Wills and Trusts
Estate planning is the process of planning for your incapacity as well as the distribution of your assets at death. Basic estate planning consists of the health care proxy, living will, financial power of attorney, last will and testament (“will”) and in some circumstances, the revocable living trust. Larger estates crucially need trust planning because the Massachusetts estate tax exemption is only 1 million dollars (while the federal estate tax exemption currently stands at over five million dollars). That means, any assets in your estate at your death that exceed one million dollars will be subject to taxes by the state of Massachusetts. As of 2016, the maximum estate tax in Massachusetts is sixteen (16%) percent.
You may be thinking why you should worry about creating estate planning documents. The answer is simple. The consequence of not creating estate planning documents is that the court will decide who gets your assets based on state law (intestate succession) rather than your personal wishes. Intestate succession is an extremely rigid process and more often than not, unintended beneficiaries receive assets. By not executing estate planning documents, you run the risk of estranged family members inheriting assets over closer family members who are a huge part of your daily life.
Further, assets passing automatically at a person’s death are exempt from probate, however, these assets should still be inventoried during the estate planning process. The reason for this is to ensure the titling and beneficiary designations are correct before it is too late to change them. Probate exempt assets include: life insurance, joint property with rights of survivorship, co-ownership, retirement accounts, transfer on death bank accounts and payable on death bank accounts.
Incapacity planning documents include the health care proxy, living will and financial power of attorney. You may also consider guardianship or conservatorship documents if you have minor children. These documents name an individual or individual(s) who have the responsibility of taking care of you in the event that you become incapacitated and cannot make those decisions for yourself.
A living will is sometimes referred to as the “pull the plug” doctrine. The living will details your wishes with regard to withholding medical treatments while you are in a vegetative, end stage or terminal condition. These documents usually require a doctor to designate such condition before your wishes are followed. Designating a trustworthy, calm and assertive agent is key to the living will.
The health care proxy designates agents who have the responsibility to care for you when you do not have the capacity to care for yourself. This may include hiring and firing of health care aids, authorizing admission to hospitals or other medical facilities, applying for medical benefits as well as making other health care related decisions on your behalf. The health care proxy is an important document to execute, as it is inevitable that every person will become unable to care for him or herself at some time and absent such documents, court guardianship is required.
The financial power of attorney names agents who have the responsibility of handling your financial related decisions in the event you become incapacitated. Unlike other states, in Massachusetts, the financial power of attorney can be durable or springing. The durable financial power of attorney is effective upon signing. The springing financial power of attorney is effective upon your incapacity with a certification of incapacity from your doctor.
Each of these documents are revocable (or may be changed) while you have capacity to do so. After your incapacity, you may not change any of your incapacity planning documents.
Last Will and Testament
A last will and testament is a document that designates how your assets will be distributed upon your death. If you pass away without a last will and testament, the court decides who will receive your assets. The last will and testament can also designate a guardian for your minor children. The last will and testament appoints an executor who remains in charge of following your wishes (which are outlined in your document). The executor handles your burial arrangements, pays your taxes, opens a probate (if necessary) and then distributes your assets to the beneficiaries named in your document.
In Massachusetts, it is advisable to make your will “self-proving” by having it signed and witnessed in front of a notary. If your last will and testament is not self proving, the court will not request to contact your witnesses, who may be long gone from their place of residence or even dead upon your passing. A last will and testament can also allow the executor to create a trust after your death, also known as a testamentary trust.
If you choose to distribute your assets through a revocable living trust for one of many reasons, (added control, simplicity, privacy, probate avoidance, tax savings or other reason) you will still need a last will and testament. However, the last will and testament will be executed as a pour over last will and testament (“pour over will”). Pour over wills generally have similar provisions to regular wills. Personal property usually still gets distributed through the will, but the other assets are “poured” over into a revocable living trust which is set up contemporaneously with the the pour over will.
Revocable Living Trust
The revocable living trust is used often in estate planning and is an essential document in your estate plan. The revocable living trust is a tool to pass assets to your loved ones. Trust documents are very flexible and can be customized for your specific needs very efficiently. Revocable living trusts are commonly used for the following reasons: to control distributions or stretch distributions over time, simplicity, privacy concerns, probate avoidance, tax savings and retirement and/or life insurance planning.
The creator of the revocable living trust is called the settlor (or grantor). The settlor names certain individuals to act as trustees. Trustees are similar to executors because they are named to handle and distribute assets to beneficiaries. The trust document also details a plan of distribution to your beneficiaries. The plan of distribution may further specify limitations. One limitation could be a waiting period for beneficiaries to receive assets (while supporting them prior to the waiting period). The trust can specify parameters for the care of surviving spouses and give authority to the trustee to shelter assets from taxes by creating additional trusts. Another limitation could be to leave certain beneficiaries out of the distribution plan for various reasons.
Funding the revocable living trust is a crucial final step. Forgetting to fund the trust document could be disastrous to your estate plan. An unfunded trust does not provide you with any benefits other than acting as a pour over for your last will and testament. In some cases this may be desirable, and in others funding a revocable living trust could allow you to bypass probate.
The revocable living trust can be revoked (or changed) during your lifetime, but automatically becomes irrevocable at your death. Therefore, you can be certain that your wishes are followed beyond your passing.
Irrevocable trusts are often used for tax planning. Examples of irrevocable trusts include: the irrevocable life insurance trust, the qualified personal residence trust, the special needs trust, defective grantor trust as well as many other grantor trusts. If your estate is valued at one million or more dollars, you may consider using one or more of these trusts in your estate planning.
Finally, your estate planning documents must be executed under specific formalities in order to be effective and accepted by hospitals, financial institutions and the court. Failure to follow such formalities could lead your documents to be invalidated or refused.
Allow our trust and estate lawyers to assist you with your estate planning by contacting our office to schedule a complimentary consultation today!