IS YOUR ESTATE PLAN UP TO DATE
Take this simple test to see if it is.
1. Have you prepared a will or a trust?
Without proactive planning, you are relying on Massachusetts law to determine how your assets pass, to whom they pass, and when they pass. You are also letting some judge decide who will be the guardian of your minor children and who will manage your assets. In addition to having potentially undesired results, this is perhaps the most costly and time consuming means of passing your assets to your loved ones.
2. If you have done a will or trust, has it been reviewed in the last five years?
Even assuming that there have been no family or financial changes since your plan was last reviewed, there have been major tax law changes in 1997, 2001 and 2004. An out-of-date estate plan is almost as bad as no estate plan at all. Our experience is that people view estate planning as an event rather than a process. Our view is that estate planning is an organic process -- ever changing and evolving based upon ever changing family dynamics and goals. Keeping your plan current is vital to achieving the goals you set out to accomplish.
3. Are all of your heirs over the age of 21 and financially responsible?
Under Massachusetts, children inherit property no later than age 21 without restriction. Proper planning is crucial to prevent an heir from squandering his or her inheritance, or worse, from causing harm to himself or herself.
4. Are you absolutely certain that your assets will not be subject to probate?
We encourage you to make a list of each asset you own and identify how each asset is going to avoid probate. Assets owned as “joint tenants with rights of survivorship,” assets owned in the name of a trust, and assets that pass by beneficiary designation (such as IRAs, life insurance, etc.) will avoid probate. Everything else is subject to probate. (Also, note that assets owned jointly are typically subject to probate upon the death of the last joint tenant.) Probates can be costly and typically require twelve (12) to eighteen (18) months from the date of death to conclude.
5. Do you have assets titled jointly with a child or children, or someone else?
Holding assets jointly with someone other than a spouse is quite common, but has some potentially devastating consequences of which most people are unaware. Usually, a creditor of a joint tenant can take the entire asset to satisfy the creditor’s claim. A creditor would include a divorcing spouse, judgment creditor, or business creditor. Additionally, problems can be created if joint tenants die in the wrong order.
6. Does your current plan provide your heirs with asset protection, divorce protection, and lawsuit protection?
The most common means of providing for heirs is with outright distributions. By doing so, however, the inheritance becomes subject to the creditors of your heirs.
7. Is this your first marriage?
Second or subsequent marriages present unique planning issues, particularly if both spouses have children from a prior marriage. Proper planning is critical to prevent undesired results.
8. Do you know how the Deficit Reduction Act of 2005 will impact your estate plan and future long-term care plan?
The recent Deficit Reduction Act makes it substantially more complicated and expensive to do so called “Medicaid planning”. Disqualification periods have been substantially altered such that substantial legal fees are likely to be incurred just to plan around this new law. Sophisticated strategies may have been outdated. Long-Term Care Insurance may now be the best hedge against ever increasing costs of long-term care. The Government no longer wants to foot the bill if you have assets.
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