About two years ago, I wrote a piece HERE on the Soup de Jure about getting your estate plan done as a New Year’s resolution. Some recent visits and emails from clients of ours, however, prompt me to revisit this topic, including this one that came into our website: “My partner and I are seeking assistance with our long delayed ‘resolution’ of getting our wills and other related items in order.” It turned out, this was something they had been discussing for quite some time, but on which they never seemed to pull the trigger. I assured them that I hear this all the time!
As I wrote a year ago, the most commonly made New Year’s resolutions are: getting in shape, losing weight, quitting smoking, saving more money and travelling. According to Time Magazine, however, the most commonly broken New Year’s resolutions are… getting in shape, losing weight, quitting smoking, etc. This resolution is a no-brainer: Drafting an estate plan is easy, quick, and relatively inexpensive.
You can learn more about the various options out there by reading our previous POST, which focused on Wills – the most basic estate planning tool you can draft. For those of you who are more interested in making as little a hassle for your family members as possible when you’re gone, you should consider creating a Trust. There are many kinds of Trusts, used for many different purposes such as estate tax avoidance, planning for special needs children, Medicaid and MassHealth eligibility (nursing home or long-term care planning) and avoiding Probate. This last reason, the avoidance of the Probate process, should be every Massachusetts resident’s goal.
Here’s a great example of why avoiding Probate is a good thing: A few months ago, I was in Probate Court for a simple reason – getting someone appointed as the personal representative (formerly called “executor”) of her deceased cousin’s estate. This particular matter had to go before a judge. I stood in line for approximately 90 minutes in the court room to check in with the clerk, waited about an hour to be heard by the judge, and stood in line again to obtain the appointment paperwork. That’s about 3 hours of attorney time – which is not cheap – to go to court just once, and that is a typical morning in Probate Court. Many estates require several additional trips into court.
Just another day in Probate Court! (Credit: Warner Bros. Studios)
Unfortunately, some Probate Courts experience delays which take months to resolve. Some are even known to lose their own files from time to time! When I am asked how long it takes the court to approve a decedent’s Will and appoint a personal representative, my typical answer is “between three weeks and 6 months”. (This also depends on which county court is involved.) Who wants to go through that?
That is where a Trust comes in. When someone dies with a Trust that owns property, whether it be bank accounts, stocks or a house, a new “Trustee” simply takes over and has immediate access to that property. There is no court involvement, because the family member technically does not “own” the property by himself or herself – the Trust owns the property, and the family member, while alive, had the sole management authority over the property, as Trustee. Death does not change a Trust, it simply changes the Trustee.
Similarly to a Will, a Trust dictates exactly what happens to the property when the family member dies. This can be as simple or as complex and involved as that person wants, and it gives that person an extra level of control over what happens when he or she is gone.
And in many cases, the cost of drafting a Trust is less than three hours of attorney time. So, in reducing your family’s hassle when you’re gone, you’re able to reduce their legal bills as well. Another no-brainer!
Top 10 Commonly Broken New Year’s Resolutions
Lucas Law Group, LLC
