Estate Planning Law FAQs
Do I Need a Will and Other Estate Planning?
In order for a client to have full control over his/her affairs while alive but incapacitated or upon death, I always advocate the minimum of a durable power of attorney (to allow someone to manage your affairs while you are alive, but are incapacitated), a health care proxy/living will (to allow someone to make health decisions for you, even terminating life support, when you cannot, and expressing your wishes regarding life support), and a will. Hospitals will now require a health care proxy upon admission, and will have a form for you if you do not have one. Better to do it ahead of time in the event you cannot upon admission. Even if you are a young couple and own everything jointly, a will is necessary to pass property in case of joint death and more importantly, as a tool to name your choice of a guardian for surviving minor children and to create a trust to manage the inheritances of minor children.
Using trusts, tax avoidance planning, Medicaid planning and how extensive and involved estate planning must be depends on your individual situation and goals. But ignoring it leaves you subject to the whims and motives of others or of impersonal state laws.
How Does the Probate Process Work in Massachusetts?
“Probate” or “probating an estate” is the process by which title to real and personal property held by an individual in their sole name is legally passed to other persons upon their death. It is a process managed through the Probate & Family Court.
Probate only needs to occur if a deceased individual owned property solely in his/her own name, and it occurs whether there is a will or not. There are certain items of property that are deemed “non-probate property” or “will substitutes”, meaning they have built-in ownership-transferring provisions that the law will recognize without a formal court process being needed. These are: 1) Joint ownership property – any property held in joint ownership with a right of survivorship. This property automatically passes to the surviving joint owner(s) upon death. When the surviving joint owner dies, the property is a probate property of that owner. Property held as a tenant-in-common must be probated. 2) Beneficiary-type assets – any property, commonly life insurance, 401Ks, IRAs and the like, that has a named beneficiary or beneficiaries. This property automatically passes to the surviving beneficiaries upon death. If these types of assets have no named beneficiary, or the beneficiaries are deceased as well, then these become probate property.
Persons will die either “testate” (having a will) or “intestate” (not having a will). If there is a will, once that will is approved, title to the various properties owned by the deceased will pass according to the will’s terms. If there is no will, state law determines how and to whom property will pass to one’s “heirs at law”.
The probate process requires filing of papers, notice to interested parties, and opportunities to challenge a will, a process that is very difficult to succeed at.