Estate Planning


Estate planning by nature is a responsibility that people tend to put off until “later”. However, having a properly a drafted estate plan is the only way to help ensure that your estate is devised as you wish and that your loved ones are properly provided for. Otherwise, your estate, after your passing, will be distributed pursuant to Massachusetts intestacy laws. In Massachusetts, intestacy laws provide a default estate plan for people who pass without a properly drafted estate plan and so, the distribution of your property will be determined by the commonwealth, possibly leaving loved ones without the assets and personal belongings you wanted them to have.

A last will and testament is one legal instrument that can be used to help ensure that your final wishes are carried out. In addition to transferring any property solely owned by you, the testator, a will can also be used to nominate guardians for your minor children, in the event they are orphaned. 

Generally, a will must meet five basic requirements to be valid under Massachusetts law: (1) the will must be in writing, (2) the will must be signed be the testator, (3) the testator must be at least eighteen years old, (4) the testator must be of sound mind, and (5) the will must be attested and subscribed in the presence of the testator by two or more competent witnesses. It is also important to keep in mind that a will does not legally come into effect until after the testator dies. Thus, other estate planning instruments must be used to avoid probate and help manage the testator’s affairs in the event he becomes incapacitated.

Generally, a trust is a fiduciary relationship between a trustee and a beneficiary. The settlor creates the trust by conveying legal title and equitable title of specific property to the trustee and beneficiary, respectively. Despite the fact that all three parties (settlor, trustee and beneficiary) are required for a trust to be created, all three parties can be represented by a single person. However, the same person cannot be the sole trustee and sole beneficiary of a trust. Trusts can provide incredible flexibility to your estate plan. They come in many different forms and can be used to achieve an array of purposes. Various forms of trusts are often used to accomplish commonly sought goals such as bypassing probate, tax avoidance and preserving eligibility for government benefits. Essentially, a trust can be drafted to take nearly any form in order to achieve your goals in under most circumstances.

There are also other instruments that should be executed within your estate plan that authorize specific individuals, who you choose, to make personal decisions for you in the event you become temporarily or permanently incapacitated. Generally a Durable Power of Attorney designates someone to make decisions on your behalf in the event you become incapacitated; a Health Care Proxy designates someone to make medical decisions for your if a doctor declares you are unable to make your own medical decisions; and a HIPPA Authorization allows your medical providers to give a specific person or persons access to your medical information.

A business succession plan should be part of an entrepreneur’s or small business owner’s estate plan. Similar to how you can authorize specific individuals to make personal decisions for you upon the occurrence of certain events, you can also preemptively decide what happens to your business interests in the event certain things take place. A Buy-Sell-Agreement (BSA) can transfer a business interest upon a business owner’s death, disability, or retirement. A BSA may be structured several ways and needs to be properly funded in order to be effective.