Daviau Law Offices, PC FindLaw IM Template 2022-05-06T22:35:22Z https://www.daviaulaw.com/feed/atom/ WordPress On Behalf of Daviau Law Offices, PC <![CDATA[How do revocable and irrevocable living trusts differ?]]> https://www.daviaulaw.com/?p=46121 2020-01-16T17:21:00Z 2020-01-16T17:21:00Z You may already have a will or have plans to create one. However, if you have substantial assets, have a complicated situation or value privacy, you may benefit from creating a living trust as well as a will. A living trust is a type of trust that you can create during your lifetime. This is different from a testamentary trust, which is a type of trust created by your will after your death.

A living trust can be either revocable or irrevocable. Although the main difference may be self-evident, it is not the only difference. If you think a living trust may be right for your situation, it is important to fully understand your options.

A revocable living trust

If you create a revocable living trust, you will be able to modify or cancel it at any time. This may be a favorable quality because you can change the details of the trust if you change your mind, if your situation changes or if a loved one’s situation changes.

Another potential benefit is that this type of trust allows you to name yourself as the trustee. This means that, until you pass away, you can manage the assets you put into the trust.

However, the flexibility and control that are so favorable in a revocable trust can also potentially leave your assets vulnerable. Because you are still in control of the assets, they can be taken to settle debts or legal judgments. They also can count as your assets for legal purposes, which could affect your eligibility for certain government programs, such as Medicaid. The property could also be subject to estate taxes when you pass away.

An irrevocable living trust

An irrevocable living trust does not offer the flexibility or control that a revocable trust offers. You usually cannot alter the trust once you create it, and you must name someone else as the trustee. However, an irrevocable trust offers a level of protection that a revocable trust cannot.

Because someone else manages the assets you put into your irrevocable trust, the assets do not count as yours. This means that they cannot be taken away to pay off debts or to settle a judgment. They cannot count against your eligibility for government programs. The assets in the trust can also avoid estate taxes.

Other important considerations

When weighing your options, it is important to realize that the two types of living trust share some benefits. Some of these shared benefits include:

  • Designating someone to manage certain assets in case you become too ill to manage them yourself
  • Allowing the assets in the trust to avoid probate
  • Keeping the assets in the trust (and who inherits them) out of public record

The right type of living trust for you will depend on your estate planning goals and the particulars of your situation. Some people value the control that they can have with a revocable living trust. Other people prefer the security of an irrevocable living trust.

On Behalf of Daviau Law Offices, PC <![CDATA[4 Common questions about the probate process]]> https://www.daviaulaw.com/?p=46120 2019-12-02T17:00:00Z 2019-12-02T17:00:00Z After your loved one passes, their estate will have to go through probate. Probate is a process by which a court validates the contents of your loved one’s will so that their assets can be properly distributed. But for those who are unfamiliar with the process, probate can seem intimidating. Here are four frequently asked questions that most people have about probate.


1. How long will probate take?

There are several factors that contribute to how long the probate process will take. Depending on how big the estate is, how many beneficiaries there are, where those beneficiaries are located and if any disputes arise determines how long probate will last. Generally, probate can take anywhere from a few months to a couple years.

While probate may take a while, it’s important that all debts are forgiven and all assets go to their proper beneficiaries. And this can take time. If you want it done thoroughly and correctly, there’s no rushing it.

2. Who is in charge of the process?

Whoever was named personal representative in your loved one’s will is the person who oversees the probate process. The court will officially appoint this person to head the distribution and transfer of assets. However, if the will did not name someone as personal representative, the court will choose someone.

The personal representative is in charge of paying debts and taxes, preparing the assets for transfer and distributing the estate. A responsible and willing personal representative can help the process run as smoothly and effectively as possible.

3. Is probate avoidable?

Probate can often be a concern for people who wish to save time and money. For assets placed in a will, probate is usually unavoidable. However, under certain circumstances, probate is not necessary. In Massachusetts, an estate can transfer without probate if:

  • Jointly-owned property passes onto a beneficiary through right of survivorship
  • Your loved one left assets in a trust rather than a will
  • Accounts such as bank or retirement savings have payable-on-death designations

4. Do I need a probate attorney?

Although a personal representative is in charge of managing the estate through probate, it can be a complex process. A probate attorney can help you prepare for probate and guide you through the process with as minimal stress as possible.

