At The Sullivan Firm, we believe every estate plan starts with an understanding of the estate planning process by our clients (please click on “Our Process” in the heading above to learn more). In furtherance of our mission to ensure knowledgeable clients, we have prepared the following list of frequently asked questions concerning both our firm and our area of practice.
“I want to control my property while I’m alive, take care of me and my loved ones if I become disabled, and give what I have, to whom I want, the way I want, and when I want. Furthermore, if I can, I want to save every last tax dollar, professional fee, and court cost legally possible and leave a meaningful legacy that preserves my values, stories and heritage for future generations.”
In its most basic form, estate planning is the process of preparing for the possibility of your mental incapacity and your eventual death. Estate planning, however, is about far more than death and disability—through estate planning, you shield your legacy. You work your whole life to care for and protect your family. All your efforts can be wasted if you fail to plan accordingly. Using a wide variety of estate planning tools, you can preserve your assets for future generations, protect your family’s inheritance from creditors, bankruptcy and divorce, spare your family the expense and delays of probate, set forth your wishes as to your children’s guardianship, and ensure a trusted loved one is able to make critical decisions concerning your finances and healthcare. This is the true definition of estate planning—taking control of and defining and protecting your legacy.
Probate is the process through which the estate of the deceased individual, known as the decedent, is distributed through the legal system. Probate is conducted entirely within the court system and will be overseen by the Massachusetts Probate and Family Court. The existence of a will does not impact whether or not property will go through probate. Rather, it is how assets are titled that matters. All assets titled in the name of the decedent alone will go through probate, regardless of the existence of a will. Property that is in the name of the decedent’s Revocable Living Trust will avoid probate altogether. In addition, property that is jointly owned, such as a bank account, and property that has a beneficiary designation, like a life insurance policy, will avoid probate but raise additional issues that would warrant a discussion such as a lack of inheritance protection for the beneficiaries.
Oftentimes, people will ask me, do I really need an estate plan? The answer is always unequivocally yes. Everyone needs an estate plan. Everyone has wishes and concerns that they need to set forth to their loved ones so that they are honored.
To illustrate the importance of an estate plan understand that if you fail to create your own estate plan spelling out how you want to control your assets and your life decisions, the probate court of Massachusetts will decide for you. That’s right, you already have an estate plan in place courtesy of the Commonwealth of Massachusetts. So please know that if you want to have control of who takes care of your children or how your assets get passed along at death or who will make health care decisions in case of incapacity you need to create your own estate plan.
It is always best to retain the representation of a knowledgeable estate planning attorney. Estate planning is one of the most complex areas of law, and minor mistakes in the drafting or signing of documents can invalidate them entirely. You do not want to risk the safety of your legacy to spare the expense of an estate planning attorney.
The end result of the estate planning process is the creation of documents. However, the value of developing a proper personalized estate plan is in meeting with an experienced estate planning attorney and discussing your goals, objectives and fears and then using the tools available to customize a plan that achieves your goals and objectives and quiets your fears. We all know that no two people are the same when it comes to these issues and therefore no estate plan is exactly the same. The documents prepared for your estate plan will depend largely upon your circumstances and desires. We use a wide range of strategies and tools to design and implement a personalized estate plan that is right for you. Your estate plan can include some or all of the following, depending on your specific needs:
- Revocable Living Trust
- Health Care Proxy
- Durable Power of Attorney
- HIPAA Release
- Family Limited Partnership
- Protection Trust
- Living Will
- Special Needs/Supplemental Trust
- Affidavit and Certificate of Trust
- Minor’s Trust
- Qualified Personal Residence Trust
- Charitable Planning
- And many other tools