Tobin and Tobin, P.C.
 
Estate Planning

The components of even the most basic estate plan are:

  1. Last Will and Testament
  2. Durable Power of Attorney
  3. Health Care Proxy
  4. Declaration of Homestead (if you own your own home)

Last Will and Testament
No matter what your age, marital status, or net worth you should have a Will. Without a Will, the law of the state where you reside, will determine to whom and in what amounts, your property passes, and this can have unintended consequences.

Your Will performs the following functions:

  • Nominate your "Executor"
  • Identify your beneficiaries and what they are to receive. Also, specify alternate beneficiaries in the event that someone named in your Will pre-deceases you.
  • Establish a Trust for minor children
  • Nominate a Guardian for your minor children

On which assets does a Will operate?
"Probate Property" as distinguished from Joint Bank Accounts, Trusts, Life Insurance policies, or retirement accounts. However, if both joint owners die in a "common disaster", or your designated death beneficiary pre-deceases you, then where does the property go? Your Will can provide for this unexpected occurrence.

How often should your Will be reviewed?
About every five years, or after any major life event, such as marriage, birth, divorce, death in the family, or you move from one state to another.

Don't forget about your pets! You should also think about who might be able take your pets in the event that you should no longer be able to care for them.

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Durable Power of Attorney: M.G.L. ch. 201 B
This document authorizes your “Attorney-in-Fact” or agent, to handle your finances in the event of your physical or mental incapacity. It takes effect only when you become incapacitated, however, it does not provide any oversight by the Court. In this respect it is different than Guardianship.

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Health Care Proxy: M.G.L. ch. 20lD
This document appoints your Health Care Agent and authorizes that person to make health care decisions for you, if you are unable. It is not the same thing as a "Living Will". A Living Will is a statement of your wishes concerning certain specific types of medical treatment in the event of incapacity, and it can provide some guidance to you Health Care Agent when it comes time for that person to make decisions in specific situations.

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Declaration of Homestead: M.G.L. ch. 188, sec. 1 and 1A
This document, once recorded at the Registry of Deeds, can provide protection for your principal residence, by protecting your home from the forced sale by general creditors. Currently the amount of the protection afforded is up to $500,000.00.

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