Deciding what will happen to your estate after death is an important conversation, albeit one many of us would prefer not to consider. By ensuring that everything is signed and sealed, you are minimizing the stress and disruption left to your loved ones.
What Is An Estate Plan?
An estate plan refers to a legally binding set of directions, left for your family members and setting out your wishes in the event of your death, or incapacity. They contain a number of documents, including wills and living wills, powers of attorney and health care proxies.
Without any form of will in place, your estate will be taken over by the intestacy laws of the Commonwealth of Massachusetts. This states that:
“Any part of a decedent’s estate not effectively disposed of by will passes by intestate succession to the decedent’s heirs as prescribed in this part, except as modified by the decedent’s will.”
How Do I Compile An Estate Plan?
Dying without a plan in place can be very stressful for those left behind, and may result in a division of your assets which were not your wishes. An estate plan can help to negate this, but it is important that you have included all of the essentials.
There are four main attributes to be included in an estate plan:
● Durable power of attorney
● Living will
● Health care proxy
● Last will and testament
● In some cases, a trust may also be included
What Is Durable Power of Attorney?
A durable power of attorney allows you to authorize a named party, known as an “agent”, to take care of all of your financial matters and concerns. The durable power of attorney will usually become effective as soon as the document is signed (known as “execution”). It will continue until your death, or revocation.
A durable power of attorney will remain in place even if you become incapacitated. The agent will have the power to manage and handle finances, authorize transactions, sign checks, complete tax returns, enter into contracts, buy and sell stocks and shares, deposit and withdraw money, apply for benefits, and even buy or sell property and real estate.
You will also have the option to nominate this agent to act as your guardian or conservator if this is ever required – a guardian is a court-appointed individual who safeguards the physical wellbeing of someone who cannot do this for themselves, while a conservator holds the same role for financial matters.
It is essential that the details of your agent are legally recognized, set down in writing, and official.
What Is A Living Will?
Considering your medical treatment is another important part of compiling an estate plan, and a living will helps with this. The document will list your wishes and preferences when it comes to different medical treatments – for example, if you would like treatment to be withdrawn after a certain time, do not wish to be resuscitated, or do not want any medical intervention to prolong your life.
It is important to note that under Massachusetts law, a living will is not legally binding. It can, however, be a useful indicator of your wishes, and taken into account by medical professionals during treatment.
What Is A Health Care Proxy?
In the event that you become unable to make healthcare decisions for yourself, your appointed health care proxy will take over the responsibility. This is a document which names an appointed individual to act as your proxy, and will include specific instructions and directions, including your living will wishes.
It is important to note that a proxy does not have the power to override your wishes or ability to make your own decisions; they can only act on your behalf if you are unable to do so. Massachusetts law recognizes the legal status of a health care proxy, and a signed copy should be made available to any doctor, hospital and individual you have assigned to act on your behalf.
What Is A Last Will And Testament?
The last will and testament is one of the most important features of the estate plan; without it, your assets could be sent to a probate court, or taken over by intestacy laws. A last will and testament refers to a legal document, which states the wishes of the testator (the person who is preparing the documents) and outlines how they would like their estate to be distributed upon their death.
The will can also be used to name your executor; this refers to the party who will ensure that the contents of your will are adhered to and carried out after your death.
In order for the will to be finalized, there are two requirements:
- You must sign or acknowledge your will in front of two witnesses, and
- Your witnesses must also sign your will
Unlike other states, there is no legal requirement in Massachusetts to notarize your will. Instead, you will be required to make it ‘self-proving’ in order to speed up probate; this allows the court to validate the will, without the need to contact the named witnesses. In order to ensure that your will is self-proving, you and your witnesses need to sign an affidavit before a notary, which proves who you are, and that each party involved knew they were signing a will.
What Are My Next Steps?
Here at Boyd & Boyd P.C., we have made it our mission to aid individuals with all of their estate planning needs. If you have questions, or wish to take the first steps, get in touch with our team today, and see how we can help.