Estate Planning – PROBATE

by | Apr 11, 2016

Estate Planning – PROBATE

Estate Planning Attorneys Servicing Massachusetts and Rhode Island

Estate planning is the process of legally planning for the settlement of your estate at the time you pass away and also determining how your healthcare is treated if you become incapacitated or unfit to make your own medical decisions. Most people do not even realize that they have an estate, but everybody has an estate. Your estate includes all of your belongings such as your automobiles, money that may be contained in a checking or savings account, investments, insurance policies, and of course real estate. Find out how to protect your assets and preserve your wealth with the help of the top estate attorneys in Massachusetts. Call today to book your consultation. Serving Fall River, Taunton, New Bedford, Bristol County throughout Massachusetts.
Most people do not like to think about estate planning or believe that it is only for retired people, nothing could be further from the truth. Estate planning is not simply dividing up your property when you die and determining who gets what, it is much more than that. Estate planning is also a means to protect your property in the event you end up in a nursing home or other long-term facility before you pass away. Many people do not realize that if your estate planning is not done properly, assets such as your real estate can be taken by the government to cover the costs of your nursing home care or your extended medical care prior to your passing.
Proper estate planning is essential for protecting the property that you worked your entire life to acquire. Good estate planning covers a lot more than simply who gets what when you die. There are many reasons to have proper estate planning, most of which most people do not realize. These include just a few of the following:
Passing on your values to your loved ones and the next generation such as your religious beliefs, education, and your view of the world and what you would like to tell the next generation, it is simply not passing on property.
Health care instructions determine the choices that should be made in your healthcare in the event that you become disabled before you pass away. You might also name a person to manage the property that you give to children under the age of 18, these guardians will provide the distribution of your property to your children in the event they are too young or too irresponsible to manage money.
Estate planning is essential for passing on the means to provide family members that have disabilities without affecting their government entitlements. The protection of the people that you love by providing protection for the inheritance you leave behind them from unscrupulous people they may encounter in their lives or from divorce. Life insurance is also an important part of estate planning, through estate planning you do not simply hand the money over to a single beneficiary, which is common practice with most insurance policies; instead, you provide a means of distributing the proceeds of a life insurance policy in the best way you have deemed for your family. People who have a business certainly need to have a good estate plan in place, the distribution of a business, if you become disabled or pass away, is essential to a sure that the business you work so hard to make successful is not lost when you are no longer able to run it.
Most people put off estate planning because they don’t think they have enough money and property, because they’re not retired, or simply because they feel they don’t have the time to do it. The simple fact is if you do not plan for your estate, the state that you live in has a plan for you and you certainly will not like it, and even more so your family will have to suffer because the state will choose how your property is distributed. Estate planning also protects how much money and your property from being excessively taxed by the state and federal government. The cost of estate planning is only a fraction of how much the government shall tax your estate when you die if you do not have a good estate plan in place.

At the BOTELHO LAW GROUP, we provide our clients with complete estate, probate, as well as planning services for long-term care. All of the services that we provide are custom-tailored to each client’s individual financial needs, estate planning goals, and budget. Most people do not like to think about estate planning, as this forces us to deal with the simple truth, but someday we will pass away or live for an extended period of time without the ability to control our own financial affairs. Estate planning is a critical part of planning for your future. You’ve spent a lifetime working hard for your property and assets, our experienced team of estate planning attorneys, will guide you through and educate you on, probate and long-term care planning, to allow you to retain the property and assets you have worked so hard for your entire life. Our team of experienced estate planning attorneys will formulate a plan that is specifically tailored to your finances, your assets, your goals, and of course your budget.

 

 

 

▪   Last Will and Testament:

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▪  A Last Will and Testament is a legal document that allows you to assign who will manage your estate, who will inherit from your estate, appointing a guardian for your minor children until they reach adulthood, and how the property of your state will be distributed upon your passing. The most important factor in considering having a will prepared for you is to allow the probate court to know your exact witches on property distribution and who will be entrusted with the task of distributing your property. The simple fact is, if you do not draft a will, the state you reside in, will use their particular laws in deciding how your property is distributed and to who receives property in your estate. It is critical to remember, if you do not have a will in place, the state will decide where your assets will go and who will receive them, this will not be left up to your family to decide. There also certain life events that will necessitate the drafting of a new will, such as the new marriage or the birth of a new child.

 

▪   Trusts:

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▪  A Trust, is a legal document that establishes a separate legal entity (much akin to a corporation or limited liability company), that you are able to transfer the ownership of real estate, assets, or even money, to be managed for the benefit of yourself or the benefit of your family members (although you can appoint anybody to be a beneficiary of your trust). There are a number of different trusts which can be employed, depending on your particular circumstances and wishes. These trusts include revocable trusts, irrevocable trusts, special needs trusts, living trusts, life insurance trusts, charitable remainder trusts, and marital deduction trusts. In all the various forms of trusts, there are a number of goals that can be accomplished, such as: providing financial support for your family, protecting your assets from lawsuits and judgments, allowing you to be able to obtain certain government benefits, reducing estate taxes, and they also have the ability to distribute your assets (real estate, money, and property) after you have passed away, which allows your family and heirs to avoid the probate court process altogether. A Trust by far is one of the most useful tools in the estate planning arsenal, although several other estate planning documents are usually used in conjunction with the trust, therefore you should always have an experienced estate planning attorney handle the formation of your trust.

