Safekeeping of Important Documents

A common question I hear from my clients is: “where should I keep my estate planning documents?” Often, the first thought people a have is to put important documents in safe deposit box. Makes sense, right? Wrong! Unless there is a co-owner on the safe deposit box, no one will be able to gain access to the box or its contents without your permission or court order, and the documents that may provide that permission are in the box! As such, I always advise my clients to not keep their documents in a safe deposit box.

So what other options do you have for safekeeping these documents?

As having the original documents is of utmost importance, it is imperative that the documents are kept in a safe place, but are also accessible. Often, my clients choose to keep the originals at my office with copies at home in a filing cabinet or desk drawer with the location of the original documents noted.

Many times clients will also consider keeping their estate planning documents in a safe, but that presents many of the same problems of keeping the documents in a safe deposit box.

Regardless of whether you choose to keep your estate planning documents at your lawyer’s office or at home, it is imperative that your family knows the location of the documents and how to access them quickly and without delay when they are needed.

 

#estateplanning #will #lawyer

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What Happens to My Social Media Accounts When I Die?

With so much of our lives taking place in the cloud, it is important to think about protecting our digital assets post-mortem. A few online services have a policy regarding what happens to your account, or allow you to select what happens.  For example, Google allows you to “Plan your digital afterlife with inactive Account Manager” which allows you to have your Google data deleted after a selected period of time of inactivity or selected trusted contacts to retrieve your data.  Facebook allows you to designate a “legacy contact” who is able to pin a final post on your timeline after your death. This person cannot log in as you or read private messages, but can respond to new friend requests and update profile and cover photos.

But what about our digital assets, such as our iTunes libraries, e-books, and video games? Are these able to be passed as though they were a vinyl record, leather-bound book, or board game? The answer to that is not so clear. Many companies, such as Apple and Amazon, state in the End User License Agreement when you purchase a digital item that you are simply purchasing the license to use said product, but that you do not actually own that product and do not have the authority to transfer that license to anyone without the express permission of Apple or Amazon. This remains a grey area in the law that is likely to be tested by creative estate planning techniques, such as having the digital assets purchased by a Trust with you and your children as the named beneficiaries, for example.

Many popular social media sites, however, do not have a specific policy like Google or Facebook. Many Social Media providers will only allow the personal representative (formerly known as the executor) to deactivate the deceased person’s account, but will not allow access to private content. The account is owned by the deceased person. As digital assets are a relatively new component to the estate planning puzzle, it remains unclear what these sites will permit if a personal representative is given specific power to access the accounts.

If your social media accounts are not set up to address what happens when you die, your will may leave specific instructions as to your wishes. Instructions may also be left in a trust or power of attorney. I also advise my clients to leave a list with their estate planing documents of their online accounts, usernames and passwords. This eases the difficulty of addressing the digital estate.

Have more questions about protecting your digital assets? Contact Broadbent & Taylor for a free consultation!

THIS POST WAS WRITTEN BY ATTORNEY CATHERINE TAYLOR AND IS FOR INFORMATIONAL PURPOSES ONLY. THIS DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP OF ANY SORT.

 

#estateplan #will #digitalassets #lawyer

Living Will . . . or Won’t?

A living will is an important component to a well-drafted estate plan. This document allows you have some control over medical treatment in the event you lose your decision-making authority. The living will spells out directions as to what you would want done in relation to certain medical decisions if you no longer have the ability to make these decisions yourself.

But there’s a catch…

A living will is not legally binding in Massachusetts.

So why would an attorney recommend a document that has no legal authority? Despite having no binding authority, a living will still holds a lot of value. It provides guidance to the Courts, or the person you have named as your Health Care Proxy, to know what your wishes are in certain situations. It means that your health care at a critical time is not going to be a guessing game and fighting over what you would want. What you want has been spelled out in black and white.

