapacitated.

• Advance Medical Directives: Instructions included in a living will that dictate what treatments are or are not permitted.

• Trusts: You can place some of your assets in a trust; develop a plan for how those funds are to be disbursed, to whom, and when; and appoint an individual to administer the trust.

If you or a loved one is or may shortly become mentally incapacitated, you need to consult with a probate attorney immediately on estate planning to avoid any issues regarding medical treatment, financial status or assets. The attorneys at The Sullivan Firm, P.C. have dedicated their careers to helping individuals preserve, protect and provide for their families’ futures. Call The Sullivan Firm, P.C. today at (978) 325-2721 to schedule a free exploratory meeting.

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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How Long Does the Probate Process Take?

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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.

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.

Even though a will cannot be found, it can still be probated, although it is not a simple process. Under the Massachusetts Uniform Probate Code (MUPC), the proponent, or the party asking a court to probate a will, has the burden of proving the contents of the will. According to the MUPC, a formal petition for probate must be accompanied by the original, signed will or by an authenticated copy if the original will is not already on file in the courthouse. If the petition is not accompanied by the will or authenticated copy probated in another jurisdiction, then the petition must include the language of the will along with a statement that the will is “lost, destroyed, or otherwise unavailable.”

Trying to recreate the contents of a lost document is obviously fraught with problems such as inaccurate recitation of the will contents, fraud, or misrepresentation. Unless all the potential heirs agreed that the petition accurately recited the will contents, one or more of the potential heirs likely will file objections to the petition.

The potential heirs who object to the petition for the probate of a lost will have the upper hand under Massachusetts law. The law presumes that a lost will has been destroyed by the deceased with the intent of revoking it. The presumption may be rebutted by evidence to the contrary. The proponent of the lost will must prove by a preponderance of the evidence, i.e., satisfying the burden that the alleged facts are more likely than not, that the deceased had a will or access to the will and did not destroy the will with the intent of revoking it.

Whether the evidence offered by the proponent of the lost will is sufficient is dependent on the specific and unique facts of each case. Factors that a court can consider when determining if it is likely that the deceased did not intend to destroy or revoke the will are:

·       Whether there is evidence that the lost will was executed with the formalities required to execute a will;

·       Whether a copy of the original will was found;

·       The competency of the decedent and the timeframe between when the will was originally signed and the date of death.

As with any lawsuit, the judge will also consider the credibility of the witnesses when they testify to determine truthfulness, bias, and motivation to lie. If, based upon the court’s analysis of all of the facts, the proponent fails to rebut the presumption that the decedent destroyed the lost will, then the decedent’s estate will pass according to Massachusetts’ intestate succession laws.

The testator can keep the will in a bank safety deposit box or in a fireproof safe in the home. A recommended practice is to notify trusted family members where the will is being kept for safe keeping and making certain your family has access to that location in the event of the death of the testator.

Troy Sullivan, Massachusetts Estate Planning Attorney

Contact a Trusted Estate Planning Attorney for Further Information

A trusted estate planning attorney from The Sullivan Firm, P.C. can help you avoid the stress that is placed on your loved ones when a will is lost. Call Attorney Troy Sullivan today at (978) 325-2721.