Estate Planning (Elder Law, Wills, Trusts, Powers of Attorney, Health Care Proxy)

Estate Planning (Elder Law, Wills, Trusts, Powers of Attorney, Health Care Proxy)

Though it can be difficult to begin thinking about one’s own demise, careful planning now can help your family avoid significant time and expense later.  RAWLINS | ASACK assists clients of all sophistication in the drafting of documents such as: Wills; Trusts; Deeds; Durable Powers of Attorney; Health Care Proxy’s; and Declarations of Homestead.

What is an Estate?

An Estate in its most essential form is everything you own. Home, cars, bank accounts, retirement benefits, benefits from employers, personal belongings, grandma’s chinaware and insurance policies. With that in mind, people often underestimate the actual size of their estates.

Why do Estate Planning?

The most common reason people think they need estate planning is to control who will receive their assets at their death. Though that is certainly one important reason to plan your estate, there are variety of other equally important benefits that accompany a good estate plan. In fact, doing an estate plan can be just as important for those things that may occur during a person’s life.

Who should have an Estate Plan?


Certainly, the older you get the more assets you accumulate and the more you begin to contemplate your lineage. This leads to a disproportionate number of estate planning clients in their 60’s and 70’s. However, people of all ages and demographics will benefit from a properly planned estate.

When to Plan?


Like insurance, there is no second chance. At the point in time something happens, it is too late.

Probate v. Non-Probate Assets


Probate assets are those assets that are titled in just your name at the time of your death. For example, a bank account in only your name, a home with a deed that lists just your name, your automobile and a retirement account and/or an insurance policy with no named beneficiary.

What happens with probate assets at your death?

Probate Assets are required to go through the Court Probate process at your death. That process takes time, costs money and defers some control of your estate to the Court. A very typical probate estate can take a year or longer. Filing fees alone (excluding attorney fees, personal representative fees and the value of your time) are in the hundreds of dollars.


Non-Probate assets are those assets with designated beneficiaries or held jointly with others. Examples of non-probate assets include but are not limited to, joint bank accounts, deeds held jointly with others (Joint Tenants or Tenants by the Entirety), retirement and/or insurance policies with named beneficiaries and assets held in trust.

What happens with non-probate assets at your death?

They are passed directly to the Joint Owner or Named Beneficiary. They pass outside of the Court Probate Process. What is often forgotten, is a non-probate asset of a spouse that passes to the other spouse outside of the Court process becomes a probate asset of the surviving spouse if not properly planned for.

Common Estate Plans
(The Good, The Bad and The Ugly!)

1. Doing nothing

A. Your assets will pass at your death as dictated by the Massachusetts legislature (Intestate Succession).

B. You will incur all the time and expense of the Court Probate process.

C. If you have no immediately available funds (non-probate funds) the Personal Representative of your estate or a relative may have to front your estate expenses to get it started or keep it afloat.

D. If your estate is taxable (over 1 million in Massachusetts and 11.18 million, 2018) you will likely pay significant taxes.

E. The process will likely last over a year.

F. Whoever you have left with this mess will curse you!

G. You have provided no protections for yourself if you were to become incapacitated during your lifetime.

2. Joint Ownership

A. If you were able to place every one of your assets under joint ownership (could be possible for spouses, not likely for those who are not married) you will avoid probate.

B. If you have a taxable Estate, likely to pay greater taxes with simple joint ownership planning.

C. Forces those inheriting the Joint Asset to do all the Estate Planning after your death. Doesn’t avoid probate it simply postpones it.

D. For any asset you missed or did not properly title as a joint asset those assets will pass through the Courts as dictated by the Massachusetts Legislature.

E. Can be issues if a surviving spouse remarries and likewise places assets jointly in the names of a new joint owner. This could theoretically disinherit the children of the deceased and surviving spouses.

F. Exposes assets to debts and liabilities of the joint owner.

G. Adding a joint owner can be easy (though you may have to watch for gift tax implications), however, removing a joint owner can be a nightmare.

H. Again, you have provided no protections for yourself or your family while you are still alive.

3. Making Lifetime Gifts

A. Very limited.

B. Only allowed to gift up to $15,000.00 per person (2018), per year, tax free.

C. Income tax issues: Stepped up basis. (parent buys house for 100k, today it is worth 400k. Gives to daughter, who sells it for 400k. Because this was a lifetime gift, Dad’s basis is 100k and daughter will need to pay capital gains on 300k.)

D. Everything that is missed passes through the Probate Court Process. On its own it is an inefficient means of estate tax planning.

E. Not reversible.

F. Provides no protections for you and your family while you are alive.

4. Beneficiary Designations

A. If all assets have beneficiary designations, they will pass outside of probate. Not likely to occur as it may not be possible to have beneficiary designations on everything you own. (i.e. deeds, certain bank accounts, personal belongings, etc…).

