Massachusetts Estate Planning and Elder Law

Changing Your Living Will During Pregnancy

Most people think that the time to revise their estate plan, including their health care proxy and living will is when a big change occurs: marriage, birth of a child, divorce, etc. However, as Shelly Mactyre, of The Fig Tree  points out, you may wish to change your living will or health care directive when you become pregnant to reflect any changes in your desire for extraordinary measures due to your pregnancy. 

Shelly decided that she wanted to be kept alive until the baby was viable. Have you thought about if you want to change your plans? And more importantly, have you told the person who would have to make this decision if you were unable?

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.

Boston Globe Magazine Column About Wills

Today's Boston Globe Magazine had a column regarding some of the struggles parents go through when deciding when and how to make their estate plans.  It seems like all this father needed was a little nudge from his daughter. If your children can't talk yet, or haven't brought up your estate plan, don't let that hold you back.

By Shawn Peters  |  April 30, 2006

My 5-year-old daughter, Hazel, was snuggled up on my lap not too long ago, and as I marveled at how quickly she's growing up, I found myself telling her, "You know, even when you're a grown woman, with your own family, you will always be my little girl." She clearly liked the notion and replied, "And you will always be my daddy, even when you're dead."

That Disney moment turned Tarantinoesque in a hurry. But it also made me realize that if a kindergartner has figured out that I'm not immortal, it was time to draw up my first will and testament. For 11 years of marriage, we'd been walking a tightrope without a net: Where there was a will, there was a wait. At first there were no assets, at least until we'd opened all the wedding gifts, and no kids to provide for should we die unexpectedly. By the time Hazel was born, any assets we had accumulated were quickly eaten up by the expense of a new baby. But with the birth of Teddy, our second child, the purchase of a home, and the establishment of college funds, we could put off the will no longer.

(Click the link above to keep reading) 

Source: Boston Sunday Globe, April 30, 2006

Estate Planning - What Are You Waiting For?

There was a great post recently by Jennifer Sawday, an estate planning attorney in California, in which she talks about some of the reasons people don't make an estate plan.  The three she came up with were: price, fear and not knowing the consequences of not making a plan. 

I would add to this list: difficulty in making the decisions to form the plan. There are a lot of decisions that need to be made for your estate plan: who will make your health care decisions for you, who will make financial and other decisions for you, who will act as the guardian of your children, how will you divide your property, who will act as the trustee for your trust?  For some people these are easy decisions, for some they are more difficult. But the harder they are to make, the more important it is for you to make them.   If you can't decide who you want to act as guardian for your children, what would happen if that need arises? Will your families be in Court fighting over custody and letting the judge make the most crucial decision?

All of these obstacles to making an estate plan can be overcome by talking to an attorney. Your attorney can let you know the price of the estate plan so that you can begin to work it into your budget, your attorney can reassure you that drafting an estate plan will not cause bad things to happen to you, and your attorney can explain the consequences of not executing an estate plan.  In addition, your attorney can facilitate some of the decision making that needs to be done by letting you and your spouse or partner know the decisions that will need to be made, what the different roles are of the people you will be appointing, and asking questions to help you explore the areas where you might be stuck. It might take some time, but by starting the process you are half way there. 

(I like to add pictures to my posts, and today's picture is of my niece, Audrey June, at the Public Gardens in Boston wearing a dress and pants that I made for her.)

Do your kids need their own estate planning documents?

If your children are over 18, did you know that you no longer have access to their medical records, health insurance claims or other confidential information?  The only way for you to have access to these important documents is if your children sign the appropriate releases allowing you access: health care proxies, HIPAA releases, even Durable Powers of Attorney.

Now, maybe your children want their privacy and no longer want you to have access to these records. However, they should still be encouraged to appoint someone to be able to act for them if they become incapacitated or in the event of an emergency. Maybe they will want to appoint an older sibling, or close friend, or maybe they will want to appoint one parent and not the other.  Whatever they decide to do, remember that it is their decision and you should respect it.  When you are talking to them about this, try to frame the discussion so that they realize you aren't trying to violate their privacy, but rather you are trying to ensure they have some plan in place so that if an emergency arises, someone knows what their wishes are and has the legal authority to make decisions in accordance with those wishes.

Better yet, see if they'd like to make an appointment with an attorney to discuss these matters in confidence and learn the importance of planning for everyone over the age of 18.  If you or your children would like to speak with me about putting a plan into place, you can reach me at 781-749-2284.

I know I need a Will, now what? Or, choosing guardians for your children.

I received the following email from my friend the other day

Leanna, now that I have a baby, I guess we need a will. What do we do next?

I replied that the main thing she and her husband need to decide is - in the event of a tragedy, who would they like to raise their child? Some of the things I advised them to consider are:

• Who most closely matches your parenting philosophy? If you co-sleep, home-school and practice gentle discipline, consider the parenting style of the proposed guardians and where your children would feel most comfortable being raised in a manner you would have chosen for them.
• What age/health are the proposed guardians? Your mother loves your children, there is no doubt about that. But that doesn't mean that she should be the guardian of them. Consider her age, health, living arrangements (is there room for your three moppets in her 1 bedroom apartment?), and lifestyle (does she love to travel at the drop of a hat, or does she barely leave the house?) It might be more appropriate to choose someone closer to your age, maybe with similar aged children.
• Where are the proposed guardians located? You'll have to consider whether your choice of guardian would cause the children to be moved across the country to live with their guardians, or whether they could stay in the same school and neighborhood. 
• Do you want to choose an individual or a married couple? Whether you've chosen your best friend from high school or your brother, you need to consider whether you want to name that person's spouse as well. Remember, they could get divorced which could complicate the scenario. You might be better off just naming one person, with an alternate named if the first guardian is unavailable.
• Once you've made your choice, have a conversation with your proposed guardian about it. Then contact your attorney to draft the will before you change your minds.  Also, you might want to write letters, to be kept with the will, to people who might be upset by your choice explaining why you chose the guardians you chose. Hopefully these letters will never need to be read, but they will help smooth things over if they ever are.