Deland on Estates and Elder Law

Friday, April 4, 2008

Why not Just a Simple Will?

This is a conversation I often have when people find out that I create living trusts for my clients: Why a trust? They ask me. It seems so complicated. Why not just a simple will? What they do not realize is that a will is not simple. 
Most lawyers believe themselves competent to draft a “simple will.” But even the simplest will is quite complicated. Clients often come to me with wills they want to “update” or change. Looking at these documents, I have become convinced that many lawyers who think they know how to draft a will actually know very little about it. 
A will is interpreted by the court in the context of certain rules. For instance, every executor must post a bond. But, if the will is properly drafted, this can be a mere statement by the executor that he or she promises to faithfully execute the will.   Otherwise, the executor may need to get sureties – other people who agree to back up that promise with their own money, or even a corporate surety – essentially an insurance policy. It is obviously silly for a surviving spouse who is going to distribute the assets to herself to have to post a bond with sureties. But the rules are the rules. If the will does not say otherwise, sureties are required.
A trust, by contrast, is a simple document. It is a contract. A client signs a living trust twice, as trustmaker – the person providing the assets, and as trustee – the person who will hold the assets. It is essentially a contract between you and yourself.  That may seem a little odd,  but it is governed by the same law that governs any contract. 
A will must be signed with elaborate formalities: two witnesses and a notary, all in the same room at the same time. It must be “published” – the signer announcing out loud “this is my will.” The witnesses must swear that, as far as they can tell, the signer is of sound mind, over 18 years of age, and under no undue influence.   A trust needs no such formalities. It need not even be notarized. 
A will does nothing until it is probated. Probate is a lawsuit. A petitioner, usually the person named in the will as “executor” - the person who is to make the signer’s wishes a reality, begs the court to approve the will and appoint the named executor. All the heirs-at-law must be given notice, including, perhaps, an estranged (but not-yet divorced) spouse and all children (unless they have been adopted by someone else). If there is no spouse and no children in the picture, “heirs” may include remote relatives the person had no contact with during life.
By contrast, a trust is effective as soon as it is signed. The trusts we draft for our clients provide that, if the client becomes disabled (due to Alzheimer’s disease, for instance), someone else (named by the client in the trust) takes over as trustee. Nothing else changes. The client is still the beneficiary. The trustee has a duty – legally enforceable in contract law – to use the assets to take care of the beneficiary. If the client has named any other beneficiaries during his lifetime, the new trustee must take care of them, too.
On the client’s death, a new trustee takes over (this may be the same person who would take over at disability). That person proceeds to give the assets (which, as trustee, he or she now owns) to the people named in the trust to receive them. There is no requirement to give notice to anyone who is not a beneficiary of the trust.
Even if there is no contest, an executor under a will has no power until the court issues an order of appointment. This can be frustrating to a surviving spouse or child trying to make funeral arrangements or being dunned by the decedent’s creditors for money that is not available until the appointment arrives.  A trustee’s power to pay funeral costs or creditors' claims can be set out in the trust, so that there is no need to wait for a court order.
So, it is really the trust that is simple. It is a simpler legal document, governed by simpler laws. Acting under it is much simpler, because there is no need to get a court order.  Moreover, since a trust is effective as soon as it is signed, it can do things, such as providing for the client who becomes disabled, that a will simply cannot do.

