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.

  

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.

A New Era

On March 31, 2012 Massachusetts entered into a new era of estate planning and administration. Massachusetts has totally revamped its probate laws by adopting the Massachusetts Uniform Probate Code (MUPC). The changes to te law are vast and this article in no way addresses each change. The purpose of this article is to briefly cover the more important changes.

 

Administration of Estates

Previously, many people were confused by the jargon used in the administration of estates. What is the difference between executors, temporary executors, administrators, and special administrators? Worry no more! These terms have been done away with and all replaced by the simplier title of personal representative. 

 

In addition to the title change, there are now more ways in which the estate can be administered:

1.   Informal Administration  : this option is the simpliest and allows for a personal representative to be appointed as soon as seven (7) days after the person applying for appointment sends notice by mail to the interested persons specified in the statute. This is the fastest and least expensive form of administration because it does not require court supervision. The personal reqpresentative is still required to prepare an inventory, publish notice in the newspapers and circulating accounts, etc., this does not need to be done under the supervision of the court. Informal administration is available to estates of any size; however, this form of administration is the best option when the beneficiaries are in agreement regarding the distribution of the estate.

 

2.   Formal Administration  : As its name suggests, this form of administration is more formal and more closely resembles estate administration under the old law. Formal administration requires the filing of a petition resulting in formal notice to be ordered by the Court, with an opportunity to object. This of course means that this process takes more time. This type of administration is the better option when there are legal questions about the proceedings, the possibility of controversy, or if questions about a previously commenced informal administration arise. 

 

3.   Supervised Administration  : Supervised administration should only be used for the most controversial and complicated estates as it requires constant supervision by the court. 

 

4.   Voluntary Administration  : The final type of administration is available only to estates valued at less that $25,000, plus the value of one vehicle and includes no real estate. This administration has very little court involvement. If no probate is commenced, after thirty (30) days a statement may be filed with the Court. The signatory on the statement gives an oath that s/he will administer the estate according to the will, or as provided under the intestacy law.

 

Guardians and Conservators

Under MUPC the law distinguishes between a guardian and a conservator of a minor child. A guardian has control over the person and the conservator has control over the minor’s property. A parent should still name a person or persons to fill these rolls in the will, and the same person can be named as both the guardian and conservator. MUPC also allows a parent to name a guardian and conservator in a separate document so long as the separate document is witnessed by two people. 

 

Disposition of Tangible Personal Property

One of the most substantial changes brought about by MUPC is the ability for a testator to leave a memorandum of tangible personal property and the recipients of such property. This document can be separate from the will and can be changed without disrupting the will. The memorandum must describe the property and recipients with reasonable certainty and be signed. This document can be created either before or after the will as it is now a totally separate and binding document.

 

The Effect of Marriage and Divorce

Pre-MUPC, any existing will was automatically revoked upon marriage unless it is clear that the will was made in contemplation of the marriage. MUPC does require such automatic revision. Rather, the will survives and any bequests to descendants of the decedent are preserved. If any part of the estate was left to non-descendants of the decedent, these assets are used to satisfy the surviving spouse’s intestate share. This may be avoided, however, if it can be shown that the decedent otherwise provided for the surviving spouse in another manner, such as through a life insurance policy. 

 

Previously, the law stated that divorce partially revoked wills and unfunded revocable trusts of divorcing spouses so that property transfers to the ex-spouse, as well as nominations appointing the ex-spouse as executor or trustee, are cancelled. MUPC broadens this rule to have the same canceling effect on non-probate assets, such as life insurance policies. MUPC also revokes bequests to relatives of the ex-spouse. If the parties re-marry, the revoked provisions are revised; however, it is always advisable to update your estate planning documents after any major life event, including divorce and marriage.

 

Conclusion

As mentioned above, this article is not intended to be exhaustive of the changes to probate law in Massachusetts since the adoption of MUPC. The above-mentioned is a brief overview of some of the changes that will have the greatest impact on the greatest number of people.

Why Do It Yourself Wills Spell Trouble

Nowadays you can find everything you need online from clothes and books to legal documents.  Even better than the convenience of the internet are the prices.  You can generally find anything you want for less online.  This includes legal documents.  A simple Google search for “sample will” will return thousands of results – any one of which you can click on and be guided through writing your will.  Easy . . . Fast . . . Cheap . . . DANGEROUS!  You are not getting the same service from an internet form as you would from a licensed attorney.  These websites cannot give you legal advice.  They are not designed to look at your wants and needs and devise an appropriate estate plan.  All these websites provide is a bunch of blanks for you to fill in and it spits out a generic will that may or may not be effective.  Your information is entered into the generic form regardless of whether it makes sense or is a good idea. A website cannot recommend that rather than having assets tranfer directly to a person, you may be better off having those assets transferred into a trust with that person as the beneficiary.  A website cannot advise you about potential tax consequences.  A website does not recommend other documents that will comprise a full estate plan, which includes a number of other documents in addition to the will.  The long and the short of it is that websites do not provide the personalized service and advice you will receive from a licensed attorney.  Online document services only spit out “one-size-fits-all” generic documents that may not do anything at all.  These services cannot guarantee a specific legal result, which could result in a huge mess for your loved ones when you are gone.  All these services can gurantee is a good price.  Unfortunately, there is no way for an individual to know whether the will they created using an online document service is effective.  Their family will know, though, when they are dealing with cleaning up the mess created by a DIY will.  Don’t risk it.  Consult an attorney to discuss your estate planning needs.

Written by Catherine Taylor, Esq.