The Dangers of Having No Will or Trust in Place and Losing Capacity Before Death

Considering the undeniable fact of our mortality, it is surprising how many people delay or overlook the importance of estate planning, including the drafting of wills and trusts. At Surprenant & Beneski, P.C., we know that the risks of dying without a will (intestate) or without a trust, compounded by the possibility of losing mental capacity before death, are profound. We are committed to assisting clients throughout Southeastern Massachusetts in creating estate plans that address these issues with care and foresight.

The Purposes of Wills and Trusts

Wills and trusts serve pivotal roles in estate planning by allowing individuals to dictate how their assets should be distributed upon their death. A will provides a legal declaration of an individual’s wishes regarding the disposal of their property and the care of any minor children. Trusts, on the other hand, offer a more flexible and more private means of managing and transferring assets, sometimes offering tax benefits and protection against probate proceedings.

In Massachusetts, having these documents in place ensures that your assets are distributed according to your wishes, not the state’s intestacy laws, which take over when a person dies without a will.

The Risks Involved in Dying Intestate in Massachusetts

Dying without a will in Massachusetts subjects your estate to the state’s intestacy laws. These laws dictate a default scheme for distributing your assets, which may not align with your personal wishes or the needs of your beneficiaries. 

For instance, if you are unmarried but have children, your assets will be divided equally among them, regardless of your individual relationship with each or their individual financial needs. Similarly, if you are married without children, your entire estate defaults to your spouse, potentially overlooking other family members or friends you may have wanted to include.

Moreover, intestacy can lead to lengthy and costly probate proceedings, diminishing the value of the estate left for your heirs and possibly causing familial discord.

No One Plans to Lose Mental Capacity

An often overlooked aspect of estate planning is the potential for an individual to lose mental capacity due to illness or accident before death. This situation can severely complicate the management and distribution of your estate, not to mention your right to state your personal wishes in regard to your healthcare, especially if no durable power of attorney, healthcare proxy or advance directive (living will ) has been executed. Without these directives, your family may be forced to seek court intervention (guardianship) to make decisions on your behalf, a process that is typically time-consuming and draining, both emotionally and financially.

In Massachusetts, establishing a living trust can be a proactive measure to manage this risk, since it allows you to appoint a trustee to manage your affairs if you are unable to do so. This can provide peace of mind and continuity in the management and protection of your assets.

How Our Attorneys Can Protect You and Your Family

At Surprenant & Beneski, P.C., our team of experienced estate planning attorneys understands the complexities of Massachusetts law and the unique challenges that come with planning for the future. We are committed to working closely with you to develop a comprehensive estate plan that includes a will, trust(s), durable power of attorney, health care proxy and living will, each tailored to your specific needs and wishes.

Now Is the Time To Contact Our Capable Attorneys

No one knows how long their lifespan will be and no one can assess whether or when they may become incapable of handling their own affairs. By taking proactive steps today, you can protect your assets, ensure that your wishes are respected, and provide for your loved ones after you are gone. Don’t leave your legacy to chance; let our attorneys help you navigate the intricacies of estate planning to secure your peace of mind and the future of your family. Contact us today.