Preplanning Funerals and Your Estate Plan

If you have recently consulted with a funeral home, most likely either you or your aging loved ones are making plans for final arrangements ahead of time, or you are in the middle of a recent loss.  In either case, this is not easy.  One of the things that can be difficult is realizing how many questions you have about the state of your loved one's affairs, your own planning, or both.

How to Handle or Avoid Probate Court

If you are doing advance planning for your loved ones, one question you may have is how to minimize or avoid the need to get probate court approval for the distribution and management of their assets when they pass.  If you are facing the loss of a loved one, your questions may be more about what it is you actually have to do now.

Here are some things you should know:

• A will by itself does not get you out of probate court.  It may simplify the process, but a court will still need to approve the appointment of a personal representative, and the ultimate distribution of assets.
  

• A durable power of attorney dies with the person who gave it.  What this means is that even though you be the power of attorney for a parent, it is no longer of any legal effect once they pass.  Any decisions you want to make on behalf of their estate will require the appointment of you or someone else as a personal representative (again, probate court).
  

• Anything put into a trust before death will pass to the beneficiaries without court involvement.
  
• Even if your loved ones are elderly, and possibly even suffering cognitive impairment, they very well could still be legally competent to adjust their estate plans to help avoid or minimize probate.
  
• If you have to go through probate, we can help you assess the situation and come up with a plan that minimizes the expense and gets you where you need to be as quickly as possible.
  

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Understanding the Massachusetts Estate Tax

Many people are not aware that anyone with a taxable estate worth $1 million or more will owe estate taxes in Massachusetts, even though the threshold is much higher for federal taxes.  The "taxable estate" includes the home, retirement funds, and even life insurance.  This means many families are surprised by an estate tax liability when a loved one passes.

If you are planning for loved ones who are still alive, there may be things they can still do to minimize or avoid that tax.  Even if it can't be avoided, it is worth having a conversation about how the estate will cover that cost without needing to liquidate assets that you don't want liquidated.

Is It Too Late to Change an Estate Plan?

If you are planning for elderly parents who are still alive, there may still be time for them to make adjustments to their plan to make things easier for the whole family when they pass.  The legal standard for being competent to make or change estate planning documents is lower than you might think- even if they are unable to manage their affairs or have some level of cognitive impairment, they may meet the legal standard.

Generally, it is not a good idea to make major substantive changes if competency is in question.  However, doing things like placing assets into a trust to avoid probate or estate taxes might still be possible.

Thinking About Your Own Estate Plan

Whether you are preplanning funeral arrangements with your loved ones or making arrangements after a loved one has passed, this is often a good time to think about your own estate plan.

Your loved ones may be paying ahead for final arrangements in order to spend down their assets to qualify for assistance with long term care.  There are other ways to do this, if you make your plans five years or more before you need assistance.

As you go through this process, you may see things your parents did not do in their planning that you wish they had.  This is a good time to speak with a lawyer about how you can make things easier for your heirs when the time comes.

Finally, in many cases the death of a parent changes your own asset picture.  You may inherit assets that take you above the estate tax threshold, for example, which can be addressed through proper planning.

How We Can Help

Jenna Ordway

Rated by Super Lawyers


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This is no doubt a difficult time for you and your family.  But we are here to help, whatever your needs. We have a simple process for getting you from wherever you are now to executed and final documents.  It starts with an initial consultation, which is absolutely free.  You can use the button below to schedule a free information call, or simply give us a call at 781-784-2322.

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