On Behalf of Daviau Law Offices, PC <![CDATA[Do I need to name an executor in my will?]]> https://www.daviaulaw.com/?p=46119 2019-10-25T09:59:00Z 2019-10-25T09:59:00Z Have you ever wondered who will manage your estate and the probate process after you die? If you have close family members, such as a spouse or children, the answer may seem obvious. There are many people, however, who may not be so sure. In such a case, failing to name an executor may place the estate in the hands of someone whom you wouldn't have chosen yourself.

Even for those with family members they are sure will be willing to serve as an executor, it can be helpful to name someone legally in the will. For example, you may ultimately survive your spouse. In that case, the role would fall to your children. Unfortunately, if one child is not explicitly named, it may cause a problem when they try to pick who will become the executor. That's why it's always the safest choice to legally list someone in your will as the person who will handle your estate.

Role of an executor

You understand why naming an executor is vital–but it's also essential to know what they will be responsible for before you choose one. There are many duties of an executor, but here are a few main ones:

  • Handle probate court: An executor must submit your will to a probate court to begin the process of distributing the estate. Dealing with the judicial process can require lots of paperwork and time. If someone decides to contest your will, they will also need to handle that.
  • Manage and distribute your assets: All the things that have monetary value will need to be dealt with by the executor. This duty may require some research on their part to find all your belongings, bank accounts and more.
  • Pay debts & taxes: The executor must also pay any outstanding debts and taxes, if any. The money itself will come from the estate, and the person you name will not be responsible for paying out of pocket. Even so, they must pay careful attention in order to avoid legal problems in the future.

Choosing your executor

With these responsibilities in mind, you should choose someone who you think will be able to manage all of them. A spouse is a common choice, but if that is not an option in your situation, you must decide who will be able to carry out your wishes. No matter who it is, make sure to have an open and honest discussion with them about your expectations.

On Behalf of Daviau Law Offices, PC <![CDATA[Funding a special needs trust for your child]]> https://www.daviaulaw.com/?p=46118 2019-10-22T13:00:00Z 2019-10-22T13:00:00Z Taking care of your special needs child is one of the most important parts of your life. While your child may rely on Medicaid or other government programs to take care of basic expenses, you chip in for any extra expenses needed. But how do you fund your child’s extra needs after you pass away?

A special needs trust is an important part of estate planning. Giving an inheritance directly to your child could cause a loss of government benefits. By creating a trust, you make sure your child has money for extra care while still qualifying for government aid.

Asset limits for government benefits

Government benefits like Medicaid and Social Security pay for most of your child’s expenses. But to qualify, your child can only have a limited amount in assets. And if your child has extra expenses to improve his or her quality of life like housing, entertainment or traveling, government benefits won’t cover those.

Avoiding asset limits with a special needs trust

You can leave money for your child while avoiding asset limits by setting up a special needs trust. A special needs trust is an irrevocable trust with your child as the beneficiary. Since it is irrevocable, your child does not have direct access to it. Instead, you appoint a trustee, typically a family member or friend, who draws from the trust to pay for your child’s extra needs. And the government doesn’t count the assets in the trust towards your child’s asset limit for benefits.

Setting up a special needs trust

A special needs trust is a part of your estate plan. When you set up the trust, you decide how much of your estate will fund the trust when you pass away. You also choose who the trustee will be and what happens to money in the trust when your child passes. An attorney can help you set up the trust correctly.

Taking care of your special needs child is important. A special needs trust makes sure that your child is taken care of after you pass away.

On Behalf of Daviau Law Offices, PC <![CDATA[3 critical decisions when drafting your will]]> https://www.daviaulaw.com/?p=46117 2019-09-08T13:34:00Z 2019-09-08T13:34:00Z Too many families in Massachusetts and across the country do not have wills. A recent study says nearly half of those surveyed are without any estate plan and women are more likely not to have a will in place. Many reasons are given, including a reluctance to think about death or they believe wills are only for the rich.

However, having a will in place is one of the most important and loving decisions you can make for your family. Having an estate plan is more than dividing up your assets when you die, it can also tell a court who you want to raise your kids as well as making sure your belongings go to the people or organizations of your choice.

Essential questions to ask yourself

When creating your will, there are three fundamental questions that you should answer:

  • What happens to my estate? A will allows you to decide who gets your assets and when they can receive them. In some cases, it provides money for a guardian to help pay for the costs of raising your children. For larger estates, you can decide when and how your kids can access their inheritance.
  • Who will be the executor? He or she could be the same person as your children’s guardian, and many are family members or close personal friends. The primary consideration is choosing someone trustworthy and organized with solid financial skills.
  • Who will be the guardian of my children? As stated above, this person could also be the executor who will take custody of your children should both parents pass away. However, many people choose different people for these roles. Your guardian may be a beloved family member who you know will be the best option for your kids, but they have weak financial skills.

