Massachusetts Estate Planning and Elder Law

What are you leaving behind? Thoughts on decluttering as part of planning.

I posted recently about the health effects of clutter on the person living with the clutter.  However, the effects of your clutter live on even after your death.  This blog, Confessions of a Hoarder, has a post describing the process of trying to declutter an estate after a person's death. 

The author describes how her mother, a member of the American Association of University Woman, was often called to help clean out someone's estate that had been left to the AAUW.  They had to prepare the house for sale, and in doing so they had to clear out decades-worth of things that had been collected by these people who had generously left their estate to the charity. 

The author's mother offered these tips to aging people, as well as their adult children as they decide what to keep and what to recycle, give away or throw away:

1. Do not save months and years of magazines, with a thought towards donating them. 
   
   

   Collections of magazines, such as Life or Look, usually have no value as libraries have copies in their archives. National Geographic and The New Yorker, for instance, are available on CD-ROM. Professional journals are usually available on-line these days. Newspapers, magazines, and other periodicals collect moisture, become mildewy and/or moldy and attract other unhealthy pathogens.

2. If you have collectibles that you want people to inherit from you, think about giving the item sooner along with the story behind it. 
   
3. Identify all keys with tags or labels.  Safe deposit box keys should have the bank name, branch and box listed on them.
   
4. Photographs of unidentified people are usually thrown out if donated to a charity, and are much more valuable to family if they have the identity, date and relationship listed on them. 
   
   It only takes a few generations for the identity of people in photographs to be lost, so if you are looking through unlabeled pictures with an older family member, take some time to ask them who the person is, what they were doing, where they were, and who they were related to. Which is more meaningful, a label that says "Joe", or one that says "Uncle Joe, Joe Sr.'s son, age 19, 1942 in front of his store front in San Francisco."  This type of project is a good one for younger generations to help out with, and can lead to more stories and memories being shared and passed down. 
   
5. Identify flowers, plants, trees and houseplants if you know what they are.  These can be useful for prospective buyers, who may want to know how to continue to care for them.
   
6. Broken, rusted or otherwise unusable tools have no value. Consider having them repaired or throwing them away.
   
7. Identify circuit breakers.
   
8. Clearly mark where the main water shut-off valve it.  Houses that are left vacant can sometimes have pipe-freezes and knowing where to shut off the water coming into the house is vital to stopping the flood.  The plumber can usually find it, but the water should be shut off ASAP in the event of a pipe freeze. 

Many times my clients who are dealing with the estate of a loved one have commented to me about things their mother, father, aunt or uncle saved, and have wondered aloud what made them hold on to so many things.  They often resolve that they will not subject their children to the same onerous task of clearing out their house when the time comes. 

Are there things you are saving because you think they might be of value? Do you need help decluttering and clearing out your house? Are you trying to figure out how to approach your parents about their clutter?  You might try starting with some books on the topic,  and then gently offering to help. Remember that people are often very attached to their clutter (and their sentimental items) so you can't just start throwing things away that don't belong to you, but you can start a conversation and offer to help get things in order. 

Probating an Estate in Massachusetts

Probating an estate is the process by which a person's Will is delivered to the Court, allowed by the court, an executor is appointed, and the person's property is distributed according to their Will.  If the person has no Will, the process, called estate administration, is similar and the property is distributed  according to state law. 

People often talk about wanting "to avoid probate." They have an image of estates that remain open for years, with property languishing and heirs in a never ending battle. While this can happen, it is not typical, and can be prevented with proper planning.

Below are some of the general steps involved in probating an estate in Massachusetts:

1. The original will is filed with the probate court, along with a petition, bond and death certificate. A copy of the petition and death certificate are sent to the Office of Medicaid (Medicaid may have a claim against the estate if the person received Medicaid, or MassHealth, while they were alive.
2. Heirs and "interested parties" are notified. Interested parties are those people named in the will, and may be the Attorney General if there are charities named in the Will or if there are no known heirs at law. 
3. The Court will issue a citation, which needs to be published in the newspaper and sent to interested parties. This citation lists the date (called the "return day") by which people can object to the appointment of the executor or administrator.  The citation will contain very specific instructions which must be followed.
4. File a military affidavit with the court if all heirs have not assented.
5. Once the will has been approved and the executor appointed, the executor should begin to gather the assets, review the debts, obtain a tax id number for the estate and open an estate bank account.
6. The executor will need to file an inventory with the court, outlining all of the property that is in the estate.
7. The debts of the estate, such as funeral debts, should be paid, if the estate is solvent. Be aware of Medicaid estate recovery debts.  Creditors have a year to come forward and make claims against the estate. 
8. Determine, perhaps with assistance of an accountant, the best way to start making distributions from the estate. If there is real estate, that may need to be sold and may be subject to Title V (septic tank) regulations, which can be costly if repairs or replacement are needed. 
9. When the estate is closed, an account will need to be filed with the court which lays out what was in the estate when the person died, what came into the estate and what went out of the estate and where it went (usually distributed to heirs or to pay debts.)

