Estate Planning Frequently Asked Questions

Not Sure Where to Start With Your Estate Plan?
There are many things that can feel overwhelming about getting started on an estate plan.  One of these is not knowing even what questions to ask.  Below are some frequently asked questions and answers about wills and trusts, provisions for children, asset protection and other estate planning topics.  You can also check out some estate planning resources here.
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What Happens if I Die Without a Will or an Estate Plan?
​If you do not make an estate plan, and if you die without a will, the laws of the Commonwealth of Massachusetts will create an estate plan for you, which may not be what you want or your family needs.  For example, if you are married, your spouse will get 100% of your assets and you will have to trust that they will take care of your children, even if they re-marry and even if you have children from another relationship or marriage.  You will also not have the opportunity to protect assets from taxes, or to ensure that some assets pass outside of the court process known as probate. Our estate planning lawyers generally recommend using a combination of wills and trusts in your estate planning to accomplish your goals. Learn more here about how Massachusetts law will distribute your assets of you do not have a will.  
What is Probate, How Much Does it Cost, and How Can I Avoid it?
The court that oversees the distribution of your estate is the Probate Court in Massachusetts, and the process is called probating your estate (because it goes through that court).  Certain assets will pass automatically whether you have a will or not:
  • Life insurance proceeds (will distribute immediately to whoever you have named as beneficiaries, usually your surviving spouse and/or your children);
  • Jointly owned real estate (in most circumstances title will pass automatically to the other joint owner, especially if it is your spouse);
  • Jointly held bank accounts (will pass automatically to other joint owner or owners);
  • Brokerage accounts and retirement savings (if you have named a beneficiary in your account these will pass automatically).
Everything else will go through the probate process unless you have already palced the assets into trust.

If you do not have a will, your family will have to do everything through the Probate Court: get someone appointed as your personal representative, nominate a guardian if you have minor children, inventory all assets, identify the family members who might inherit under the Massachusetts intestacy laws, and get court approval for distribution.  If you have a will, and there are any assets that do not pass automatically or are not already in trust, your family will still have to go through Probate Court, but because you have made the important decisions ahead of time the process is much simpler and less expensive.

The cost of probate will depend on the size and complexity of your estate- in general, experts estimate the probate costs can eat up 3% to 8% of the assets available leave to your loved ones.
Can I Write My Own Will?
In some states, a will written entirely by hand and signed by you might be recognized as valid (often known as a holographic will).  This is not the case in Massachusetts, and all wills must meet the execution (signing) and witness requirements of state law.  If you make a will that is not properly signed and executed (signed by you in the presence of two witnesses who are legally competent and not beneficiaries under your will), the will won't be recognized and the courts will treat your estate as if you had died without a will.  The other thing you should remember is that if you make a mistake in the technicalities, by the time that comes to light it will be too late for you to fix it.
How Do I Change My Will?
If you have already made a will and an estate plan, but something changes in your life, you may not have to start all over again- many changes can be made to an existing will by a document called a codicil.  The codicil, like your original will, must be signed by you in the presence of two legally competent, disinterested witnesses (i.e., witnesses who are not beneficiaries under your will or codicil).  What that means is that all of the provisions of your original will that you do not want to change can remain intact, and you will create and sign a separate document making the specific change.  Common changes in a codicil are updates to the people named as personal representative or guardian, and changes to specific bequests.  If you experience a major life change like a divorce, death of a spouse or remarriage, you will probably want to revise your estate planning documents in their entirety rather than trying to make the needed changes through a codicil.  An estate planning attorney can help you understand whether this is an option, or whether under your circumstances it is more appropriate to draft a new will and destroy the old one.
How Will My Estate be Taxed?
Your estate may be subject to the federal estate tax and the Massachusetts estate tax.  In addition, if you own real estate (or tangible personal property) in another state or country there may be an additional estate tax due there.  The federal taxes currently do not apply unless you have $11.2 million or more in your estate, but Massachusetts applies a tax if you have $1 million.  It is important to know that everything counts toward this number, even if it doesn't pass through the probate process, such as life insurance proceeds, retirement accounts, and real estate you own jointly with a spouse.  Most people are closer to this number than they think- you may have $1 million in assets even if you do not feel like you have any extra cash or income.  Our estate planning lawyers can help you structure your estate to minimize or avoid this tax.
Who Will Raise My Children?
If you die leaving minor children, the other parent ordinarily will raise and support them. If the other parent is not living, or if something happens to both of you at the same time, your children will need a guardian.  If you have a will, you can appoint a guardian, and an alternate guardian in case your first choice is unavailable.  If you do not have a will, the court will appoint a guardian, which will prolong the process for your family and can cause family disputes.  Additionally, if you do not have the proper documents in place, the person appointed as guardian will have to take the extra step of obtaining a conservatorship or creating some other vehicle to hold any assets your children inherit, because minor children cannot directly hold assets under the law.  With a good estate plan, and a trust for your children in place, the guardian should not experience financial strain in raising your children. 
Can I Choose Who Gets Assets Without a Will?
Proceeds from life insurance policies and retirement benefits will be distributed to whatever individuals you have designated as beneficiaries (you can change your beneficiaries usually at any time, without the assistance of a lawyer). In addition, property held in certain joint tenancies with a right of survivorship (e.g. joint bank or brokerage accounts with a right of survivorship, or real estate you own jointly with your spouse) will pass automatically.  Remember, however, these assets still count in determining whether you will owe estate tax.

Another strategy people use is annual family gifts: there is a set amount you can give away each year to an individual without incurring gift tax.  This ensures that those people receive the money or assets, but also has the effect of taking them out of your estate for estate tax purposes.
​How Do I Protect My Assets from the Costs of Long Term Care or a Nursing Home?
With some limited exceptions, you will be required to "spend down" your assets before receiving any government assistance with nursing home costs.  This can be financially devastating, and eat away entire legacies that people have spent their lifetimes building.  There are steps you can take to preserve assets, but you have to do it long before you or your spouse needs nursing home care.  Currently, Medicaid will consider anything transferred within the prior five years to be assets still available to you, and it is always possible the laws could be changed to make that a longer period of time.  You also need to know that in order to shelter assets, they need to be in an irrevocable trust, meaning you can't change your mind and take the assets back. 

One thing this means is that Medicaid planning is not for everyone, or for any stage of life.  If your children are still young, or you are still facing college tuition or other significant expenses for them or for yourselves, you probably are not in a position where you should be placing assets out of your reach permanently.  Our estate planning lawyers can help you figure out the right balance between protecting assets and maintaining your own financial security.
How Do I Plan for My Own Disability?
Some of the most important estate planning documents protect your interests while you are still alive.  You can prepare a health care proxy to designate the person authorized to make medical decisions for you if you are incapacitated, and a durable power of attorney to designate the person authorized to take care of your legal and financial affairs if you are incapacitated.  
How Do I Plan for a Child With Special Needs?
There are many unique challenges to parenting a child with special needs, and estate planning is no exception.  You can work with your estate planning lawyer to create a combination of wills and trusts, including a special needs trust for your child, both to ensure that he or she has financial support, but also to preserve eligibility for important government benefits.
How Often Should I Review My Estate Plan?
As a general rule, we suggest that you review your estate plan every five years, or any time there has been a substantial change in your family or financial situation (for example, the birth of a child, divorce or remarriage, death of a spouse, receipt of a substantial inheritance).  Each of these things may change what you need to do with your estate planning, and the relevant laws do change from time to time. 

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