Estate Planning FAQ

Here is a list of estate planning frequently asked questions and questions people usually have around probate and trust settlement. The questions and answers always assume a "typical" case, and almost no case is typical. Nothing here should be construed as or a substitute for legal advice from a qualified attorney. If you or your family have any particular questions, please contact us for an appointment to help answer to your questions.

Question: How much money do I need to have to know I need an estate plan?
Answer: The real question is – how much is enough to lose ? Or better yet, how much do you want to protect for your loved ones. Frequently, people do not think they have a considerable "estate" and don't need to do any planning. Estate planning is an act of love.   If you have a plan in place, when your loved ones are grieving don't need to do as much and your affairs are in good order. Any amount is enough to protect. But, certainly, if you own a home; have retirement assets or have children – you should consider doing some form of estate planning. Additionally, if you have minor or college age children or your natural family is not the intended beneficiary of your estate, planning is essential.

Question: My loved one died, what do I do now?
Answer: Consult a lawyer. While you do need to allow yourself to grieve and be comforted by those around you, sometimes there are certain time sensitive matters that need to be dealt with by a professional. If a probate is needed in Massachusetts, you have thirty days from date of death to file the Will with the appropriate Probate Court or begin other proceedings. If there are pressing concerns, we can begin sooner with a temporary appointment. For more information on Probate – see that tab.

Question: I am named as a Trustee in a Trust, what does that mean?
Answer: That means you have a legal fiduciary duty to act prudently, follow all instructions in the trust and generally handle matters in the best interest of the Trust's beneficiaries. It carries a wide variety of responsibilities depending on the type of trust and depending on what state laws govern the Trust. You should bring a copy of the Trust with you to discuss with one of our attorneys who can help explain your responsibilities under your Trust.

Question: How often do I need to update my estate plan?
Answer: We recommend that all clients re-visit this estate plan annually. In fact, we offer an Annual Maintenance Program to help clients easily check in to see if there are any changes in their Lives; in the Law or in our Learning about best practices. If this is not done, at the very least we recommend clients update their plans after major life events such as a marriage or birth of a child. There are other events such as a sale of a business, moving out of state, and significant changes in assets (like buying or selling a home) that warrant review.

Question: What happens if I do not have a Will?
Answer: Each state has comprehensive laws that will determine what happens to your property when you're gone if you've not done an estate plan. The process is called intestacy probate. Typically, your property will pass to your closest relatives and family. This process is cumbersome for the survivors and will wind up being costly to your estate. Sometimes intestacy laws may apply in ways that do not reflect your intentions at all. In addition, not having an estate plan means that there are many missed opportunities to plan for tax consequences, protect assets or establish guardianships for minor children.

Question: How much time does it take to settle an estate? Trust?
Answer: It is not everyone's favorite answer, but it depends. It depends on how up-to-date the estate plan documents are; what they say; how well they are drafted and whether the family and loved ones understand them (or feel a need to contest them). We find, as a general matter, that a fully funded Revocable Living Trust is the easiest and quickest type of estate to settle for a family. A simple will, often takes the longest, particularly if it is out of date. Additionally, if there are trusts involved, trust settlement can involve considerable work if the trusts are not fully funded before death. Each case is different. And, with all the facts, we can give you a better idea of what the process and timetable would be for you and your family.

Question: If I live out of state, can you help with my estate planning?
Answer: Yes. Although we do most of our estate planning for Massachusetts residents, we do work with people around the country. If you are a resident in another state, we can work with you but may need to collaborate with an attorney in your state, particularly as it pertains to real property.  Lawyers in our firm are admitted to practice in Massachusetts, New York, and Washington, D.C.  We belong to a national group of attorneys called Wealth Counsel and we can help you find someone locally if we are not able to best serve you ourselves.

Question: Can I leave something other than cash (like valuable antiques or art) to a Charity?
Answer: Generally, yes, assuming the Charity is able to accept the gift. There are many planning techniques to leave unique assets like real estate, individual stocks, retirement accounts, artwork, antiques, and other tangible personal property to a charity. When properly done, this can also save you (or your estate) certain taxes – like capital gains taxes and give you (or your estate) additional income (or estate) tax deductions. There are also interesting ways to use life insurance to enhance charitable giving. See our Charitable Giving tab for a broader discussion of options for you to consider. We encourage you to contact one of our attorneys to discuss these alternative choices for charitable giving.

