If you die without writing your will, the state where you lived has a generic one for you in its state law. Suppose you die leaving a spouse and adult children. You wanted your husband to inherit everything, assuming that your children would receive the remainder upon his death. But that may not happen. In many states your spouse will get a portion and the children receive the rest. If you have a blended family, the results can be more surprising.
Also, if you write your own will, you can name the guardian who, at your death, would be best suited to care for your minor children, as well as naming who should be in charge of settling your estate. Otherwise, a judge decides who fills the important roles.
What happens if you die before making a will that names a guardian? Your minor kids will be at the mercy of family members and the probate court. Keep in mind that any interested person can ask to become a guardian, and that this critical decision would then be made by a probate judge-who does not know your family.
A revocable living trust is similar to a will. Both are documents that leave money and property to loved ones at your death. However, a trust requires that you appoint yourself or someone you choose, a trustee, to manage and distribute assets in the trust during your lifetime as well as after your death. You may put some or all of your money and property into the trust, called “funding the trust.” If you name yourself trustee, you’ll be in control, while alive and competent.
If you do choose to serve as your own trustee, you will still need a backup to take over should you become incapacitated or die. Pick someone who is capable, trustworthy and willing-usually a spouse, relative, close friend or professional trustee. Professional trustees can be found at local banks and trust companies. Your attorney can advise you in choosing.
Creating, and funding, a living trust often saves you money, since the cost and time required to distribute assets held in a trust is often significantly less than under a will in probate.
Many people think having a will avoids probate. This is not true. Assets passing under a will must go through probate. Probate involves filing and verifying the will with the county court, appraising property, paying debts and taxes, and distributing the remaining assets to the heirs.
Besides avoiding probate, living trusts can provide other benefits as well. Suppose you leave your estate to your son in your will. What happens if he later divorces or dies? His wife ends up with much or all of your funds. Your son’s wife (or ex-wife) could then leave your money to anyone she chooses at her death-omitting your son’s children (your grandchildren) entirely. With a living trust you can guard against such a scenario, making sure your grandchildren benefit from your estate. You would name your son as your successor trustee, allowing him to draw income (and limited principal) in his lifetime. At his death (or when he reaches a designated age) the trust would end and the funds would be distributed to his kids usually.
A living trust can also protect your children’s or grandchildren’s probate inheritance until they are responsible enough to handle it themselves. You can name a more responsible family member as successor trustee to keep control of the funds for children or grandchildren until they are 25, 30, 40 or even older. You decide when the time is right. In the meantime, the heirs can get money from the trust as they need it for school, health care, and other worthwhile purposes.
Finally, if you are remarried and wish to leave money or property to children from a prior marriage, a living trust is invaluable. In some states, assets in a living trust that pass to children at death cannot be intercepted by a surviving spouse. But if you have only a will, chances are your spouse will receive a sizable portion of your estate-even if the will leaves everything to your children.
This may be the most important planning tool you can give to your family. Let’s say you suffer a stroke and can’t handle your financial affairs. Your bills still need be paid, and to do that, some of your CD’s must be cashed in and stocks sold. Since you’re too ill to sign, can your husband or children help? Unfortunately, the answer is no. No one else is automatically authorized to handle your finances.
A Power of Attorney (“POA”) can give the agent either specific, limited powers or broad powers. For example, it can authorize someone to sign the deed to sell your house if needed, or to endorse checks, pay bills or make withdrawals from your accounts.
A Durable Power of Attorney (“DPOA”) is almost the same as a regular Power of Attorney, but with one key difference. A regular Power of Attorney becomes ineffective the moment the principal becomes incompetent; a Durable Power of Attorney remains valid even after debilitating illness or mental impairment.
What happens if you become incapacitated without having given anyone DPOA? Typically, your financial affairs would have to be managed by a guardian appointed by the probate court-a more expensive and more complex procedure than a DPOA.
Massachusetts, like most states, have Health Care Proxys for medical decisions. This document lets you appoint a trusted relative or friend to make decisions about your medical care in the event that you are unable to make or communicate them yourself.
For example, suppose a doctor would like to try a procedure (non-emergency) to diagnose your illness. You are unconscious, so you are unable to authorize it. The doctor can’t just go ahead with the procedure and your family can’t authorize it. However, if you have given your family a Health Care Proxy or they have obtained guardianship through the probate court, then they can authorize the medical procedure.
A Living Will informs others what medical treatment you desire if you become permanently unconscious or terminally ill and are unable to make or communicate decisions regarding treatment. It is non-binding. All but three states-Massachusetts, Michigan and New York-have passed living will laws to protect a patient’s right to refuse medical treatment. In the majority of states, a living will is a legally enforceable document and can insure that a doctor who abides by a patient’s wishes will not incur any liability.
Even in states without living will laws this document is useful to a judge trying to decide what an unconscious patient would want.
In Massachusetts, owner gets automatic Homestead protection, but only up to $150,000. Filing an independent Declaration of Homestead in Massachusetts gives you protection against creditors for up to $500,000 in the equity in your home. Single persons are eligible to file homesteads. Disabled persons can be entitled to EXTRA protection as are persons over the age of 62.
This form of ownership affords in many circumstances excellent protection against creditors for married couples. Consult with your attorney about this form of home ownership.
There are many more sophisticated weapons for a savvy person to protect his or her assets from Creditors including Family Limited Partnerships, Limited Liability Corporations, and Corporations and a wide selection of Estate Planning Techniques that are excellent tools to protect assets.