If you do not have an estate plan in place, it’s time to begin planning your estate with the advice and insights of a Cape Cod estate & trust administration attorney. You will encounter a variety of legal terms as you begin planning your estate, so you will need to know the definitions of these terms.
What, for example, is the definition of an executor? A testator? What are trustees and guardians? What is a beneficiary? How do these roles differ? What parts do they play in the probate process?
If you will keep reading this brief introduction to estate planning terminology, you’ll learn the answers to these questions. You’ll also learn the details about executors, trustees, guardians, and you will find out more about the probate and estate planning processes.
Do You Need to Prepare a Last Will and Testament?
A will – that is, a last will and testament – is a legally enforceable document that articulates “your will,” meaning your directions for what happens to your assets and properties upon your death. So long as you’re legally competent and still alive, you can change your will as you wish.
Other legal documents may additionally be part of your estate plan. Everyone’s circumstances are unique, so the documents you need will depend on your personal circumstances and requirements. An estate planning lawyer can assist you with preparing a customized estate plan that’s right for you.
If your will does not designate an executor, a Massachusetts court will designate a person to wrap up your estate. Usually, the court will name a close family member, but if no relative is apparent or available, a court could name a total stranger to be the executor of your will.
Your probate or estate planning attorney should ensure that you have selected an appropriate individual to be the executor of your will.
What Is a Testator?
In Massachusetts, your will must be written and on paper – a “hard” copy. “Testator” is a legal term for someone who makes a will. When you create a will in Massachusetts, you must:
- Determine what assets and properties will be included in the will.
- Determine who will inherit those assets and properties.
- Select an executor who will manage your estate.
- Select a guardian who will care for your minor children (if the worst should happen).
- Also, select a person who will manage the property of your children.
- Create your will with the advice and insights of a Cape Cod estate planning lawyer.
- Sign the will in the presence of two witnesses.
- Store the will securely.
What Does an Executor Do?
When you prepare your will, you will select someone you trust to act as your will’s executor. Your executor will have the duty to manage and administer your estate and to ensure that your beneficiaries receive your assets and properties as you have instructed in the will.
The executor of your will must be a person who’s dedicated to protecting your interests. In fact, your executor should be a person you trust with everything you own, because trusting that person with everything you have is precisely what you’re doing when you designate an executor.
Specifically, the executor of a will is responsible for:
- general oversight of the entire probate process
- filing the appropriate legal paperwork with the probate court
- managing the deceased person’s assets
- notifying the estate’s beneficiaries and creditors
- paying off the estate’s bills, debts, and creditors
- defending the deceased person’s will against challenges and lawsuits
In Massachusetts, estate executors can receive the legal advice and help they may need by contacting a Cape Cod estate planning attorney.
What Is a Trustee?
A trust gives one or several trustees the legal ownership of the trust’s properties and assets on behalf of the beneficiary or beneficiaries. If you establish a trust, you’ll need to name a trustee to manage that trust, but a trustee does not have the same obligations as the executor of a will.
Several types of trusts may be established in Massachusetts, but the primary purpose of any trust is to preserve the properties and assets in the trust for the beneficiary or beneficiaries. The creator of the trust may spell out whether the trust’s properties and assets are transferred over time, upon the creator’s death, or after the beneficiary or beneficiaries reach a particular age.
Many trustees will have questions regarding their role. If you are designated as a trustee in Massachusetts, a Cape Cod estate planning lawyer can answer those questions for you and address any of your other trust-related concerns. Specifically, a trustee is responsible for:
- locating, gathering, and protecting a trust’s properties and assets
- keeping track of the trust’s liabilities, properties and assets, and creditors
- filing necessary tax returns and ensuring that taxes owed by the trust are paid
- moving properties and assets to the beneficiary or beneficiaries as directed by the trust
What Is a Guardian?
Massachusetts courts may designate a guardian for an incapacitated adult or for a minor in certain situations. Parents may designate a guardian – someone who will care for their minor child or children if the worst should happen – in the text of a will or a trust.
If a minor child’s parent or parents cannot for any reason properly care for a child, or if an adult becomes incapacitated, a concerned adult may submit a Petition for Guardianship to the court. Massachusetts courts may name a guardian for an adult who is disabled, incapacitated, legally incompetent, or not able to make his or her own decisions.
A guardian has extensive authority to make decisions for a minor or an incapacitated adult, so the courts set exacting standards for guardianship. Prospective guardians must prove they are fit and able to serve as guardians and must pass an extensive background check.
Guardians, executors, and trustees must meet all of the requirements spelled out by Massachusetts law. The task may seem daunting, but you can ask a Massachusetts estate planning or probate attorney to guide, advise, and direct you as a guardian, trustee, or executor.
Who Should Be a Guardian, Trustee, or Executor?
When you name a guardian, trustee, or executor, the most important quality you should look for is trustworthiness. Trustees and executors should also be individuals with some financial knowledge and experience.
Guardians – whether they are the guardians of minors or incapacitated adults – must be patient and compassionate individuals. If they have previous experience as caregivers, that’s a plus.
When you establish a will or a trust, or if you are filing a Petition for Guardianship in Massachusetts, do not try to do it alone. Any mistakes that you make could be costly or could substantially delay the process. Working with a probate or estate planning attorney ensures that your will, trust, or guardianship will accomplish its purpose and comply with Massachusetts law.