Estate Planning

A will — also called a last will and testament — is a document that states your final wishes for who should inherit your assets. This includes everything from your home and property to your investments, jewelry, or even your stamp collection.

If you have children, you can also name guardians in your will. These are the people who would care for your children if you pass away before they turn 18. Without a guardianship nomination, your family may end up fighting in probate court over who takes responsibility for your minor children. Worse, someone you would not have chosen could become their guardian.

If you die without a will, the law calls this dying “intestate.” When this happens, the state determines what becomes of your assets, often dividing them in ways you wouldn’t choose if you had the option. An experienced attorney can help ensure your will is properly drafted and executed as part of your estate plan.

A Durable Power of Attorney is a legal document that lets a trusted friend or relative make financial and business decisions for you (the “Principal”) if you become unable to manage your own affairs. It takes effect the moment you sign it. This document lets your appointed Agent (the “Power of Attorney”) handle important matters such as paying bills, managing investments, accessing online accounts, and running a business, if you have one.

Attorneys call the Durable Power of Attorney described above “non-springing.” A second type exists too, called a “Springing Power of Attorney.” This type only “springs” into action after a specific event occurs. Typically, that event happens when two doctors agree that you are incapacitated and can no longer make decisions for yourself. However, determining incapacitation can be tricky. Doctors sometimes disagree, and people can have good days and bad days, or troublesome parts of the day, such as the “sundowning” that sometimes occurs with people who have Alzheimer’s.

Most of our clients choose the Durable Power of Attorney to avoid these incapacitation-related issues. With a Durable Power of Attorney, you continue to manage your own affairs until you’re unable to, at which point your Agent steps in and takes over. You can also have your Agent step in as needed, such as when you’re traveling and an issue at home needs tending to.

A Health Care Proxy is a legal document that lets you name someone you trust, your “Health Care Agent,” to make important health and medical decisions for you if you become incapacitated. You can appoint any individual over 18 as your health care agent. You can name more than one agent, such as your three children, and you can also name alternate or successor agents. Successor agents step in if your primary Health Care Agent cannot act on your behalf when the need arises. The only exception: you cannot appoint a health care facility, administrator, operator, or employee as your Agent, unless they are related to you.

Once your Health Care Proxy is in place, talk with your health care agent about your health and medical treatment preferences — this conversation matters. Your Health Care Agent will make decisions for you based on the wishes you’ve relayed to them, along with their understanding of your religious and moral beliefs. Your Agent should know what treatments you would and would not want to receive.

What are these treatments?

This includes your views on life-sustaining treatments. Make sure you understand the long list of treatments that count as “life-sustaining.” For example, if you do not want a machine to breathe for you, do you still want hydration, such as water to drink or IV fluids? These decisions aren’t always easy, but they’re worth the time it takes to reflect on your end-of-life wishes.

While you’re able to communicate your wishes, you still call all the shots. You can override anything in your Health Care Proxy or Living Will if you change your mind.

Once you write and execute your Health Care Proxy, provide copies to your Health Care Agent, your primary physician, and others involved in your health care decisions. Sign your Health Care Proxy in the presence of a notary public and two witnesses, other than your Health Care Agent and alternate agent.

Alongside your Health Care Proxy, you can also create a Living Will. A Living Will isn’t technically binding in Massachusetts, but it describes the medical care you wish to receive if you become unable to speak or otherwise become incapacitated. It can capture the discussions you’ve had with your Health Care Agent about your wishes, giving your Agent a helpful reference during what can be a particularly stressful time.

HIPAA Releases are also part of the core estate planning documents. Congress created HIPAA, the Health Insurance Portability and Accountability Act, in 1996 to protect the privacy of your health information. The act prohibits health care providers from releasing your medical information to anyone, unless you sign a medical release form allowing it.

Your signed HIPAA medical release forms list everyone you’d like to have access to your medical information. These forms become especially important if you become unexpectedly incapacitated and need immediate help from family members or friends.

