Estate planning is not a static project to be finalized and then put on a shelf, never to be reviewed again. In truth, it is a never-ending process; one which requires periodic review in order to remain pertinent. At least every 5 years and upon major life events, pull out the documents and make sure they continue to be relevant. Further, periodic statutory changes dictate that your intentions will be best attained if documents are reviewed.
Over the next several weeks, we will explore some of the areas that might need your attention...
At the core of any good estate plan is a list of all of your assets, with estimated values. Generally this will include bank accounts, securities, real estate, retirement funds, insurances (life or disability), annuities, business valuations, and tangible personal property, just to name a few. Identify whether each asset is owned in your name alone (and with or without a beneficiary designation); jointly with another; or whether it carries a beneficiary designation or is held in trust. This information informs an estate planning attorney as a beginning point. After your estate plan is fully developed, do not be surprised if assets are re-titled or change columns.
Consider having a last will and testament:
A last will and testament controls only those assets that are held in your name alone, and without a designated beneficiary, at your time of death. These are the only assets that go through the probate process. Your will provides a road map as to who you would like to receive your probate assets. It can also provide for forgiveness of debt or allow someone temporary use of an asset (such as living in a home until X age, or Y event occurs). Generally, a will allows you to control and determine who inherits your estate at your death.
Under the Massachusetts Uniform Probate Code, (MUPC) which went into effect March 31, 2012, the probate process has now been expedited and no longer requires as much court intervention or oversight, although court supervision is available where appropriate.
If you pass away without a will, (referred to as dying “intestate”) state law will dictate how your assets get distributed. Historically, if you died intestate, survived by a spouse and children, your assets were allocated between them. Under the MUPC, if you die intestate and are survived by your spouse and children of both you and your spouse, (whether biological or adopted) then your spouse will receive your entire net estate, without any portion specifically allocated to the children of both you and your spouse.
The MUPC also changes the title of the person appointed to oversee the administration of an estate to a personal representative (PR). Further, the MUPC provides a list of individuals who have priority to serve as your PR. At the top of the list is your spouse, and then a child (over the age of 18), etc.