Question: Since your offices are in Boston, do you only work with clients in Massachusetts?
Answer: We have clients all over the state and country. Most of our clients come from Suffolk, Middlesex, Essex, Plymouth and Norfolk Counties. Of course, if you live in Worcester, Hampden, Hampshire, Barnstable, Dukes, Bristol, Berkshire, Franklin or Nantucket counties, we are able to work with you but recognize there may be some inconvenience for face to face meetings. We value our client relationship, so we will want to establish a good working relationship with the right balance of meetings and conversations. Most of our meetings do happen in our Boston office. We strive to strike the right balance with our clients and will plan the meetings that will be convenient for train or ferry schedules. After an initial meeting, however, much of the work can be done remotely via phone, fax and e-mail.

Question: What happens if I outlive my pet that I have created a Pet Trust for?
Answer: If the Pet Trust has been set up properly, that gift would normally lapse if you survive your pet. There are really a variety of choices you could make. You could choose to set aside some amount for the care and well being of your pet and in the event it were not all used up, it could be donated to a local animal shelter or other animal charity such as the ASPCA or to any beneficiary you choose.

Question: Do my kids have to know what I've decided to leave them in my estate plan? Can you help me explain this to my kids?
Answer: We are not able to disclose details of your estate plan to anyone without your permission. This would include your children. We often encourage families, however, to have a family meeting to discuss estate plans and how things will work after your passing. Usually in those meetings we discuss the mechanics of how the plan will work, and do not typically disclose the specific bequests or amounts of those bequests. If, however, there is considerable wealth being passed along to another generation, we often suggest some counseling with professional wealth counselors to help families learn how to discuss these delicate issues.

Question: How do I make sure my granddaughter gets a certain pair of earrings she has always liked?
Answer: You can always put such a bequest in your Will or your Trust. We also include in our estate plans a Memorandum of Tangible Personal Property. This Memorandum allows you to specify who you would like your personal property distributed to, such as the special pair of earrings for that lovely granddaughter.

Question: How do I change an Irrevocable Trust I created?
Answer: It's really, really difficult. The assumption is that an irrevocable trust is just that – not revocable – meaning, not changeable. That said, if circumstances change such that the purpose of the trust would be frustrated by not making a change – then, often a change can be made. This will usually involve needing to go to court to get a Judge's approval and if there are charitable beneficiaries involved, sometimes too the approval of the Attorney General's office is required. More modern (well drafted) trusts provide for reformation of trusts by use of a Trust Protector. When properly drafted, this mechanism may avoid needing to go to court to make changes. You will always want to carefully consult with an attorney for these matters.

Question: Can't I just download a will or trust off line?
Answer: Yes. And, it may work. The problem is, you may never know if it doesn't. Only your loved ones will know and only after you're gone. Of course, we are biased on this, but we tailor estate plans to fit individual goals and family needs. A downloadable document may not provide you the protections or options that we are able to provide. And, more importantly, you'll have peace of mind if you work with a professional. Also, beware of the hidden costs in actually administering the form documents after you're gone. These too, can be considerable.

Question: I am gay and married in Massachusetts, can't I just have an estate plan like my straight neighbors?
Answer: It depends. The United States Supreme Court ruled that state laws banning the recognition of same-sex marriages are unconstitutional, making same-sex marriage legal in every state. While gay and lesbian couples may now enjoy the same state and federal benefits of marriage as their straight neighbors, there are other issues to consider. Just like many opposite-sex couples, couples in same-sex relationships may wish their individual property to pass to their surviving spouse during the survivor’s lifetime, but not to that person’s family after second death. Perhaps both wish their property to pass to charities as opposed to family members. It will take careful planning to ensure your property is transferred to whom you wish, not just to whom the state directs. While same-sex couples may still have some unique issues regarding children born through assisted reproduction, many other estate planning concerns are not limited strictly to same-sex couples’ needs. What is important is to consult with a professional who, without bias, will listen to your story, and be sensitive to your individual needs. Please contact us for an appointment.

Disclaimer: The information provided in this FAQ section and throughout the website is offered for informational purposes only. Nothing about these questions should be considered legal advice. Please review our Terms of Use policy closely for additional information. Your individual circumstances and facts can dramatically change what legal advice may be offered. You should consult with an attorney.

The premiere law firm of Squillace and Associates serves the gay and lesbian community in the Boston Massachusetts area including Allston, Brighton, Back Bay, Bay Village, Beacon Hill, East Boston, Roxbury, South End, Dorchester, Roslindale, Jamaica Plain, Hyde Park, West Roxbury, Mattapan, and Charlestown and all of the Boston Metro areas including Cambridge, Somerville, Brookline, Chelsea, Medford, Everett, Watertown; South Shore areas like Quincy, Braintree, Milton, Hingham, and Cape Cod: Metrowest areas like Lexington, Concord, Wayland; and North Shore areas like Melrose, Stoneham, Reading, Andover.

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