There are tax matters that need attention, so you'll want to make sure to have an accountant you can consult with.  And things that can hold up the process are waiting many years to open an estate, heirs who are missing, heirs who object to the appointment of the executor or the provisions of the will or anything else they can think to object to, real estate which has title problems or needs extensive septic work done, abandoned property (especially stocks if the stock certificates have been lost). 

This is not a comprehensive list, but it will give you some idea of what the executor will need to do, and where some of the bottle necks can occur.

If you are responsible for probating someone's estate in Massachusetts and need legal assistance, or you want to talk to someone about structuring your own estate plan to prevent bottlenecks, please call me at 781-749-2284. 

Paperless Records can Leave Heirs in the Dark

This article from the Wall Street Journal, Paperless World Can Leave Heirs in the Dark, outlines the dangers of keeping all your records on your computer.  With online bank accounts becoming more common, there might not be paper statements of your accounts, and if you don't leave a record of them, your heirs might never know you had them.  And it's not just your death that would require them to know what you have, if you become incapacitated and funds are necessary to pay for your care - you'll want your loved ones to know where to find those funds.

The article outlines the information you should have in case of an emergency.  It doesn't need to be posted on your refrigerator, but it should be kept in a safe place in your house, and you should let someone you trust know where to find it.  The information includes:

• details about your assets, what they are, how they are held, where to find the account information.  If you have out-of-state real estate or other assets, be sure to include these.
• the names of your advisers - your financial planner, your accountant, your attorney, the guardian you've chosen for your minor children.
• information about any safe deposit boxes you might have.
• where your estate planning documents are located: your Health Care Proxy, Durable Power of Attorney, Will, Trust and deeds.
• insurance policies: long term care, life and health.

A wonderful way to keep track of these things is with the What If... Workbook, created by Gwen Morgan.  The workbook provides a place for you to document:

   

• financial information
• personal contacts
• location of important documents
• whether you want burial vs. cremation
• how to care for pets
• family medical history
• special gifts you'd like to leave for loved ones
• and even space for you to start documenting the type of legacy (other than financial) that you would like to leave behind for your loved ones. 

To help you get started, and to provide the often necessary accountability to complete the workbook, Gwen holds small group sessions or individual meetings.

Click here to receive the Workbook at a special rate, just for readers of this website.  You could get them for you and your family members for the holidays, as a good way to start the discussion about planning and  your wishes for the future. 

   

When Someone Dies

"I don't know exactly what it is you do when someone dies" - Edna St. Vincent Millay, Sonnets from an Ungrafted Tree.

Like the narrator in Edna's sonnet, people know that there are things that need to be done when someone dies ,but they don't know what those things are, or they feel overwhelmed and don't know what to do first.

The Colorado Bar Association has a wonderful list of the tasks that need to be completed, the people and agencies that need to be contacted, and the time frame in which things should be done.

The above list deals with the practical, paperwork aspects following a death. For help coping with the emotional aftermath, this link has some tips and information, including  ways to help yourself heal during the holiday season. 

How Does Property Pass Without A Will?

What happens if you die without a Will? How will your property in Massachusetts pass to your loved ones? It is often said that if you don't have an estate plan, the State has one for you.  Here it is:   

1) If a person dies with a spouse, and with kindred (relatives) surviving them, (but no children), the spouse is entitled to the first $200,000 and half of the remaining real and personal property. If the personal property is not sufficient to provide the surviving spouse with $200,000, real estate owned by the deceased can be sold or mortgaged to provide for the surviving spouse. 

If the deceased leaves issue (children, and children, grandchildren, etc. of deceased children), the surviving spouse shall take one half of all real and personal property.

If the deceased leaves no issue or kindred, the surviving spouse inherits all of the real and personal property. 

2) After the surviving spouse's share is distributed, or if there is no surviving spouse, the remaining property is distributed in equal shares to the decedent's issue, by right of representation. If all issue are of the same degree of kindred (i.e., all are grandchildren, or all are greatgrandchildren) they shall share equally. 

If the decedent leaves no issue, than to his or her mother and father, or the survivor of them.

If the decedent leaves no issue and no parents, than the property goes to his or her brothers and sisters, of the issue of any deceased brothers and sisters.

If the decedent dies with no issue, parents or siblings then the property is distributed to then to his next of kin in equal degree; but if there are two or more collateral kindred in equal degree claiming through different ancestors, those claiming through the nearest ancestor shall be preferred to those claiming through an ancestor more remote.

3) If someone dies with no spouse or kindred, their property shall escheat to the Commonweatlh.

Those without a Will may think that their spouse will inherit all of their property upon their death, but as you can see, it is possible that a spouse would only inherit half of the property held in the decedent's name alone, while also providing for distributions to rather distant relatives.  Is this how you would want your Will to read?

See: Massachusetts General Laws Ch. 190 ss. 1, 2, & 3.