Monday, March 10, 2008

Estate Planning for Separated Spouses

What kind of estate planning advice would I have for a person who is separated from his or her spouse? This question came up recently on a professional listserve that I subscribe to. My advice is simple to give, though I realize it may be hard to follow: get a divorce.
This is because, if you don’t have an estate plan, or even if you do, Massachusetts has a plan for your estate: the first $200,000, plus (if you have children) half of everything over that, goes to your spouse. This is what happens if you have no will. You cannot disinherit your spouse in your will. The spouse can “elect against” the will, having the will set aside, and taking the share he or she would have received if there was no will.
“Spouse,” in this context, means the person you were legally married to.   The marriage may be irretrievably broken. You may be separated, you may not have spoken for years, but if there was no legal divorce, you are still married, so far as probate law is concerned.
This reminds me of the days when I was in general practice, and the nicest divorce I ever did. A pleasant, middle-aged couple came to see me for estate planning. I asked them, just to make sure, “are you married?” She said yes, and he said no.
It turned out they had been living together for twenty years. She had left her husband, but had never gotten a divorce. I told them I could not plan for them, unless this situation was corrected. So I represented her in the divorce. 
There was plenty of money on both sides, and no children. You would think, after twenty years, there would be nothing left to fight about. But, you know, they found something? A piece of furniture! Even a “nice” divorce is not very nice.
What impressed me most of all, was this very dignified lady beginning to weep, as the divorce was finalized. Even though it was twenty years ago, the ending of a relationship was a hard thing to face.
So I realize, it may be hard to face the process of a divorce, the formal ending of something that was begun with joy.   
Can a trust protect against a spousal election? Possibly, if there are no probate assets at all. But I still think it is better to have one’s legal status reflect emotional reality, even if the process is hard to face.

Thursday, March 6, 2008

Living Trusts: More Than Will-Substitutes

Most people think of living trusts in connection with estate planning, as being roughly equivalent to wills. In fact, living trusts were first widely used in California in response to the high statutory fees for probating a will in that state. But a living trust can be more than a will substitute. A living trust can make your life easier, by allowing someone to step in to take care of your financial affairs if you are disabled and unable to fend for yourself. 
Most estate plans rely on a power of attorney to do this. A power of attorney can be described as a blank check. You give someone the same ability you have to write checks, buy and sell property, anything you can do, you can empower your “attorney-in-fact,” or “agent” to do for you. Your agent does not sign any agreement, is not bound by any directions you may give him or her, and the power usually provides that the agent is not liable for anything he or she may do under the power. Horror stories abound of people who came home from the hospital and found that their houses had been sold, or of people who have had their bank accounts emptied by someone they had thought they could trust.
A properly drawn living trust, on the other hand, can include specific instructions to the trustee. The trustee signs an acceptance of trust, and becomes bound by these instructions, which are legally enforceable.
Another problem with the power of attorney is that financial institutions are not bound to accept it.   A power may be too old – “stale.” Some powers called “springing” powers of attorney, become effective only when the principal becomes disabled. A springing power may be too new for a banker’s liking. You mean the person was fine yesterday, and today they’re disabled? There is no way to force a bank or a broker to accept a power. In contrast, if an account is properly titled to the trust, the bank or broker has to follow the instructions of the trustee.
By making it possible for someone to care for you when you are not able to manage your own affairs, a living trust can go beyond being a will substitute, to make your life and your family’s life easier.

Wednesday, March 5, 2008

What Happens to Your Car When You Go?

You can't take it with you!  If you leave a survivor – widow or widower, he or she can simply re-register the car in his or her own name, no questions asked. But what if you are single? The car becomes part of your probate estate. Someone must petition the court to be allowed to gather up your belongings, pay your debts, and distribute the remaining assets, according to your will if you had one, otherwise according to the law.

 If you have done living trust planning, the lawyer probably told you this would all be taken care of without having to go through the court process. The trust would simply be “settled.” A new trustee would take over from you and make all the distributions.
But trusts only work for property that is placed in the trust. Your lawyer may have made out a deed to place your house in the trust. He or she may or may not have helped you through a process of placing your bank account in the trust, along with your investment accounts and so on. But what about that car?
In Massachusetts, in order to transfer a car, even within a family, there must be a change of registration, which requires proof that the new owner is properly insured. The attitude of many insurance agents in Massachusetts has been that transfer of a car into a living trust requires expensive commercial insurance. Consequently, many attorneys have advised that the car can be left outside the trust.
That means probate. Don’t worry, they say. There is a simple procedure, called Voluntary Executor, for probate estates of less than $15,000 plus a motor vehicle. So you can safely leave your car outside the trust. 
There is only one problem with this approach. A voluntary executor is still an executor, and an executor is personally liable for estate taxes. (And may be liable for the decedent’s debts, if the creditors file claims properly). If your non-probate estate (living trust, IRA accounts, insurance...) might be taxable, do you really want to be asking someone to put themselves in a position of being liable for estate taxes on property over which they may have no control? And a voluntary executor is stuck with the position. Unlike an ordinary probate process, which is closed when the judge approves the executor’s final account, there is no provision in the law for closing a voluntary executorship.