Estate planning is sound financial planning

Estate planning is more than planning for your death and helps avoid confusion and a potentially lengthy probate process if you die without drafting a will. An experienced estate planning attorney here in Massachusetts can help you find the right plan for your family’s future, while giving you peace of mind while you are still around to enjoy your loved ones as well as the wealth you’ve created.

On Behalf of Daviau Law Offices, PC <![CDATA[What duties am I responsible for as a personal representative?]]> https://www.daviaulaw.com/?p=46116 2019-08-29T09:44:00Z 2019-08-29T09:44:00Z If you are the personal representative of a loved one’s estate, you were either named as such in your loved one’s will or appointed by a court. Serving as a personal representative, sometimes called an executor, can be an honor. However, it is also a serious responsibility.

As a personal representative, you are responsible for managing your loved one’s final affairs. This can involve numerous steps, each with its own legal complexities.

Duties of a personal representative

Your duties as a personal representative will depend on the situation. However, some duties you may be responsible for, include:

  • Finding your loved one’s assets
  • Determining if probate is necessary
  • Properly filing the will in probate court
  • Paying off your loved one’s debts with your loved one’s money
  • Filing your loved one’s income tax returns
  • Distributing your loved one’s remaining property appropriately

Common mistakes to avoid

According to Forbes, many personal representatives make similar mistakes. Some of the biggest mistakes personal representatives make include failing to act, favoring one beneficiary over others and self-dealing.

As a personal representative, you have a fiduciary obligation to all the beneficiaries to move the estate through the probate process and treat them each fairly. Failing to act, favoring one beneficiary or self-dealing could be a breach of your obligation.

Another common mistake is forgetting that the personal representative has personal liability. This means that if you complete one of your responsibilities incorrectly or breach your fiduciary obligations, you could be required to use your personal assets to remedy the mistake.

Serving as a personal representative is an honor, but it can involve a lot of work. To avoid possible problems, it can be helpful to be sure that you completely understand your responsibilities, so you can successfully fulfill each of them.

On Behalf of Daviau Law Offices, PC <![CDATA[When you may want to consider a trust rather than a will]]> https://www.daviaulaw.com/?p=46115 2019-08-02T12:00:00Z 2019-08-02T12:00:00Z There is no single correct way to organize your estate plan. You might employ a number of different potential strategies, each with advantages and disadvantages. That includes the use of a will. While a will has many benefits, there are scenarios in which you might want to consider using a trust instead.

Trusts, while they can be more legally complex, do offer some additional flexibility under certain circumstances. With that in mind, here are a few instances in which utilizing a trust, rather than a will, might be effective.

You want to minimize certain taxes

Taxes can take a real bite out of an estate. By putting certain assets into a trust or trusts, it may be possible to reduce some of those tax obligations. Doing so successfully requires a thorough understanding of the different types of trusts available. But it could mean the difference between selling property in order to pay those taxes and keeping the estate mostly intact.

You want to avoid probate

Probate is the legal process of administering an estate. The process, which is overseen by the courts, can take months to complete and potentially cost more money than someone had planned for, especially in the case of large, complex estates. It’s possible to set up a trust in a way that does not require certain assets to go through probate, likely cutting down the time commitment and financial requirements.

You’re looking for privacy

The probate process, since it goes through state courts, is a matter of public record. Some people may not want the outcome of their estate to be so widely known. In those cases, if property is successfully placed into a trust to avoid probate, it will also remain private – out of the public eye.

You own real estate outside Massachusetts

If you own real estate outside of Massachusetts, that property may need to go through the other state’s probate court – referred to as ancillary probate. That means more time, more documents and potentially more court costs. Because that’s often not ideal, some individuals choose to place that property in a type of trust that may be able to avoid the need for ancillary probate.

Whether a trust is right for your situation depends entirely on your goals. It’s important to remember the right answer for someone else might not be the right answer for you.

On Behalf of Daviau Law Offices, PC <![CDATA[What to know when considering an advanced health care directive]]> https://www.daviaulaw.com/?p=46114 2019-07-20T14:22:00Z 2019-07-20T14:22:00Z Planning for the future can be a daunting task, especially when you don’t know what lies ahead. An advanced health care directive allows you to remain in control over what happens to you in the event of incapacitation.

Two common types of advanced directives are health care directives/proxies and living wills.

