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End of Life

Nobody likes to talk about what happens when a loved one dies, but we all face this reality at some point in our lives. Be it a terminally ill or elderly parent, or an unexpected death of a spouse, there are specific legal steps that you can and should take to ease the transition. The end of life stage is a time full of anxiety, but hopefully, resolving the legal aspects will help you to bear the sorrow a little more easily.

Guardianship

If your loved one has not drafted and signed a health care proxy and durable power of attorney and then becomes mentally or physically disabled, you or a social service agency will need to petition the local probate court for an appointment of guardianship. You will also have to obtain a medical certificate clearly stating the loved one’s medical condition and the need for a guardian to serve. This certificate establishes that your loved one no longer has the ability to make personal, social, medical, or financial decisions for him- or herself. It is then necessary to petition the court for authority to become your loved one’s guardian, and the court will issue a notice called a citation, which has to be published in the newspaper where the ward currently lives. There is a date by which any person may object to the guardianship proceeding, and if no objection is made, then the hearing may be scheduled. This is a process best undertaken with legal guidance, and our firm can help. We can also assist you with the bond and accounting that the court requires.

Health care proxy

Scientific and medical advances have presented society with numerous bioethical issues. These advances have provided physicians with enhanced control over the time and nature of death. In Massachusetts, the legal document that addresses the challenges posed in making end-of-life decisions when you are unable to make the decision personally is called a health care proxy. It designates someone to serve as your agent in making health care decisions if you’re incapable of making them for yourself and ensures that your wishes are respected. There are nuances specific to different life stages and sexes, and Bacon Wilson attorneys can help you to draft the document that addresses your unique situation.

Income in respect of a decedent, (IRD)

Income in respect of a decedent (IRD) is income that a person has earned during his or her lifetime, but did not realize for tax purposes due to his or her death. Examples include a 401(k) account with a beneficiary, annuities, and savings bonds. The beneficiary will be pleased to learn that you left him or her money for future endeavors. However, that same beneficiary will learn that when the money is withdrawn, income taxes will be due at his or her ordinary income tax rate.

With IRD, the earned income must be taxed and does not receive a step-up-in-basis, which would allow the beneficiary to avoid paying any taxes on the inheritance. Our lawyers can assist you with IRD issues.

Last Will and Testament

Everyone has a will, whether or not they know it. You might say: “I never drafted a will, so I can’t possibly have one.” The reality is that if you fail to draft or properly execute a valid will, then the laws in your state will determine how your estate will be distributed. Thus, even though you may have failed to formally address your wishes about how to distribute your estate, state law will step in to distribute your estate (based on their guidelines and determination) upon your passing. A will is a legal document that states your wishes regarding the distribution and settlement of your estate (the property that you own and hold in your name) after you have passed away. As a legal document, a will is designed to guarantee that your wishes be carried out. In a well-drafted will, you determine and state:

  • How your property will pass (either by gift or trust)
  • When the distribution will be made, (i.e. when a child reaches the age of 21,)
  • Who will serve as your executor/trustee

In basic terms, a will guarantees that your wishes will be carried out in the way you have requested once you die. If you die without a written will, then you are said to have died “intestate” and your estate will be distributed by the probate court according to state law. The problem that can occur with this process is that the laws in your state may not yield the same results that you wish to occur upon your passing. Our legal team can help you create a will that will state how you want your estate to be distributed following your death.

Living will

Scientific and medical advances have presented society with numerous bioethical issues. These advances have provided physicians with enhanced control over the time and nature of death. In Massachusetts, the legal document that addresses the challenges posed in making end-of-life decisions when you are unable to make the decision personally is called a health care proxy. It designates someone to serve as your agent in making health care decisions if you’re incapable of making them for yourself and ensures that your wishes are respected. There are nuances specific to different life stages and sexes, and Bacon Wilson attorneys can help you to draft the document that addresses your unique situation.

Organ donation and burial instructions

Many individuals wish to be organ donors. While you can add this intent to your driver’s license, it is also a good idea to include this information in your estate planning documents, such as your health care proxy.

Also, many people desire special burial arrangements, such as cremation and scattering rites. It is also common for people to have opinions about which spouse they want to be buried with in cases in which they have had more than one spouse.

These preferences should be clearly set forth with the help of an attorney in estate planning documents to prevent post-death problems and litigation.

Probate

Probate is a court proceeding in which the following events take place:

  • The validity of your will is determined or your intestate (without a will) estate is settled
  • An executor or administrator is appointed
  • The executor or administrator inventories all of your assets that you held individually at your death
  • All your debts, taxes, and probate administration fees are paid
  • Distributions are made in accordance with the terms of your will or according the laws of intestacy in the that event you die without a will

This process does not occur overnight, and requires significant expertise to administer it properly in order to avoid prolonged lawsuits. Probating an estate can be very expensive and can take years to complete. It is not a private process, meaning that anyone can see what assets you have and where the assets are transferred. If these are areas of concerns for you, it’s important to understand how to avoid the probate process. Bacon Wilson attorneys possess extensive experience in this area.

