Estate Planning & Probate

A "Will", or a "Last Will and Testament", is a document made in which a person, who is often referred to as the "testator," sets forth what is to be done with his/her property after his/her death. In addition, a Will may appoint someone to serve as Guardian of any minor children upon your death.

For most people, there are two primary reasons for drafting a Will: (1) to avoid the state appointing someone other than the person you desire to be the Guardian for your children upon your death; and (2) to avoid your property from being given to someone other than the person or persons you want.

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Massachusetts Law allows parents to designate someone they trust, who understands what their wishes would be while they are incapacitated, to be a temporary guardian of their children in the event of an emergency. The manner in which you can designate such a person is by signing an Emergency Guardianship Proxy.

The Massachusetts Emergency Guardianship Proxy Statute provides security and peace of mind to parents by ensuring that they know who will take care of their children if they are unable to do so. The purpose of an Emergency Guardianship Proxy is also to provide others, such as teachers and health care providers, with the security of knowing who can speak for a child's parents if the parents cannot speak for themselves because they are unconscious for some reason.

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By signing a "Durable Power of Attorney" anyone can authorize another person, presumably someone who is absolutely trusted, to manage his/her business and financial affairs.

Because of the extent of the authority a Durable Power of Attorney can grant to someone else, you should be absolutely sure that when you sign such a document, that you absolutely understand its importance.

If a person becomes disabled or incapacitated, and can no longer manage his or her financial and business affairs, a court will often appoint a guardian or conservator to manage his or her affairs unless the person has executed a Durable Power of Attorney to designate someone to manage his/her affairs.

Many people have found that it is preferable to have a Durable Power of Attorney included with their Estate Plan in order to name someone they trust to manage their affairs if they are incapacitated.

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Massachusetts Law allows any person to designate someone they trust, who understands what their wishes would be if they could communicate, to be their Health Care Agent. The manner in which you can designate such a person is by signing a Health Care Proxy.

The Massachusetts Health Care Proxy Statute provides security to the person needing medical care, and also to health care providers. The purpose of a Health Care Proxy is to provide health care providers with a method by which consent to medical care can be given to the health care provider when the patient is not able to communicate.

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It is important to preface any remarks about "Living Wills," or "Advanced Medical Directives" as they are often called, by alerting people to the fact that in Massachusetts these documents, in and of themselves, may not be legally binding. Unlike the Massachusetts Health Care Proxy Statute, which gives legal status to Health Care Proxies, there is no statute in Massachusetts that gives any legal status to "Living Wills."

However, by signing a Living Will, you are making a powerful statement regarding what your wishes would be under certain circumstances, such as being in a vegetative state.

A typical Living Will states what your wishes would be in the hypothetical event that you are either comatose or in some type of persistent vegetative state and your doctor states that there is no reasonable expectation of your recovery from physical or mental disability, and whether you wish to be kept alive by artificial means, such as life support or other "heroic" measures.

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The Health Insurance Portability and Accountability Act of 1996 (HIPAA) mandated the establishment of national standards for electronic health care transactions and national identifiers for providers, health plans, and employers. It also addressed the security and privacy of health data.

Basically, in order for anyone (including family members) to have access to what would otherwise be private health care information you need to authorize the release of such information to that person in writing by signing a "HIPAA Release Form" that complies with the HIPAA Law.

You may wish to sign a release authorizing the release of your private health information in advance to a spouse, or to your Health Care Proxy, so that person can have access to your health information in the event you are incapacitated and unable to make your own health care decisions so that they will be able to make informed decisions.

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An Estate of Homestead is a type of protection for a person’s residence, in the form of a document called a "Declaration of Estate of Homestead". The form is filed at the Registry of Deeds in the county where the property is located, referencing the title/deed to the property. It allows homeowners in Massachusetts to protect their property for up to five hundred thousand dollars ($500,000) of the value of equity in their home, per family.

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A Trust is basically a legal arrangement where someone entrusts some property to someone else for that person to manage that property for the benefit of others.

The person managing the property is usually called the "Trustee" and the person or persons benefiting from this legal arrangement are generally referred to as the "Beneficiaries."

This basic arrangement can be a very powerful tool when used wisely, and may serve the fundamental basis for many aspects of estate planning.

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The actual cost of drafting your estate plan depends on the complexity of your family and financial situation. Since this cost may vary from client to client, and most clients want to have an up-front cost estimate before engaging an attorney. At Moniz Law Office, P.C., we offer our estate planning clients a one hour free initial consultation. At the end of the one hour free consultation, our estate planning attorney will give you a reasonable estimate of the cost of handling your estate plan. This way we can assess your family and financial situation at no cost to you; and you can decide whether you want to continue based on the cost estimate.

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As a general rule, we suggest reviewing your family estate plan every three to five years. It is also highly recommended that a review of your estate plan take place whenever a "life-changing" event occurs, such as the birth of a new child, a marriage, a divorce, retirement, an inheritance, winning the lottery, etc.

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If you do not have a Will, the laws of the Commonwealth of Massachusetts have a "default" estate plan for you. These laws of "intestacy" or "intestate" distribution prescribe both the persons to whom your estate will pass, and how those people will share your estate. In addition, amounts to be distributed to your children may involve a cumbersome and costly legal guardianship if the children are under the age of 18 at the time of your death.

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Administration of an estate involves the collection of assets, payment of liabilities, and distribution of property to beneficiaries or heirs. Administration of an estate is supervised by your County's Probate Court, whether you die with a Will or you die intestate. An Executor or Administrator is appointed to serve as the primary representative of the estate, and he/she is responsible to administer the estate for the benefit of the heirs or beneficiaries.

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Of course, you are free to use these commercially available forms or software; however, you should know that pre-printed forms and "fill in the blank" software are typically not designed to address your unique situation. Also, these forms are usually written in such a way that they apply in most jurisdictions in the United States, but may not comply with the specific probate laws in effect here in Massachusetts. Ultimately, you may be taking the risk that legal documents produced in this manner will not be recognized by the courts, and your wishes may not be carried out in the manner you desire.

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The old adage, "you get what you pay for" couldn't be more true than when attempting to draft legal documents, such as a Will, power of attorney or health care proxy without the assistance of an attorney. You should remember that these legal documents are ultimately intended to be used either in a court or in a lawsuit setting where inaccuracies and mistakes could result in legal fees that will in all likelihood be much greater than the dollars spent today on sound legal counsel to properly draft documents that comply with the law and express your wishes.

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