What is a health care directive/proxy?

A health care proxy is a document where you appoint someone to make medical decisions for you if you are unable to make them for yourself. This could be a close friend or relative you trust.

What are the benefits of setting up a health care directive?

  • Your medical decision is based on current information
  • Someone you trust gets to make a medical decision for you based on your values and beliefs
  • By having a proxy, you’re preparing for the unexpected

What is a living will?

A living will is a document where you specify what type of treatment you would want if certain situations were to arise. These situations can include severe mental illnesses, comas and difficult pregnancies.

What are the benefits of setting up a will?

  • You get to voice your beliefs and concerns
  • You make your own decisions
  • You can revoke a living will at any time

Overall, either of these choices may be the right fit depending on your personal situation. Considering which of these options might be right for you and understanding the components of each is a good step toward taking control of your future.

On Behalf of Daviau Law Offices, PC <![CDATA[Is falling inevitable as your parents age?]]> https://www.daviaulaw.com/?p=46113 2019-06-12T13:40:00Z 2019-06-12T13:40:00Z As an adult child of aging parents, you likely have many things you want to help your parents consider while planning for the future. Pre-determining how they want to meet their medical needs may require a great deal of thought, conversation and documentation.

Unfortunately, no matter how much planning you do, your parents could fall and suffer injuries. Even if they live in a well-staffed nursing home, you may want to do all you can to decrease your parents’ chances of falling.

5 ways you can reduce the chances of falling among the elderly

It is extremely common for older adults to fall. Weakened muscles and trouble walking account for roughly 24% of falls for residents in American nursing homes, and falls take the lives of 20% of adults aged 65 and over.

Although you cannot prevent every fall, and likely are not able to personally provide around-the-clock care for your aging parents, there are some ways you can work with your parents to prevent falls.

The reminders you can give your parents to reduce their chances of falling include:

  • Stay hydrated. Although this will inevitably increase visits to the restroom, staying adequately hydrated can help fight dizziness.
  • Remove tripping hazards. Rugs, cords and clutter can be hazardous, especially for people who have gait issues.
  • Stay physically active. Working on strength and balance can improve stability within your body.
  • Forego sleeping pills. Sedatives often cause dizziness. If your parents need help sleeping, you can ask a doctor about using melatonin instead.
  • Evaluate shoes. Ill-fitting shoes can cause your foot to slip. And while some shoes may be easier for your parents to slide on, they could also be the cause of a fall.

Despite your best efforts to help your parents, they could still fall; in some cases, this could be the result of negligence. Your parents could potentially fall due to a poorly-maintained wheelchair, bed that is adjusted incorrectly, wet floor or insufficient lighting.

Remaining aware of your parents’ progress and their level of care could help you determine the cause of any fall-related injuries they experience. However, if you believe one of your parents fell due to the negligence of their caregiver, you would be wise to explore not only the kind of care provided but also your legal options in holding their nursing home accountable.

On Behalf of Daviau Law Offices, PC <![CDATA[How can you use gifts in an estate plan to conserve wealth?]]> https://www.daviaulaw.com/?p=46112 2020-09-22T09:31:15Z 2019-05-15T14:45:34Z How do gifts help conserve wealth? If you arrange it correctly, some gifts left through estate plans are tax-free. You would usually give these gifts during your lifetime, rather than afterwards. To be tax-free, gifts must fall under certain dollar amounts or used for certain purposes. The following are considered tax-free gifts:
  • Transfers under $15,000 to one recipient from one donor in one year ($30,000 for a married couple splitting or giving a gift)
  • Direct payments for tuition
  • Direct payments for medical expenses
There are other tax-free or low-tax options to consider for your estate plan. You could create a non-profit, donate to a religious organization or educational institution through a charitable trust. This could be a charitable lead or a charitable remainder trust. You can also set up revocable or irrevocable trusts to help your estate avoid probate and general court expenses. These require a high level of expertise and cooperation from your beneficiaries but might well be worth the time and professional advice depending on your assets. What is the Lifetime Gift tax exemption? In the newest Tax Act, there is a temporary federal exemption for taxes for up to $11.2 million in gifts over a lifetime (doubled for married spouses). Anything over that qualifies the estate for a 40 percent rate. As a result, wealthy individuals might look to gift some of their estate before they die to qualify for this exemption. This exemption expires in 2025 and might return to the previous $5 million level unless Congress takes future action. If you are interested in maximizing your estate's assets and avoid unnecessary expense, you may need professional help. Your beneficiaries and you could save in the future.]]>