Estate Planning is like a road map. And while the map may be straight forward for some, for others there may be stops along the way. One thing is for sure is that it all leads to the same destination: peace of mind!
A lot of people put off estate planning because they think of it as confronting one’s own mortality. Granted, that is something heavy to think of, but isn’t is heavier to imagine what will happen to your loved ones if you are ill-prepared… or worse, not prepared at all? The burden can be unimaginable both financially and emotionally.
Many people think that they do not have enough assets to warrant creating an estate plan but that simply is not true. Do you have a house? Life Insurance? A car? Jewelry? Retirement benefits? If you have any of these, or more, congratulations, you have an estate!
First, you need to document your assets and circumstances. We can help you do that with our comprehensive consultation prep worksheet. Not only does our worksheet help you document things for yourself, it is a helpful tool for the attorneys. Prior to your consultation, the attorney can review your completed worksheet to identify potential strategies prior to meeting with you. In your meeting, they will want to hear about your goals. Then they will review potential strategies that may satisfy your goals and they will alert you of other considerations. After they have provided you with an explanation of your options and a quote related to the proposed work, you determine how you wish to proceed. A completed worksheet received in advance of your meeting makes the 90 minutes allotted for your consultation more productive, allowing more time for the attorneys to hear your goals and offer you a strong understanding of their recommended strategies to achieve those goals.
Although completing this summary may seem like a bit of work at first, remember that probating assets take more work, time and money. Assets are obvious things such as a house or a car. But don’t overlook things like that vacation home that you co-own with your siblings, or that hardly ever used time share. Perhaps you have life insurance policies, a 401K, Roth accounts, personal property like art and jewelry, business investments and even social media accounts and other “intellectual” properties.
Next, we need to identify your goals.
- Are you looking to provide for your family, or generations of your family after you are gone?
- Do you want to gift your estate to a charitable institution?
- Are you prepared if you were suddenly incapacitated? Have you considered what kind of care would wish to receive if that were to happen?
- Do you want to ensure that a special-needs loved one will be provided?
- Are you concerned what will happen to your beloved pets?
- Are you concerned with taxes eating up your estate?
- Are you afraid that everything that you worked so hard for, will be gone within a matter of a few years?
You have a lot of concerns and more than a few goals and we can help identify those. And you can have an estate plan that is a straightforward as you want or a complex as you need it to be to protect your assets. You are in the driver’s seat and we are your co-pilot.
So far, we have determined what you have and how much of it. Now we have to figure out what the potential risks are to your interests. Risks can include:
- creditors from bankruptcy
- being part of a lawsuit
- predatory family members or scammers
- costs of nursing care such as a nursing home
- not having long term care insurance
- not incorporating a business
- estate recovery to Medicaid.
A good way to insulate your estate to have a trust such as a revocable or an irrevocable trust.
You also give thought to whom you want your estate to go to… and whom do you may wish to exclude. Including someone in the estate are obvious ones such as spouses, children and grandchildren, nieces, cousins, etc. Not so obvious ones include pets (yes, pets), friends, devoted caretakers or neighbors or a charitable organization. As far as who you don’t want to leave your estate to? Well, we don’t want to leave everything to Uncle Sam, that’s for sure. Our attorneys will help you to minimize taxes to your estate, leaving more for your loved ones. Also, we strategize bloodline planning for those unfortunate times when your in-laws may become outlaws. We also make sure that in cases where you are remarried, your ex-spouse has no claim on your estate.
Once it is determined who you will want to benefit from your estate, there are still factors that need to be addressed.
- Is the person responsible enough to manage their money?
- Are they old enough to receive an inheritance directly?
- For example, if you have minor children, you will also need to appoint a guardian that you trust. Ideally this person will one that you will trust with not only managing your child’s trust but raising them the way you would have wanted.
- But what if you have a child or a grandchild who is disabled?
- In cases of disabilities, a special need trust would need to be established so that any inheritance would not cause government benefits to end.
- And, much like a child who cannot inherit money directly, neither can a pet. Again, a trust would be set up for your beloved pet while appointing someone to be its caretaker.
- In cases where perhaps although the person may be old enough, they may not be mature enough to handle their money or may have problems such as an addiction. In these cases, you may want to again consider a trust where a trustee will be able to manage the inheritance for them.
So, we have covered determining who gets what when you pass, how much and when, and how a will and a trust can help to facilitate that. But what do you need while you are alive? How can you prepare now to help your family if you are incapacitated unexpectedly or receive a diagnosis? Above and beyond a Last Will and Testament, the other crucial documents that everyoneneeds are:
- Health Care Proxy (HCP) – This is a legal document in which you designate an agent to make your medical decisions if you are unable to make them yourself. It is only effective when a doctor indicates in that you are incapable of making medical decisions. Every HCP should have a primary agent and an alternate agent.
- Durable Power of Attorney – This is a legal document in which you designate who you want to make legal and financial decisions for you if you cannot make them yourself. Our DPOA is extremely comprehensive. It allows the agent to handle virtually all legal and financial matter that may arise. It is very important that you only pick people whom you trust to be your agent. It is also important that the DPOA have a primary agent and an alternate agent who acts only if the primary agent is unable.
- Health Insurance Portability and Accountability Act (HIPAA) Disclosure – (HIPAA) reserves the privacy of your medical information. It prohibits access to your private medical information. Without this document it can be very difficult for family members to assist each other with medical issues such as insurance, finding out about test results, speaking to a doctor or pharmacy about a prescription. In our HIPAA Release, you authorize the people listed on it to have access to his medical information. The HIPAA agent can fax or give a copy of the HIPAA Release to the medical provider and then the medical provider will be allowed to speak with that person.
- Advanced Directive – Also called a ‘living will’ because it is all about you and your choices while you are alive. It details what kind of care you want, or don’t want in your final days. This document, although not legally binding in Massachusetts, does set up the framework for your family, caretakers and doctors as to your wishes and eliminates guesswork and squabbles between people who love you very much but have very different opinions.
So, as you can see, a lot goes into an estate plan and you need a law office well versed in the intricacies of this type of law. You will benefit from the guidance of someone who is familiar with probate avoidance, MassHealth regulations, setting up different trusts. But just as importantly, you need a firm that understands that there is no cookie cutter estate planning for families. That they are all unique and special.
Our relationship doesn’t end once you have your plan. We’ll be by your side through all phases of life. Your estate plan doesn’t just get locked away or put on the shelf. At Surprenant & Beneski, we want to touch base with you every three years, so, we offer all clients a free 3-year review. And we will remind you, too. Maybe nothing has changed. Maybe a lot has. New grandbaby? Daughter remarried? You bought a vacation home in Florida? We want to hear all about it and make sure everything is taken care of and included in your plan. Or maybe you need a new plan. Either way, don’t forget to tell us about changes to your circumstances or your assets.
Contact us today! We welcome the opportunity to help you with strategic planning for your peace of mind.
©Surprenant & Beneski, P.C. 35 Arnold Street, New Bedford, MA 02740, 336 South Street, Hyannis MA 02601 and 45 Bristol Drive, Easton MA 02375. This article is for illustration purposes only. This handout does not constitute legal advice. There is no attorney/client relationship created with Surprenant & Beneski, P.C. by this article. DO NOT make decisions based upon information in this handout. Every family is unique and legal advice can only be given after an individual consultation with an elder law attorney. Any decisions made without proper legal advice may cause significant legal and financial problems.