As it turns out, there is an easy fix. Put everything, including your car, in your living trust. Notwithstanding what your insurance agent may say, this is perfectly possible. No commercial policy is required.   A special endorsement allows the policy to cover a vehicle owned by a trust. There are fees imposed by the Registry of Motor Vehicles for changing the registration, but the fees are less than $100, and it may be worth it to avoid laying liability as a voluntary executor on the shoulders of your designated successor trustee.   

You may  have to change insurance agents, if the one you have doesn’t understand the endorsement, and insurance companies, as some still insist that this can’t be done. But there are companies out there who are willing to write insurance for a vehicle in a living trust, and agents who are willing to go the extra mile for their clients. 


Wednesday, January 30, 2008

Trouble and the Trust

Leona Helmsley famously left more than a billion dollars to her maltese, “Trouble.” But Trouble isn’t rich. Trouble is a dog, and non-human animals cannot own property. There are some people who would like to change this, but they haven’t succeeded yet. So, what happened to that money? Mrs. Helmsley left it to the trustee of a “pet trust.” What exactly the trust says, we don’t know. Unless it is the subject of a law suit, the contents of a trust are private between the trustee and the beneficiaries.  
For the same reason that Leona could not leave the money to Trouble directly, Trouble cannot be the beneficiary of “his” trust. The beneficiary must be some human, who is directed to take care of Trouble and will receive a stipend and expenses as long as he or she does. On Trouble’s passing, the remaining assets in the trust will presumably go to some other person or to charity. 
So, at least three humans have to be involved in a pet trust. The original owner, who is called the “Trustmaker” created the trust.   The person taking care of the money is called the “Trustee.”  The person taking care of the animal is the “Caretaker.” Whoever receives the money when the animal is gone is the “Remainder Beneficiary.” This last can be a worthy charity such as a rescue organization.
So, if you want to create a pet trust, then, you need at least two other people – one to take care of the animal, and one to take care of the money. Why can’t you have just one? You can, of course, leave the animal and the money to the same person. But you would not have the kind of accountability that you would have if the caretaker has to go to the Trustee for money.    The caretaker/Trustee would be free to spend the money on anything he or she wanted.  
Many people just leave the animal to a potential caretaker with a sum of money sufficient to compensate the person for any expenses. This is better than not taking thought for the fate of the animal at all. People tend to assume that they will outlive their pets, or that some kind soul among their relatives will take them in. Given the reputation of her dog, Leona Helmsley could be fairly sure that would not happen. She had the money, so she chose to make really sure that it would be in someone’s interest to take good care of Trouble.

Friday, January 25, 2008

So Your Money is Tied up in a Trust?

