Estate Planning and Probate

"Everybody has got to die,
but I have always believed an exception
would be made in my case."

William Saroyan

This sentiment seems to be supported by the current trends in the United States when it comes to estate planning. For instance, recent statistics indicate that:

  • 55% of Americans die without a will or estate plan
  • 25% of people over 75 have no will or estate plan
  • 92% of people under 35 have no will or estate plan
  • 50% of parents have no will or estate plan

Do you see yourself in one of these statistics? Is your estate plan all set to go in the event something happens to you? Or, is it on the list of things you know are important but that you just can’t seem to get done?

It’s certainly human to delay putting together an estate plan when it means having to face your own mortality. Maybe you think there are just too many decisions to be made and it overwhelms you. Maybe you are not even quite sure what documents are included in an “estate plan.” Maybe it’s some other reason entirely.

Let us help.

This information brief explains what exactly is an estate plan and what documents are included in it to protect you both while you are living AND once you pass away.


Core Document #1: A Will

A will, sometimes called a last will and testament, is a document that states your final wishes in terms of who you want to inherit your assets. This includes giving your beneficiaries anything from your home or property to your investments to your jewelry or stamp collection.

If you have children, you can also name guardians in your will. These are the people who would care for your children if you should pass away before they turn 18. Without a guardianship nomination, your family may find itself fighting in probate court over who will take responsibility for the minor child(ren), or worse, someone may become guardian that you did not want.

If you die without a will, it means you have died “intestate.” When this happens, the government will determine what becomes of your assets, often dividing them in ways you wouldn’t choose if you could. And you can choose by working with an attorney to have a will drafted and properly executed as part of your estate plan.


Core Document #2: A Durable Power of Attorney

A Durable Power of Attorney is a legal document that allows for a trusted friend or relative to make financial and business decisions for you, the Principal, should you become incapable of managing your own affairs. A Durable Power of Attorney is activated right when it is signed. Power of Attorney documents allow your appointed Agent (aka “Power of Attorney”) to address important matters like paying bills, managing investments, accessing online accounts (such as email and Facebook), and running a business, if you have one.

The Durable Power of Attorney we just described is considered to be “non-springing.” It is important for you to know that there is also a “Springing Power of Attorney” which “springs” into action only after a specific event occurs. Typically, the “event” occurs when two doctors agree that you are incapacitated. However, the determination of incapacitation can be tricky. Sometimes doctors disagree; sometimes people have good days and bad days or particular parts of the day that are troublesome, such as the “sundowning” which sometimes occurs with people with Alzheimer’s.

On the other hand, once you sign and execute a Durable Power of Attorney, it is immediately in effect. You can continue to manage your own affairs until such time as you are unable and you need your Agent to take over. You can also have your Agent step in for you as needed, such as when you are perhaps traveling cross country as part of your bucket list and there are issues at home that need tending.


Core Document #3: A Health Care Proxy

A Health Care Proxy is a legal document that allows you to name someone you trust to make important health and medical decisions for you should you become incapacitated and unable to speak for yourself. This person is your “Health Care Agent.” Any individual over the age of 18 can be appointed as your health care agent; you can have more than one agent (e.g., your three children); and you can have alternate or successor agents. Successor agents would step in if your Health Care Agent is unable to act on your behalf when and if the need arises. The only exception to this rule is that you cannot appoint a health care facility administrator, operator, or employee unless they are in some way related to you.

Once your Health Care Proxy is in place, conversing with your health care agent(s) about your health and medical treatment preferences is crucial. Your health care agent will make decisions for you taking into account your wishes as you’ve relayed them to him or her and their understanding of your religious and moral beliefs. Therefore, s/he should know what treatments you would and would not wish to receive.

This includes your views on life-sustaining treatments. Make sure you know the long list of treatments that are considered “life-sustaining.” If you do not wish to have life-sustaining treatments like a machine to breathe for you, for example, do you wish to still have hydration (water to drink if you are thirsty or IV fluids)? It’s not always easy to make these decisions but it is worth spending some time reflecting on your end of life wishes in this area.

While you are able to communicate your wishes, you still call all the shots. You can even override anything that you have written in your Health Care Proxy (or Living Will) in case you change your mind.

Once your Health Care Proxy is written and executed, you should provide copies of the document to your health care agent(s), primary physician, and others who are important to your health care decision-making. Your Health Care Proxy should be signed in the presence of a notary public and two witnesses other than your health care agent and alternate agent.

In conjunction with your Health Care Proxy, you can also create a Living Will. While technically not binding in Massachusetts, a living will is a description of the medical care you wish to receive if you become incapable of speaking or in some way incapacitated. It can serve to capture the discussions you’ve had with your Health Care Agent about your wishes and can be a great reference point during what can be particularly stressful times.


Core Document #4: HIPAA Releases

HIPAA Releases are also part of the five core estate planning documents. HIPAA, the Health Insurance Portability and Accountability Act, was created in 1996 to protect the privacy of your health information. The act prohibits health care providers from releasing medical information about you unless you sign a medical release form allowing them to do so.

Your signed HIPAA medical release forms include the names of all the people you would like to have access to your medical information. Having these forms in place is especially important in the event you become unexpectedly incapacitated in some way and need the immediate help of your family members and/or friends.


Core Document #5: Final Disposition Instructions

Part of your core estate planning documents also include Final Disposition Instructions. The instructions listed in this document indicate the person or persons you would like to carry out your wishes as they relate to:

*your remains". Do you wish to be buried? Cremated? If so, how do you want your ashes kept or disbursed? Are you leaving your body to science?

*whether you have any funeral or burial arrangements already in place. For example, an open or closed casket if you desire a wake, a burial plot in your town’s cemetery or next to where your parents are interred.

*the type of services you want (if any). Do you want your favorite songs played at your service? Donations to a local charity in lieu of flowers? A party instead of or in addition to a formal service?

To be valid, your Final Disposition Instructions must be signed by you in the presence of a notary public and two witnesses. You can revoke this document anytime by destroying it, revoking it in writing, and or creating and executing a new set of Instructions

If the person you have chosen to carry out your wishes agrees, it is expected that s/he will follow through on your instructions when the time comes to celebrate your life after you pass.

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