Wills and Estates

The following is not intended as legal advice or legal representation. Due to the constantly changing nature of the law, we cannot assure the accuracy of the information given. There is no substitute for an actual consultation with an experienced attorney. Contact Attorney Jay S. Rudolph for a Free Consultation

What is estate planning?
What is in a basic estate plan?
Do I need an estate plan?
What are the benefits of an estate plan?
Why should I use a lawyer when I could get forms online or buy them at an office supply store?
What happens if I die without a will?

What is estate planning?
Estate planning is the process where an individual or family arranges the transfer and protection of their assets in preparation of death or incapacity. A proper plan also addresses health care, guardianship of minor children and business planning. Two major goals of an estate plan is to preserve the maximum amount of wealth possible for the intended beneficiaries and to provide ease and flexibility in the handling one's affairs prior to and after death or incapacity. Estate planning also is effective for implementing important wishes and desires, such as end of life decisions and charitable donations.

Estate planning involves the services of not just your attorney, but can involve the services of other professionals, including your accountant, financial planner, life insurance advisor, banker and mortgage broker.

What is in a basic estate plan?
Many factors go into determining each client's needs for their estate plan. Typically, a basic plan will include a will, durable power of attorney, health care proxy, HIPAA release form and advance directive which is sometimes called a living will. Depending on one's assets, family and estate tax situation, the plan might also include revocable or irrevocable trusts, emergency guardianship designations, homestead declaration, life insurance trusts or pet trusts. Estate planning not only involves the creation of the proper documents, but also involves how one holds title to their assets such as real estate and financial accounts. The appropriate beneficiary designations on your retirement accounts and your financial products, such as life insurance, are crucial to the effective implementation of an estate plan.

Do I need an estate plan?
Yes. It does not matter if you are older or young or if you are married or single. It does not matter whether you are a parent or you have no children. It makes sense whether you are wealthy or not to invest in an estate plan. There is a lot to be gained by you and the ones you love through estate planning. There is even more that can be lost by failing to take the time to make a plan. Proper estate planning will avoid the turmoil and wasted assets of an unplanned estate. Remove the uncertainties and give yourself and your loved ones the sense of security that is deserved.

What are the benefits of an estate plan?
Estate planning provides more than just an orderly distribution of property to your loved ones, other beneficiaries and charitable organizations. A proper plan determines who will be the guardian of your minor children. The plan will also provides a mechanism for a trusted individual to handle your financial and medical affairs should you become incapacitated.

Asset protection and probate avoidance are also accomplished through an effective estate plan. The plan should take into consideration succession planning for family or closely held businesses. For larger estates, tax shelter planning is crucial to insure that your beneficiaries do not lose a large portion of the estates assets to the government. The plan can even set aside assets to care for a family member with special needs.

An effective estate plan can even provide for the care of your pets not only when you pass away, but also provide a means to alert medical personnel that you have pets should you be incapacitated. A significant number of animals are euthanized every year because they are overlooked during a crisis or tragedy.

Why should I use a lawyer when I could get forms online or buy them at an office supply store?
Estate planning even in the simplest of situations requires a significant amount of background information. A lawyer will ask probing questions to assess the client's overall goals and needs. The lawyer will seek to determine not only the property and asset situation, but also he or she will seek out any unusual circumstances you might have. Lawyers are trained to look not only look for red flags, but also to provide guidance in making the difficult yet important decisions needed even for the most basic plan. Too often what seems straightforward contains some issues that can only be resolved with experience and training.

Use of "off the shelf" products to replace the counsel of an experienced attorney is fraught with peril. Understanding the intricacies of joint property and beneficiary designation on retirement assets, such as IRAs and 401(k), can be confusing without someone to take the time and effort to make sure you understand the implications of your decisions. Also, the estate plan does not operate in a vacuum and must continually change as your life, your needs and the law changes.

Today we rely on the internet for a wealth of information and we are truly fortunate to live in such a wonderful age of dynamic communication. However, as powerful a tool as this information can be, it must be used prudently and cannot replace the experience and education of a trusted professional.

What happens if I die without a will?
If you don't plan your estate, the government will do it for you, and maybe not the way you would like. If you do not leave a will and other necessary documents, your estate will be probated according to intestate laws. In Massachusetts, state law defines who will inherit from an estate when there is no valid will.

After paying the debts of the estate, the expenses of last illness, the funeral expenses, and the expenses associated with settling the estate, the remaining property will be distributed according to the types of heir at law:

  • Where There is a Surviving Spouse and Children - The surviving spouse gets one-half of the personal property and one-half of the real property. The children will take the other half of the personal property and real property in equal shares by right of representation. Right of representation is where one or more of the decedent's children has died but has surviving children, then those children (the grandchildren of the decedent) would take their late parent's share.
  • Where there is a Surviving Spouse and No Children - The surviving spouse will take the first $200,000 from the estate plus one-half of the remaining real property and one-half of the remaining personal property. Kindred or the closest relatives will take the remaining property as follows:
    • The Parents, if alive, would take one-half of the remaining real property and one-half of the remaining personal property.
    • If no surviving parents, then brother or sisters would take one-half of the remaining real property and one-half of the remaining personal property with the children of a deceased brother or sister taking by right of representation.
    • If there are no surviving brother and sisters, then the children of the deceased brothers and sisters would take a share equally if the same degree of kindred, other wise by right of representation.
    • If there are no surviving kindred, the surviving spouse takes everything.
  • Where there is No Surviving Spouse and No Children - then the kindred or the closest relatives will take the remaining property as follows:
    • The Parents, if alive, would take one-half of the remaining real property and one-half of the remaining personal property.
    • If no surviving parents, then brother or sisters would take one-half of the remaining real property and one-half of the remaining personal property with the children of a deceased brother or sister taking by right of representation.
    • If there are no surviving brother and sisters, then the children of the deceased brothers and sisters would take a share equally if the same degree of kindred, other wise by right of representation.
    • If there is no surviving kindred, property passes to the Commonwealth of Massachusetts. However, if the decedent was a veteran who died while a member of the Soldiers' Home in Massachusetts or the Soldiers' Home in Holyoke, the property goes to the legacy fund or legacy account of the respective home.