If you have loved ones, a home, or a business, but you do not have an estate plan, it’s time to consult a Massachusetts estate planning attorney. You should begin the estate planning process now, while there is no doubt that your mind is sound and that your decisions are voluntary.
As we age, we all expect to experience a slow physical decline. Many of us never experience a decline in our mental abilities, but for others, the mental decline is severe, and in some cases, an elderly person may be deemed legally incompetent.
In Massachusetts, people who enter into contracts and agreements, and those who are drafting wills, living trusts, and other estate planning documents must be competent if the documents they create and sign are to be legally binding.
How is Competency Defined?
Competency is a legal term which means that someone has the sound mind and mental capability to act legally on his or her own behalf, to manage his or her own financial affairs, and to make rational and thoughtful decisions regarding his or her own healthcare and medical treatment.
Competency isn’t everything or nothing. “Diminished capacity” is the gray area between full competency and complete incompetency. Someone who is competent to execute a last will and testament may be incompetent only hours later, but the will is nevertheless legally binding.
Obviously, when you plan your estate, you need to understand the legal documents that you are signing, why the documents are needed, and what they accomplish. In fact, slightly different competency standards are required for different types of legal documents.
What is “Testamentary” Capacity?
Testamentary capacity is the ability to make a valid will. In Massachusetts, to have testamentary capacity, a person must know the extent of his or her property, must know which persons may have legal claims on the property, and must understand what the act of executing a will means.
A slightly lower standard applies when you designate someone to make healthcare decisions on your behalf. You simply need to know and trust the person you are naming to make those decisions when and if you cannot competently make them for yourself.
When making a gift, the giver needs to grasp the effect of the gift on its recipient. To agree to a contract – including marriage or divorce – you should be able to transact business and manage your financial affairs competently.
Why is Now the Time to Plan Your Estate?
Disputes over competency often emerge among family members after someone’s death. Family members who don’t inherit what they think they should may claim a decedent was incompetent – or unduly influenced due to incompetence – when a will or living trust was signed.
In response, other family members may seek to uphold the validity of duly executed estate planning documents. The determination of a decedent’s competency at the time a will or living trust was signed requires the skills of a good Massachusetts estate planning lawyer.
If you are involved on either side of such a dispute, reach out to the right attorney as early as possible. To prevent such disputes from emerging after your death, you should begin the estate planning process now.
How Should You Plan Your Estate?
While now is the time to plan your estate, don’t do it in haste. You’ll need to make thoughtful and informed decisions to ensure that your wishes and instructions are faithfully executed when the time comes.
The right lawyer can provide not only sound estate planning guidance but also insights that you may not otherwise consider. You may not even be aware of some of the best estate planning options that are available to you.
If you currently have no estate plan, you could end up making hasty decisions in dire circumstances, and your competency in those circumstances could be challenged after your death.
What Should Your Estate Plan Accomplish?
Your final estate plan should express your desires and wishes for your loved ones. Try to develop an estate plan that does not trigger controversy or resentment after your death. Before that happens, talk to your loved ones and explain the reasons for your estate planning decisions.
For many in Massachusetts, a living trust provides genuine, practical advantages, but for others, a last will and testament will be sufficient to satisfy your estate planning needs. For most families, the choice of a living trust is the most economical, despite its higher upfront cost. That is because a Will requires a probate proceeding in court.
The cost of probate is often estimated at approximately five percent (5%) of the estate size. Consequently, the break-even point, where a living trust is more cost effective than a Will is typically when the clients’ net worth is somewhere between $100,000 and $200,000. For that reason we find the overwhelming majority of people prefer to plan with a living trust.
Wills and living trusts accomplish a number of the same goals. If you aren’t a financial expert or an estate planning lawyer yourself, take the time to consult an estate planning attorney who can suggest options that will ensure adherence to your instructions when that time comes.
Whether you choose a living trust or a last will and testament, retain a Hyannis estate planning attorney to assist you with the document. If you don’t, it’s easy to forget important details like the care of your pets or the fate of a treasured family heirloom.
What Other Documents May Be Part of an Estate Plan?
Additionally, you should have a plan for your healthcare and for your finances in case you become unexpectedly incapacitated by an accident or illness.
For financial matters, you’ll need a power of attorney, and for healthcare decisions, you will need a healthcare proxy. Many people also create a living will which specifies in advance the medical treatment you do or do not desire should you become unable to express those choices.
Without a power of attorney or a healthcare proxy, if you become incapacitated, a court may appoint a guardian for your medical decisions and a conservator for your financial affairs.
What is the Role of an Estate Planning Lawyer?
You’ll need personalized estate planning advice. An estate planning lawyer can ensure that your estate plan is easily understood, that no details have been overlooked, and that you consider your estate planning options carefully and comprehensively.
Have all of your questions and concerns addressed by a Massachusetts estate planning attorney. Additionally, your lawyer can discuss your tax and debt concerns, the details of property and asset distribution, and – if you create a last will and testament – the probate process.
Having peace of mind regarding the people you love and their future begins by contacting the right estate planning attorney – before anyone can question your competency.
No one can know what tomorrow holds, so if the people you love are relying on you, take the first step now, and contact an estate planning lawyer promptly.
