Estate PLANNING & INCAPACITY PLANNING

The estate planning process establishes the framework for distribution of your estate upon your death.  Estate plans often include various legal and financial tools like wills, trusts, and life insurance. Clients identify beneficiaries, plan for the payment of debts and estate taxes and nominate a personal representative to manage the process.  Having an estate plan ensures that the assets you worked hard to acquire are preserved and distributed to your loved ones in accordance with your wishes.  

Incapacity happens when you are unable to make health care or financial decisions for yourself due to a physical or mental impairment.  The health care proxy, durable power of attorney and living will are legal documents that can bridge the gap caused by incapacity and provide a seamless transition so that your financial and health care needs are met.  

If you do not have an estate plan in place your estate will be distributed in accordance with state law.  In Massachusetts that means that the distribution of your assets, payment of debts and the appointment of a personal representative to oversee it all will be determined by the Massachusetts Uniform Probate Code and a Probate Court judge.

A failure to prepare for incapacity can have devastating effects, force costly litigation and result in a health care or financial plan that may deviate from your wishes.  Anyone can go to Probate Court and seek to be appointed your guardian or conservator to handle your personal welfare and business and financial matters.  A simple health care proxy and durable power of attorney can avoid this situation providing certainty and peace of mind.

The estate and incapacity planning process starts with completion of our questionnaire so that we can get to know your particular situation. We will review your responses and schedule a consultation to discuss our recommendations.  We take a flexible approach to these meetings to minimize your downtime from work and other commitments.  Consultations can happen by telephone, remotely, in your home or at our offices.  Once a proposal has been agreed upon, we will begin the drafting process.  Our goal is to provide drafts within two weeks for our clients to review.  When the documents have been finalized, we will schedule and conduct the formal signing process.  Once the estate plan is in place, our attorneys will guide you on post-execution matters such as the funding of trusts, recording documents, and designation of the beneficiaries of non-probate assets such as retirement accounts.  Our office can aid with referrals to other professionals such as accountants, financial advisors and insurance agents depending on your particular circumstances.  

Last will and testament, trust, power of attorney, health care proxy, advance directive a/k/a living will, declaration of homestead.   Which document are necessary will depend on your particular situation.

When you die, your last will and testament provides instructions for the distribution of your assets (personal property, real property, investments, etc.) and also for the payment of your debts, estate taxes and the costs of administering your estate.  It also nominates an individual to act as your estate's personal representative to ensure that your assets are distributed to the beneficiaries you have named.  Another important function of a last will is to nominate a guardian for your minor children.  It's important to note that a last will is not fully activated until your death and the Probate Court has recognized it as valid and binding through the probate process.   

A trust provides for the management and distribution by a trustee of assets for beneficiaries.  The owner of the assets transfers them to the trustee to hold in accordance with the trust's terms.  Trusts can have a number of benefits including but not limited to probate avoidance, estate tax minimization, protection from creditors and the ability to manage asset distribution over longer periods of time.  There are a wide range of trusts and benefits.  Email info@pivotlegalgroup.com to find out if a trust would be of benefit to you.

A personal representative is a trusted individual named in your last will.  They are responsible for distributing your assets, paying creditor claims, and otherwise managing your estate.  It is important to choose a trusted individual to act in this role.  A personal representative's authority is only activated once your will has been probated in the Probate Court and your PR has been appointed in connection with that process.   

Probate assets must be probated in order to be distributed to a beneficiary.  That is, the Probate Court must admit a last will to probate and appoint a personal representative before the asset can be moved out of the estate.  The same is true of those estates where there was no will - the PR must be appointed to administer the estate.  A non-probate asset, often refers to a payable on death benefit or an asset with survivorship rights attached to it. Examples include a life insurance policy or retirement account with a designated beneficiary or jointly owned real estate with survivorship rights incorporated into the way the property is titled.     

A health care proxy is an important legal document naming a competent adult to make health care decisions on one's behalf in the event of incapacity or the inability to communicate health care decisions.  A health care proxy is maintained in an individual's medical records and relied upon by health care providers for consent to treatment, access to medical information and admission to nursing home facilities.    

While not binding in Massachusetts, a living will (sometimes known as an advance directive) is a valuable tool used to express an individual's care wishes in the event of what may be a final, incurable illness or terminal medical condition.  Living wills commonly communicate instructions to family and loved ones regarding artificial life sustaining measures and support.  Living wills are not one size fits all and are always dictated by an individual's particular circumstances including the nature of their medical condition and philosophical and religious beliefs.  Living wills often provide family and loved ones with moral and logistical support during what can be a difficult and stressful time when serious, impactful decisions about care and comfort must be made.