Frequently Asked Estate Questions & Answers
Q: What happens if I pass away without a will?
A: If you do not have an estate plan in place, and die without a will, the laws of the Commonwealth of Massachusetts will decide how your property is administered and distributed. The entire system of "intestate" succession or "descent and distribution" is set by statute. The law details the persons to whom your property will pass and the division of your estate among those persons. The distributions provided by law are inflexible and may not satisfy your desires as to distribution of your estate. In addition, the amount to be distributed to your children will require a cumbersome and costly legal guardianship if the children are minors at the time of your death.
If you die without a will and you are survived by your spouse and children, not all of your probate assets will pass to your surviving spouse. One-half of your probate assets will pass to your surviving spouse and the remaining half of your probate assets will pass to your children. For the most part, a probate asset is any asset which is in your name alone at the date of your death. The problems of dying without a will are aggravated if a married couple owns a family business with fifty percent by each spouse as separate property. If one of the spouses dies without a will, the ownership interest of the deceased spouse will pass to the surviving spouse and minor children, and a legal guardianship will be required to manage portion of the business interest that passes to the minor children. The surviving spouse will have the guardianship for the minor children as a "partner" in the family business. In accordance with the requirements of a guardianship, the surviving spouse may have to post a bond and make a detailed periodic accounting to a court for all business transactions.
If you die without a will and are survived by your spouse alone, leaving no children, not all of your estate will pass to your surviving spouse; part of your estate will pass to your parents. Again, such a division of your property may not accurately reflect your wishes.
If you die and are survived by your children only, leaving no surviving spouse, your entire estate will pass to your children. If they are minors, a guardianship will be necessary to manage their property.
Q: What is a Personal Representative?
A: Under the Massachusetts Uniform Probate Code, an Executor or Executrix is now called a
“Personal Representative.” The person is a fiduciary who will serve as the primary representative of your estate. This person is responsible for retaining a Massachusetts Probate attorney, collecting and protecting Estate property, paying claims against the Estate, distributing property to the beneficiaries, and the like.
Q: What or Who is a Trustee?
A: A Trustee is one to whom property is legally transferred for the benefit of a beneficiary. In Probate, while Personal Representatives, like Trustees, are fiduciaries, Trustees only manage and administer Trusts. A Trust is a not subject to Probate and comprises of a separate legal instrument that allows property to pass and be distributed according to the terms of the document.
Q: What is a durable power of attorney?
A: A Durable Power of Attorney allows you to authorize another individual or entity to manage your financial affairs. (This allows someone else to access your bank accounts, pay your bills, or sell assets, depending on the powers granted to the attorney). A durable power of attorney is a written document in which you, as the principal, designate someone you trust, such as your spouse, another family member, a friend or a professional, as "your attorney in fact" or "agent." Your attorney in fact is authorized to perform certain acts on your behalf. Generally, a power of attorney terminates on the disability or incapacity of the principal (person who issued the power or the “grantor”). If the power of attorney is "durable", it will not be affected if you become disabled or incapacitated. A Durable Power of Attorney drafted by a Massachusetts Probate and Estate Lawyer is an important document to ensure that your financial affairs are managed properly if you become suddenly sick or injured. If that occurs without having issued a power of attorney, then it is too late.
Q: What is a Health Care Proxy?
A: A Health Care Proxy is a document in which you may designate a trusted individual to make important decisions concerning your health care. In all likelihood, you have completed a health care proxy if you have every been admitted to the hospital. However, not everyone will be in the condition and/or capacity to execute this document prior to admission to a hospital (Ex: car accident, sudden illness, etc.). It is therefore important that you work with a Massachusetts Probate and Estate attorney on creating a health care proxy.
Q. How frequently should I review my estate plan?
A: Estate planning documents should be updated at least once every ten (10) years by a Massachusetts Estate Planner. A substantial change in your finances or in your family situation may necessitate a revision in your estate plan. A divorce, marriage, or second marriage, of course, will re-open the matter of planning your estate.