B. Those assets without beneficiary designations will pass through the probate process as dictated by the Massachusetts legislature.

C. Not effective for a taxable estate.

D. If your beneficiary is incapacitated when you die the asset may need to go through a different Court process.

E. If your beneficiary dies before you or you both die simultaneously the asset may have to go through probate. If minor children are the named beneficiaries this could require further Probate Court proceedings.
F. Again, this type of estate planning offers you and your family no protections during your life.

5. A Simple Will Only

A. Effectively directs the distribution of your assets at your death.

B. Allow you to select your personal representative.

C. Allows you to nominate a guardian or conservator for children and/or dependents. Get the stepped up basis in the property.

D. Still must go through the time and expense of the probate Court process.

E. Does not effectively plan for the taxable estate.

F. Could again leave a personal representative or family member to front the expenses of the estate.

G. Again, does not adequately protect you and your family during your life.

6. A Will, Trust, Declaration of Homestead, Health Care Proxy and Power of Attorney

A. Avoids Probate to the greatest extent possible.

B. Allows you to choose your Trustee and Personal Representative.

C. Allows you to ensure your assets go where necessary.

D. Allows the Trustee of your trust to do what needs to get done immediately and without any Court intervention.

E. Allows for a Trustee to immediately take control of assets for the benefit of your minor children.

F. Saves on the time and expense of probate.

G. Could provide tax benefits for taxable estate.

H. Provides liability protection.

I. Could provide protection additional protections from creditors (Irrevocable Trust).

J. Provides protection for you and your family if you are deemed incapacitated during your life.

K. In addition to all the benefits above there is almost always a significant cost savings to your heirs/devises.

Protections during life

As mentioned, “Common Estate Plans” offer no protections during your life. However the last Estate Plan noted does offer such benefits. Before going into some of these benefits, it is important to talk a bit about Guardianships and Conservatorships.


When a person is deemed to be incompetent in Massachusetts, they are no longer able to make their own medical decisions. Additionally, no other person (even a spouse) is legally permitted to access your medical records or make medical decisions for you. In such circumstances, you will require a legal guardian.
The Guardianship process requires the filing of several documents with the Court. What is more, there are filing fees, court time and yearly requirements associated with said process. Finally, even after you have obtained a “permanent guardianship” several months later, may still need to go back into Court for to seek Court approval to make certain decisions for the incapacitated person (again, even if they are a spouse).

Health Care Proxy

As opposed to a Guardianship as discussed above, a Health Care Proxy:

A. Allows a person you name to immediately act for you if you are deemed to be incapacitated.

B. Goes into effect either immediately or after certification of your incapacity by one or more licensed physicians.

C. Avoids Court intervention and all the things we have discussed that goes along with that.

D. Allows the Proxy to focus on your care without the burdens of Court.

E. Removes significant time and stress.


When a person is deemed incompetent in Massachusetts they are also unable to make financial decisions and sign financial documents (i.e. endorse checks, sign checks, make withdrawals from accounts, make deposits or possibly deal with insurance.) Unless someone is jointly on the persons assets (and in some circumstances that may not be enough), there may be no one else who can act on behalf of the incapacitated person. Accordingly, that person will require a Conservatorships.

Like the Guardianship process, the Conservatorship process requires the filing of several documents with the Court. There are also filing fees, Court time and extensive yearly accounting requirements associated with Conservatorships. Conservators may need additional Court approval to act in some circumstances (ie selling a home). This additional Court approval will require time, expense and filing fees. Again, similar to a Guardianship, you may be able to obtain certain authority within a few days, however, it will come with a great deal of paperwork, court time and expense.

Power’s of Attorney and Living Trusts

A. A properly drafted and executed Power of Attorney will allow you to select an individual to immediately conduct your financial affairs and make a litany of financial decisions on your behalf if you are deemed to be incapacitated.

B. Requires no Court intervention and often takes effect immediately or upon the determination of one or more physicians that you are incompetent.

C. Additionally, if your assets are placed into living trusts, the trustee or successor trustee will also likely be able to quickly act on your behalf financial if you were to be incapacitated.

D. Trusts may require some extensive accountings than a Power of Attorney however, unlike a Power of Attorney they continue to operated beyond your death.

E. Both in concert can be an excellent tool not only for an older incapacitated person but for families with minor children who will need to quickly and efficiently access funds to take care of children whose parents have become incapacitated.

Declaration of Homestead

A Declaration of Homestead is a simple means of protecting between $250,000 and $1,000,000 in your homes equity. This protection extends to most debts that could be accumulated during one’s life. Some possible exclusions would be those debts obtained through embezzlement or fraud and/or liens from Masshealth for nursing home care.

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