It is very important to name someone you trust to carry out your wishes regarding medical care as your health care proxy. Make sure that whomever you name knows you have named them and have a serious conversation with them about your wishes. Make sure they have a copy of your living will. Although these conversations are not easy ones to have, it will benefit both you and your proxy to know where you stand on these issues before they become issues.

At a minimum, your living will should address the following:

  • What life sustaining treatment do you want?
  • What life sustaining treatment do you not want?
  • Do you want artificial feeding?
  • Do you want medications that may hasten your demise, but make you more comfortable?
  • Where do you want to live out your last days – home or hospital/hospice?
  • Do you wish to be an organ donor?

You may also wish to address whether you are comfortable with receiving experimental treatments. With medical science changing at lightening speed, this could be an important component to your care. See, for example, http://www.iflscience.com/brain/biotech-company-use-stem-cells-reactivate-brains-dead.

Contact Attorney Catherine Taylor to discuss your estate planning needs!

THIS BLOG WAS WRITTEN FOR INFORMATIONAL PURPOSES BY ATTORNEY CATHERINE TAYLOR. NOTHING HEREIN SHOULD BE CONSTRUED AS LEGAL ADVICE OR AS CREATING AN ATTORNEY-CLIENT RELATIONSHIP.

 

Storage of Original Estate Planning Documents

It is important to keep in mind, as our society is transitioning to storing more and more information digitally rather than maintaining reams of paper documents, that not everything can be effectively digitized and stored in “the cloud.”  This is particularly important when it comes to storing your estate planning documents.  

 

The original will is necessary to submit to probate.  If an original of the will cannot be located, it is presumed that the decedent revoked the will, and the estate may pass through the laws of intestacy rather than how the decedent wished. There are situations in which, after lengthy and, likely costly, court proceedings, the court may accept a copy of a will, but this is difficult to accomplish.  The original of your will should be kept in a safe location – such as a safe deposit box at the bank or a fireproof/waterproof safe in your home or office.  Information can be provided to the person named as the personal representative where the will can be found at the time of your death.  Many estate planning attorneys offer to keep the original documents in their office, which is another option if you are uncomfortable holding the documents yourself, but they do not HAVE to be kept with your attorney.  Further, it is important to note that you should not execute more than one original will.

 

Any trust documents should be stored with the will.  You may have copies of the trust documents in an easily accessible location.  Generally, financial institutions will accept copies of trust documents for their records.  If you misplace the original trust documents, they should be re-executed.  

 

Your power of attorney documents should not be kept in a safe deposit box.  The power of attorney document will need to be easily accessible by your named agent, and gaining access to a safe deposit box can be a complex process if you are not the owner.  In addition, a situation could arise where the power of attorney may be necessary on a weekend, holiday, or after business hours.  This could cause unnecessary delay, which may have unintended repercussions.  Your power of attorney documents may be kept in a safe place in your home, or even with the person you name as your agent.  

 

Proper storage and safekeeping of your estate planning documents is critical to ensuring that your carefully drafted estate plan is effectively executed.

  

When should you update your estate plan?

You met with your attorney and set up your estate plan, and now you never need to worry about it again, right?  Wrong!  There are certain life events that warrant having your estate plan reviewed and updated, if necessary.  

 

1.  Changes in your Family.  

Families are ever evolving, and with those evolutions, there may be modifications that you want to make to your estate plan.  You should absolutely have your estate plan re-done if you get married or divorced.  It is also a good idea to update your estate plan if you have had or adopted a child or grandchild.  If a named beneficiary in your estate plan dies, you will want to update your estate plan, even if you have a contingent beneficiary named.  Finally, if you have children that have attained the age of 18, you may want to modify your estate plan to remove guardianship provisions and update the way your children will inherit (i.e. you may no longer want or need a trust in place).

 

2.  Changes in Assets

If your estate has recently undergone a substantial change in value – either up or down, it is a good idea to at least review your estate plan to ensure it still accomplishes what you need it to.  Changes in value could result from buying or selling real estate, inheritances, starting a business, purchasing life insurance, etc.

