Whether you need a will, revocable trust, irrevocable trust, testamentary trust, life insurance trust, or supplemental needs trust depends on your particular situation and your goals. At OneLaw, we will discuss what is important to you and determine the best way to accomplish your goals, whether they be protecting your assets, providing for your minor children after your death, ensuring that your personal property and real estate go to your loved ones, minimizing estate taxes upon your death, or avoiding an expensive probate process.
Drafting a will is one of the most basic things a person can do to ensure that his or her estate goes where he or she wants it to go. It also designates who will administer the will, and courts give priority to person(s) named in the will.
Everyone should have a will, and if you have minor children, it is even more critical that you have one, as it provides for who will take care of them if you and your spouse die.
Many young couples delay creating a will because they cannot decide on a guardian. No one will be able to care for your children as well as you can, but it is important that if something were to happen, you get a say in who does care for them.
If you are retirement age or older and married, a will with a testamentary trust can help protect assets for Medicaid purposes for a spouse. It is important to create an estate plan well before either spouse may need nursing home care, or in the case of taxable estates, before death, as there are ways to protect assets but only if planning is completed years before needing to enter a nursing home.
If a person dies without a will (intestate), that person’s estate will pass according to a statutory scheme. This disposition may be inconsistent with a person’s wishes, but with a will you can customize your provisions so that what you have goes to exactly whom you want it to, and in quantities that you determine, not distant relatives or the state.
The intestacy laws of your state govern where your assets go when you die without a will, so you must consult an attorney to know for your specific circumstances. The answer usually depends on whether you have any children and/or parents who are living. Regardless of your situation, drafting a will ensures that you decide who gets your assets.
There are several reasons to have a trust, but not everyone needs a trust. Revocable (living) trusts take property out of the probate estate, allowing for a smoother transition upon your death. Because they are not recorded, trusts also take your property out of the public records, giving you some privacy over your estate. Revocable trusts also govern how your children or other beneficiaries will receive their inheritances, according to terms that you choose.
Irrevocable trusts protect your assets by taking them out of your estate completely, which helps eliminate or lower estate taxes and enables one to qualify for government benefits. They also protect assets from creditors. Although you do cede control of your assets, you can still receive income from an irrevocable trust. Irrevocable life insurance trusts (ILITs) keep the proceeds of life insurance death benefits out of the estate, thus lowering or eliminating estate taxes.
Testamentary trusts are created within the will and are good planning tools for older couples who may require nursing home care at some point in the future. The assets from the will when one spouse dies create a testamentary trust for the survivor spouse that is out of that survivor spouse’s estate and control, making them inaccessible and enabling the spouse to qualify for government benefits.
Supplemental (or special needs) trusts allow the beneficiary to receive money from the trust in addition to his or her government benefits. Either the beneficiary or a third party (such as a parent) may establish them.
A power of attorney allows someone to take care of your legal and financial affairs and access accounts while you are alive but unable to do so for any reason. A durable power of attorney is one that lasts past your incapacity and ability to revoke it. In that case, your agent (called an “attorney in fact”) can still act on your behalf, and depending on how the durable power of attorney is drafted, will not need proof of your incapacity to do so. Without one, if something were to happen to you, your loved one would have to obtain a statement from one or more physicians declaring your incompetence and then petition the court to become your guardian or conservator. You can revoke a durable power of attorney at any time if you are competent. A general power of attorney is good only while you still have capacity.
Yes, you need a durable power of attorney even if you have a will. The durable power of attorney is in effect while you are living and your will does not go into effect until after your passing.
A health care proxy allows your agent to make medical decisions on your behalf whenever you become unable to do so yourself. HIPAA authorizations are also often done. Just because you execute a health care proxy now and name an agent, you are still the one to make your own medical decisions for as long as you are able. You can revoke the health care proxy at any time if you are competent.
A living will (also called an advance directive) specifies your wishes about life-sustaining treatment, psychiatric administration, and other matters should you become incapacitated or terminally ill. This is a legal document in some states (like New Hampshire), but unenforceable in others (including Massachusetts).
Both a living will and a health care proxy can memorialize your end-of-life wishes, but your agent has the final say.
You must consult the attorney who drafted your will or have another attorney review the will to determine whether a new will is necessary. Attorneys can draft wills anticipating that couples may have more children, and those children can be included in the class of beneficiaries. In that case, you do not need to create a new will. Many parents of young children create trusts, however, in the event that something happens to both parents. If you are creating a new trust funded with the assets of the estate, you will need a new will to reflect that.
In Massachusetts, estate taxes will be owed for any estate that exceeds $1 million. While the taxes will be assessed on the entire value of the estate, the percentage at which it is taxed is based on the amount over the million-dollar threshold. Effective estate planning can help lower the amount of taxes owed at your death.
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