The Elements of a Comprehensive Estate Plan

Regardless whether you are married, cohabiting or living with a partner, or not currently involved in a relationship, all adults need and should have a comprehensive estate plan that not only provides for the distribution of their assets after death, but also protects them and their family and loved ones in the event of an unforeseen medical event prior to death.  The following sections describe the key instruments that are used in Massachusetts.

A Will

A will is the instrument that specifies how a person’s assets are to be distributed upon death.  A will does not control the distribution of the following assets:

• Assets that are held in joint tenancy with right of survivorship.  The other joint tenant will succeed by operation of law to the interests of the other joint tenant upon the other joint tenant’s death.

• “Pay on death” bank and similar accounts.  The terms of these accounts provide that upon the account holder’s death, a named person or entity will automatically succeed the other account holder’s assts.

• Assets that are held in a trust.  Assets that are held in a trust (such as revocable living trust) are considered to be held in a separate entity, and thus not owned by the person who created the trust.  Assets held in a trust are thus governed by the terms and conditions of the trust.

• Life Insurance policies.  Life insurance policies are contracts and “death benefits” are paid to the person or persons specified as the “beneficiary” of the policy.  When a couple divorces or separates, it’s critically important to make sure that any beneficiaries designated in a life insurance policy are changed; otherwise, an unintended beneficiary (such as a former spouse) may receive the insurance proceeds.

Trusts, Including Revocable Living Trusts and Irrevocable Living Trusts

Trusts can be helpful for a number of purposes, including:

• Controlling how certain assets will be managed both before and after death, including in matters such as second marriages and ­“living together” relationships
• Ensuring the minor children will not receive a lump sum inheritance that might be recklessly spent
• Helping to reduce estate taxes
• Protecting valuable governmental benefits for children or adults with special needs
• Medicaid planning

When we understand your circumstances, we can advise whether a trust may be helpful for you and what types of trust(s) might be the most beneficial.

Massachusetts Health Care Proxies (Advance Directives)

Health Care Proxies (also called advance directives) are important if you sustain a terminal medical event and are unable to communicate your wishes for matters such as sustenance and continued medical treatment.

With a Health Care Proxy, physicians and healthcare professionals must follow your wishes concerning treatment.  Without such a document, physicians and healthcare providers may be required to provide the medical care against your wishes.  Importantly, they may also turn to your nearest family member (which may not be your current partner, if you are not married) for direction concerning what care or treatment should be given.

Durable Powers of Attorney

Durable powers of attorney are used in situations in which a person sustains a serious medical event and cannot communicate their wishes.  For instance, a person may sustain a severe traumatic brain injury and be unable to speak for themselves and effectively communicate their own decisions.

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In such circumstances, it is important that the person have a Durable Power of Attorney, which grants to a spouse or trusted person the ability to take actions on behalf of the person granting the power of attorney (the person who has become disabled).  Such powers of attorney generally should cover the following matters:

• The right to make financial decisions for the disabled person. This will include the right to purchase, sell, and otherwise manage real and personal property, as well as bank accounts, financial instruments, and any other assets owned by the disabled person.

• The right to make lifestyle decision for the disabled person. This will include the right to make decisions about the living arrangements and similar matters for the disabled person, including where the person will live, who will take care of them, and other matters.

The same person can be appointed for all three of these roles, or different people may be appointed.

It is critical to know that in Massachusetts without such powers of attorney in a situation in which the disabled person is not married, the court may be required to appoint a Guardian and/or Conservator for the disabled person.  This process can be costly, not only in terms of the legal fees for appointment, but also for the ongoing monitoring and reporting to the court (particularly with respect to the control and expenditure of financial assets) that is required.

Additionally, such appointments may become contested by different family members who may wish to serve in such roles.  As a result, instead of the disabled person’s assets being used for their care, much of their assets may instead be used for legal fights and administrative fees.

Protect Your Interests, Your Assets, and Your Family

When we learn about your situation and your wishes, we can craft a comprehensive estate plan that not only will protect your interests and family after death, but that will also afford the proper protection prior to death in the event of an unforeseen medical event.