Your Final Disposition Instructions are also part of your core estate planning documents. This document names the person or people you want to carry out your wishes regarding:

• Your remains. Do you wish to be buried or cremated? If cremated, how do you want your ashes kept or dispersed? Are you leaving your body to science?
• Any funeral or burial arrangements already in place, such as an open or closed casket for a wake, or a burial plot in your town’s cemetery or next to your parents.
• The type of services you want, if any. Do you want your favorite songs played? Donations to a local charity in lieu of flowers? A celebration of life instead of, or in addition to, a formal service?

To be valid, you must sign your Final Disposition Instructions in the presence of a notary public and two witnesses. You can revoke this document anytime, by destroying it, revoking it in writing, or creating and executing a new set of instructions.

If the person you choose agrees to this role, they generally follow through on your instructions when the time comes.

A Revocable Trust is a trust you create during your lifetime. It gives the grantor, the person creating the trust, the power and flexibility to control their assets. Because you create this type of trust during your lifetime, you can also serve as its initial trustee. The trustee administers the trust based on the grantor’s instructions, including who should receive the assets.

Serving as both grantor and trustee offers a key benefit: you maintain complete control over your assets during your lifetime. You can freely transfer assets in and out of the trust, and you can change or revoke the trust at any time. Creating a trust offers many benefits, but it also has some downsides. For a Revocable Trust to function as designed, often to avoid probate, you need to transfer any real estate titled in your name into the trust, so the trust owns the property. Beyond real estate, you should also transfer bank accounts, stocks and bonds, and business interests into the trust.

If you don’t transfer property and other assets into the trust during your lifetime, they will still need to go through probate. Setting up a trust can also be costly, depending on your unique needs. However, if you pass with only a will, your Personal Representative will likely need a probate attorney to help with the probate process, which can also be costly. Given these considerations, it might make sense to pay a bit more now for an estate plan tailored to your needs, rather than leaving your Personal Representative to hire a probate attorney later.

Do I Need a Will and a Trust?

Regardless of whether you have a trust, you should always have a will to make sure your estate goes to the people you choose. If you pass without a will, the state follows a rigid set of predetermined rules about who inherits your estate, rules that might not match who you had hoped would inherit.

If you decide to create a Revocable Trust, we will also draft a different type of will, commonly called a pour-over will. The pour-over will works hand-in-hand with your trust. Any remaining assets in your estate that the trust did not own at the time of your passing “pour over” into the trust. A pour-over will still needs to go through probate, but the process is less complex than probate without a trust. Because avoiding probate is one of the primary goals of a Revocable Trust, you must transfer your property into the trust during your lifetime.

The main difference between a Revocable and an Irrevocable Trust comes down to control over your assets during your lifetime. With a Revocable Trust, the grantor has complete control of their assets and can revoke the trust entirely if they choose. An Irrevocable Trust, on the other hand, does not let the grantor revoke it or transfer assets back out. Instead, the trustee controls and distributes the trust estate according to the trust’s instructions.

Despite this loss of control, Irrevocable Trusts benefit people who are comfortable giving up control over their assets, especially those who need to plan for long-term care, such as MassHealth. Their rigidity also has an upside: Irrevocable Trusts are more likely to keep creditors from reaching trust assets.

A Nominee/Realty Trust, sometimes simply called a Realty Trust, is a trust structure unique to Massachusetts that is used almost exclusively to hold title to real estate. Unlike a Revocable or Irrevocable Trust, a Nominee Trust is not designed to manage or protect assets on its own — it functions more as a holding vehicle. The trustee holds legal title to the property on paper, but the beneficiaries, who are named in a separate, unrecorded schedule of beneficiaries, retain full control and can direct the trusteeu2019s actions or terminate the arrangement at any time.

People typically use a Nominee/Realty Trust for privacy and convenience. Because only the trusteeu2019s name appears in the Registry of Deeds, the beneficiariesu2019 identities stay off the public record, and ownership interests can be transferred among family members or business partners without a new deed. However, because beneficiaries retain control of the property, a Nominee/Realty Trust offers little to no protection from creditors on its own. For that reason, it is often paired with other estate planning tools, such as a Revocable or Irrevocable Trust, as part of a complete plan.