Property co-ownership

There are three principal types of ownership (tenancies) relative to real estate. The most familiar is what is known as “joint tenants”. This means that if one person dies, the survivor owns all of the interest in the property. In a “tenancy in common”, each owner of the property has an undivided interest in the whole of the property. In this type of tenancy, upon the death of any owner, his share will pass as directed by his will, or by intestacy if he does not have a valid will. A third, special form of ownership allowed in several states is what is known as a “tenancy by the entirety”. In this case, only a husband and wife may own the property, and the property passes to the survivor.

Each type of ownership has advantages and disadvantages specific to your situation. Our lawyers can help you determine which suits you best.

Qualified personal residence trusts

You may have maintained a home, summer cottage, ski chalet, or similar property for family use. A qualified personal residence trust (QPRT) may accomplish your objective of maintaining this property after your death so that your children will be able to use it for future generations. The property will mostly have appreciated since you purchased it, and the QRPT may be utilized to reduce taxes upon passing the property to your children, so that they won’t be forced to sell it.

Spendthrift trust

A spendthrift trust is a trust that contains language that gives the trustee the authority to make decisions as to how the trust funds may be distributed to a beneficiary. This type of trust prevents creditors of the beneficiary from gaining access to the funds; however, the amount in trust that can be sheltered from creditors can vary widely from state to state.

Additionally, a spendthrift trust can dictate precisely how the beneficiary may use the funds. By doing so, the grantor, who is the person who established the trust, ensures that the beneficiary cannot squander the trust assets as they could if the assets were given to the beneficiary outright. Such protections can be extremely valuable, particularly for those who are not financially savvy or who are going through difficult times, such as unemployment, creditor issues, or divorce.

A spendthrift trust is flexible and can last for the life of the beneficiary or can be limited to a certain number of years. It is a sensible idea to investigate incorporating a spendthrift clause into any trust, as the benefits can be considerable.

Succession planning

Owners of closely held business must plan well in advance to prepare for and ensure the continued success of the company following a triggering event such as the death, disability, or retirement of one of its shareholders. For family-owned businesses looking to carry the organization along through generations, the typical track record is ominous. According to the Small Business Administration, 90% of the 21 million U.S. businesses are family-owned, and one-third of Fortune 500 businesses are either family-owned or family-controlled. However, only 30% of family-run companies today succeed into the second generation and only 15% are passed on into the third generation. At Bacon Wilson, we can assist with the orderly transition of your business.

Tenancy

There are three principal types of ownership (tenancies) relative to real estate. The most familiar is what is known as “joint tenants”. This means that if one person dies, the survivor owns all of the interest in the property. In a “tenancy in common”, each owner of the property has an undivided interest in the whole of the property. In this type of tenancy, upon the death of any owner, his share will pass as directed by his will, or by intestacy if he does not have a valid will. A third, special form of ownership allowed in several states is what is known as a “tenancy by the entirety”. In this case, only a husband and wife may own the property, and the property passes to the survivor. Tenancy should not be taken for granted. A careful review of all deeds for a condominium, house, timeshare, or other real estate entity will ensure that the objectives of the ownership are accomplished. Each type of ownership has advantages and disadvantages specific to your situation. Our lawyers can help you determine which suits you best.

Trusts

Revocable trusts, also known as an “inter-vivos trusts” or “living trusts”, are among the most useful estate planning tools for the management and distribution of family assets. Trusts serve a wide range of functions and may be appropriate for a variety of family financial circumstances and goals.

A common misconception is that trusts are only for the very wealthy. In reality, trusts can be used in variety of different circumstances and are a powerful way to manage assets.

Forming a trust consists of several steps:

  • The trust is created by the “grantor”.
  • The trust is funded, meaning that the grantor’s assets are placed into the trust. Assets can include stocks, bonds, mutual funds, real estate, bank accounts, etc.
  • The trustee(s) accept the responsibilities as expressed in the trust document. The trustee can be the grantor during his or her lifetime.
  • The trust itself contains dispositive provisions to instruct the trustee in managing the investments and distributing income or principal to the beneficiaries. This is the roadmap detailing how your property is distributed.
  • Beneficiaries are chosen to benefit from the trust. This typically includes the grantor during his or her lifetime, as well as family, friends, or charities upon the grantor’s death.

There are a number of helpful functions that trusts can perform:

  • A trust can help with business succession when it is desired that certain parties run the business and others benefit from its gain.
  • A trust can ensure the continued management of a business or personal finances.
  • A trust can direct the trustee to provide full management in the event of incapacity.
  • Assets held in a trust avoid probate and its attendant delays and costs.
  • Dearly loved pets can be cared for upon the death or incapacity of the owner.
  • The trust can be part of overall estate planning and can allow for control of assets even after death.

A trust has a number of beneficial attributes. The trust, and therefore its assets, can be professionally managed if you name a bank or trust company as its trustee. Certain tax benefits can be gained, especially for married couples. Financial privacy is maximized when your estate avoids the public process of probate.

Other types of trusts include:

  • A special needs trust to maintain benefits for a disabled individual
  • An irrevocable trust to allow life insurance benefits to pass tax-free to younger generations
  • An alternative irrevocable trust to protect assets from long-term care expenses

Bacon Wilson’s experienced attorneys can help you navigate your trust options and select the type most appropriate for your needs.

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