 

3.  Change in Location

If you have moved to a different state from where your estate plan was originally created, you should definitely have your estate plan updated.  Each state has its own probate and estate laws whose differences can greatly impact your estate.

 

4.  Changes in Probate, Estate, or Tax Laws

Recently, Massachusetts implemented the Massachusetts Uniform Probate Code (MUPC) which introduced significant changes to probate and estate law.  Although wills and other estate planning documents executed prior to the passing of MUPC are “grandfathered in” and are still valid, a previously executed will may no longer distribute your estate as you intend, and it is best to update your estate plan in accordance with the new laws.  A review should also be done when estate tax laws change to make sure that your estate is properly planned to minimize potential estate taxes.

 

5.  You are Approaching Retirement

If you are approaching retirement and/or have reached the age where you are required to start taking distributions from your you should not only meet with a financial planner, but you should also work with your estate planning attorney to ensure that your estate plan is still set up in a way that will accomplish your goals as far as what you want to leave behind for your heirs, while allowing you to live comfortably during your retirement.

 

6.  A Change in Circumstances of Your Fiduciaries

If any of the individuals you have named in a fiduciary capacity in your estate plan – personal representative, guardian, trustees, etc – have passed away, are no longer competent to serve in a fiduciary capacity, or you no longer wish an individual to fill a fiduciary role, you should update your estate plan to account for this.  Although most estate plans include contingent fiduciaries, it is always recommended to have at least two named individuals who are able to fulfill the fiduciary role named in your documents.  

 

7.  It’s Time for a Check-Up

If it has been 3-5 years since you last had your estate plan reviewed by your attorney, it is a good idea to make an appointment to have your estate plan reviewed.  Your attorney will know if there are any changes in the laws or your circumstances that would warrant a change to your existing estate plan, and be able to advise you accordingly.  

 

If you have any questions or would like to schedule an appointment to have your existing estate plan reviewed, please contact Attorney Catherine Taylor at Broadbent & Taylor for your free initial consultation.  (508) 438-1198 or catherine@kbctlaw.com 

Top 10 Reasons to Have a Will

10.  You control who manages your estate.

 

9.  You can make specific gifts to individuals and/or charities.

 

8.  You can establish a trust.

 

7.  You can choose to disinherit an individual.

 

6.  Allows you to minimize potential estate taxes.

 

5.  Simplifies the probate process, making it shorter and less expensive.

 

4.  Life is unpredictable.

 

3.  You control the distribution of your assets.

 

2.  Your spouse / significant other.

 

1. Your children.

What can a living trust do for you?

Living trusts are one of the most utilized estate planning tools; however, they are one of the most commonly misunderstood documents.  

 

So, what can a living trust do?

 

The biggest objective that a living trust can accomplish is avoiding probate.  A living revocable trust can funded with most, or all, of your assets during your lifetime.  The assets are owned by the trust, but you still have control over and use of the assets during your lifetime.  At your death, the trust becomes irrevocable and the assets are distributed to the successor beneficiaries outside of probate.  

 

Avoiding probate not only saves substantial time and money, but it also gives you additional privacy.  Once a will enters probate, it becomes a public document and anyone can access it.  This is not so for living trusts.  

 

Just because living wills are such good estate planning documents does not mean that they are a “one-size-fits-all” tool.  If you have a modest estate and aren’t concerned with creditors or possible will contests, a living trust may be overkill.  Often times a well-drafted will is sufficient to accomplish your goals.  

 

A word of caution: living trusts do not replace the necessity of having a will.  A living trust is just one element of a well-drafted estate plan.  In addition to your living trust, you should have a pour-over will (so anything not included in the trust during your lifetime is transferred into the trust at your death), a living will (also known as an advanced directive), a health care proxy, a power of attorney, HIPAA authorizations, and an appointment of guardianship if you have minor children.

 

If you think that a living trust is something you and your family would benefit from, please contact the attorneys at Broadbent & Taylor today to schedule a free initial consultation.