So Your Money is Tied Up in a Trust?  
Congratulations! Your assets may be protected, if down the road you meet with one of the creditors or predators of life. Your property may survive the encounter, to be there when you need it.
Let me give an example. One foggy morning after your spouse has passed away, you may have an accident. Suppose you hit a school bus. Suppose too, that a court determines that you were driving too fast, and so the accident was your fault.   A lot of the kids are hurt, even killed. 
Not all the insurance you could have will cover this. The plaintiffs – the children’s parents – would become creditors who could attach everything you own, your house, your bank account, everything.   You would be left completely broke.
Now suppose your spouse had left property to you in trust. The conditions of that trust were that you could get money out of the trust for your needs (broadly defined – you could basically do anything you could have done while your spouse was alive) but a creditor, like the school bus children’s parents, couldn’t get in. 
This wouldn’t mean that the parents would be out of luck. But your attorney would have a basis for saying “let’s settle this – let’s name an amount” rather than having the plaintiffs able to go after everything you have.
Let me suggest another scenario. After your spouse passes away, you meet “Beau” the tennis pro, or “Betty” the barmaid. You’re swept off your feet. A year or so later, you wake up and discover that this person is way too young and foolish for you, and they are only after your money. 
In a divorce, a court will generally look at the assets of both parties and divide them “equitably,” which may mean equally, if there is no clear reason to do so otherwise. Does “Beau” or “Betty” get away with half your assets? Not half of those that your first spouse left to you in trust, not if the trust is drafted properly.
Catastrophic creditors, divorce, bankruptcy – these are all things that can happen. A properly drafted trust will protect against all of them.
Notice that I said that your assets “may” be protected and I refer to a “properly drafted” trust. A trust is not a “one size fits all” item. It needs to be tailored to your particular needs and concerns. Not everything that is called a “trust” includes the protections that I have described. There may be reasons for leaving them out. 
What about estate taxes? If your estate (including your 401(k), IRAs and life insurance) amounts to a million or more, you will want to do some tax planning. But that’s another blog entry.

Saturday, November 10, 2007

Who needs an estate plan?

Isn't that a concern of older people, or of the wealthy?  The fact is; everyone should have an estate plan, meaning at least a will, and probably a trust as well.  Whenever anyone passes on, there are decisions that have to be made, and things that have to be given out.  The person who does this is called the "executor" if there is a will.  If there is no will, this person is called the "administrator".  If there are children, someone has to take care of them, and be responsible for the money and things that belong to them.  This person is called the "guardian." 
  It is true; the court will not leave things without owners and children without a guardian.  But do you know who will be most likely appointed administrator and guardian in the absence of any advance planning?  The first person who volunteers.  If more than one person is interested, in being, say, administrator, there will be a lawsuit about it.  Eventually, the case will be resolved, but not without the bad feelings and expense that stem from any adversary proceeding.  Especially if children are involved, think custody battle. 
  Face it; the court is going to be involved. But if your selected executor can present the court with a tightly worded self-proving will that says who you want to do what, the judge has to do a lot less work.  And judges like that.  Although the judge can theoretically appoint someone else, if the will is clear and all interested parties agree, he or she is unlikely to. 
   As a matter of fact, probably no one needs an estate plan as much as a person with young children.  Just because it is so unlikely that such a young person will pass on, such an event is a worse blow to the family than the passing of an older person would be.  It causes worse chaos, financial and emotional. If one spouse is left behind, they must care for the children alone.  What if the surviving spouse re-marries, perhaps to someone who already has children?  What happens to the assets that should have taken care of the children of the first marriage?  What is to keep the life insurance intended for those children from being spent on a new car or expensive vacations? If both spouses are gone, which side of the family gets the children?
  One way to protect children in the event of the early death of a parent is to have money, such as life insurance, paid into a trust for the benefit of the children.  The trust could pay only for specific needs of the children such as braces or private school, or it could provide a stream of income to surviving spouse or guardian to provide for the children's needs.  The trust could be under the control of the spouse if that seems like a good idea, or a third party could control it, perhaps a grandparent.  If the assets are large, you may want to involve a paid third-party like a bank.  If both parents are gone, one relative may be the trustee, while another serves as guardian. 
  You should discuss with your spouse who in your respective families could care for the children if you were both gone.  Whatever plan you choose to have, you should have one, or you may be leaving the judge to make up his or her own mind as to what is best for your loved ones.  The result may not be a bad decision, but it may be different from the one you would have made.

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Jennifer A. Deland, Counselor-at-Law advises clients throughout the Metrowest area, including Holliston, Hopkinton, Milford, Medway, Medfield, Ashland, Framingham, Natick, Sherborn, Dover, Southborough, Sudbury and Westborough.

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