 

▪   Probate of a Will:

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▪  If someone dies with the will, that will must go through the process of the Probate Court. Many people are of the mistaken belief, that if someone has a will, their family members can simply divide up their property as it stated on the will; nothing could be further from the truth. When a person dies with the will, that will must be probated, and the executor appointed (these are called personal representatives in Massachusetts) and formally go through the probate process in court to distribute that person’s assets, in accordance with their will.

 

▪   Administration of Estates:

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▪  If a person dies without a will, but has assets (real estate, money, stocks, and bonds, etc.), at the time of death that person’s estate must go through the Probate Court system, also known as probating an estate.  This includes filing with the probate court, appointing an administrator, will get an inventory of all the assets of the deceased person and facilitate the distribution of those assets among the person’s heirs, as well as paying for debts, such as funeral expenses.  Since we are discussing a case where there is no will, there is nothing guiding the person who is administrating the estate, therefore it is strongly suggested that you employ the services of an experienced estate planning lawyer.

 

▪   Power of Attorney:

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▪  A Power Of Attorney is a legal document in which you choose to appoint a friend, family member, or trusted third party, to make financial decisions on your behalf and also execute legal documents on your behalf. A Durable Power Of Attorney, is a legal document that allows the person you have appointed to continue to act in this capacity, if you are incapacitated and no longer able to handle this yourself. A power of attorney can also be drafted to not come into effect unless you are incapacitated. The main difference being that the person you appoint as your power of attorney, will not have any authority to act as your power of attorney unless you have become incapacitated (also known as a Springing Power Of Attorney). It is of great importance that everybody have a power of attorney, because if you do not have one of the legal documents drafted for you, your friends and family will be forced to go to probate court and have a conservator or appointed to act in this capacity.

 

▪   Guardianship:

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▪ A Guardian for someone who is appointed by the Probate Court, to manage the affairs of a minor or an incapacitated person. Guardianships can be tailored in many different ways, from providing full authority to make all decisions of the minor or incapacitated person, or can be drafted in such a way to limit the authority of the Guardian to the only certain subject matter.

 

▪   Conservatorship:

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▪  A Conservator can be appointed by the Probate Court in order to make financial decisions for minors or adults that do not have the ability to manage some or all of their financial decision-making duties. A Conservator can have complete and full discretion to make all financial decisions for the person they are appointed to or the scope of their duties and powers can be as limited as you choose them to be. It is critical to choose an experienced estate planning lawyer to handle all your Conservatorship matters, due to the complex rules and laws that apply to Conservators.

 

▪   Living Will:

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▪  A Living Will is essentially a tool that allows you to inform your physicians and caregivers, of your wishes pertaining to extraordinary medical measures, a continuation of medical care, and life-supporting measures (being put on a ventilator, the use of the feeding tube, and if they are to resuscitate you in a medical emergency). Depending on the state you reside in, is important as certain states do not recognize a living will, such as the Commonwealth of Massachusetts. In these situations, it takes an experienced legal team to draft the correct documents, to ensure your wishes are met when you are medically unable to speak for yourself.

 

▪   Healthcare Proxy:

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▪  A Healthcare Proxy is a legal document that allows you to choose a friend, family member or trusted associate, to handle your medical decisions in the event that you eat incapacitated or for some other reason do not have the mental function to be able to make your wishes known to your physicians and healthcare workers. It is critical that you have a healthcare proxy in place, to have your medical wishes facilitated and to assure that the courts do not appoint a guardian to make your medical decisions for you.

 

▪   Declaration of Homestead:

▪  A Declaration of Homestead is a legal document that is recorded with the state, county, or town – city you live in, that provides your primary residence with protection from certain creditors (people you will money to). A Declaration of Homestead can only be filed when you own a home and that home is your primary residence; this legal document does not work to protect second homes or income property. The benefits provided by this legal document, not only protect yourself but your spouse and dependent children also.

 

▪   HIPAA Release:

▪  A HIPAA release is a legal document which allows you to designate certain friends, family members or a trusted third-party, to discuss your medical conditions and medical treatment with your doctors and medical staff. This document is critical in the event that you have an emergency and cannot speak directly with the medical staff who are treating you, due to some type of injury or incapacitation. This legal document allows the people that you have chosen to able to get information from your physicians and healthcare workers regarding your medical needs and treatment.

 

▪   Life Estate Deeds:

▪  A Life Estate Deed is a deed, much like a quitclaim deed, but allows you the ability to transfer your real estate to another person or persons, while retaining an interest in that property for the remainder of your life. This allows you to give your property to another person, but retain a legal interest in that property, so you can collect rents or even live there for the remainder of your life. Upon the passing of the person holding the life estate, the deed will automatically transfer to the person or persons that have been designated on the deed to receive your property. The two main reasons for a life estate deed are to transfer your property to your loved ones during your own lifetime while retaining your ability to live there or receive income from that property, and at your death to avoid probate court.

 

▪   Guardianship Proxy:

▪  A Guardianship Proxy allows you to choose a family member, friend or trusted third-party individual to serve as your guardian, in the future in the event of your incapacitation. A situation where a Guardianship Proxy would be of extreme importance, is when you are first diagnosed with Alzheimer’s disease or dementia, but still have your mental faculties and legally able to appoint a guardian to administer your affairs.

 

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Botelho Law Group