Trusts & Wills
While a Will gives instructions to heirs for dispersal of assets, a Trust accomplishes the same goal more quickly and easily.
People who die in Massachusetts with a Will but no Trust often have no alternative to taking the Will through Probate Court administration. This process may take months and is typically billed hourly by attorneys. In addition, numerous appearances by attorneys in court and submission of paperwork can make the probate administration process expensive.
Consider an alternative to probate: Creating and funding a Trust allows for easy management and transfer of assets upon death or disability. You don’t have to be wealthy to benefit from a Trust: You need only to want that your assets will pass to your designated beneficiaries quickly and easily.
If you wish to establish control over any property or other assets that will continue after your death, creating a Trust will provide you with peace of mind. And perhaps more important, a Trust makes the transfer of assets easier for your survivors because assets transferred to a Trust prior to death are controlled by the Trust agreement, not by the Will-and-Probate process.
McManus Estate Planning LLC can write a Trust so that it manages your assets in order to
- avoid Probate Court administration;
- produce income for a beneficiary;
- provide for a spouse and offspring;
- conserve your assets or provide for asset growth;
- address the Massachusetts estate tax;
- address the Federal estate tax;
- provide for and protect minor or disabled children;
- control use or disposition of assets long after you are deceased; and
- protect beneficiaries other than yourself from creditors.
Our team can write a Trust to ensure that your medical and financial choices are followed. We look for ways to minimize estate tax liability and probate court involvement. We look in advance for ways to avoid having children—or children or adults with disabilities—involved in guardianship proceedings.
The first step is to determine who will receive your property, a spouse, children, or other family members, and when. You may choose to have your property held in Trust until the recipient reaches a specified age. Or you may wish to give property to a charity or other organization. There are many possibilities, and you’ll have more peace of mind of you make choices in advance instead of leaving it to a court to decide.
Having a Trust becomes especially important when minor children and a former spouse is involved. For example, imagine if you pass on with minor children and a former spouse. It is likely that your former spouse—as their guardian—will have control of the inherited wealth you intended for your children.
With a Will you can also create a testamentary Trust to hold your estate for your children until they reach their majority or a later age that you designate. However, you can accomplish the same thing with a funded, living Trust during life and avoid the Probate Administration process. That said, there are special times when a testamentary Trust may be useful for certain plans.
Using similar instruments you can provide for a second or current spouse while still protecting assets for your children. You can determine how much or how little will be set aside for your spouse for her or his lifetime, subject to the spouse’s statutory rights to take a certain share of your estate. With your assets in a Trust, your spouse can benefit from them but not control them. Your Trust can provide for the balance of the assets to pass to your children—or to be held in further Trust for them—after your spouse dies. If you wish, your children can be beneficiaries of the Trust even while your spouse is still alive.
Estate planning is essential but “Wills” are not always the most efficient vehicles for it. The majority of our clients at McManus Estate Planning use Trusts to accomplish what Wills cannot do.
If you die without a proper estate plan and lack both Trust and Wills, the government will consider you to have died “intestate” and will use an Intestacy Statute to determine the distribution of assets to the people it considers to be your beneficiaries. Of course, assets with beneficiary designations pass outside of the Probate Court administration process. Consult the Massachusetts Uniform Probate Code for more information.
Lacking an estate plan essentially means that you will have relinquished control over the assets you leave behind and that loved ones who think of themselves as your beneficiaries may not in fact be such. In addition to grief, your survivors will be burdened with helplessness. In Massachusetts anyone can make an estate plan if she or he is age 18 or older, is not under any undue influence, and is otherwise “of sound mind.”
Creating an estate plan requires careful consideration and is best done with the guidance and assistance of a skilled and seasoned estate planning attorney—this should not be a “do-it-yourself” project.
Because there are more efficient means of transferring assets, such as a Trust, the Will is often not the primary estate planning tool. However, it does have an important place in the planning process. A common and valuable purpose to a Will is naming guardians for minor children. A skilled estate planning attorney will make sure that all legal requirements are met and will help you avoid mistakes and costly tax burdens.
Massachusetts law does not allow for joint Wills. Each spouse in a marriage must have her or his own Will even if the couple jointly owns all property. When a spouse dies, all joint property will transfer to the surviving spouse, who needs a Will to assure further transfer of the assets. However, many tax benefits that a Trust could harvest may be lost if that couple simply has Wills.
Review your estate plan every two years to be sure it is still relevant and accomplishes your goals. Review it more frequently if you have married, divorced, or separated: Marriage typically alters elections people make in their estate plan, as does divorce. Other reasons to review your estate plan sooner include the birth of a child or grandchild; moving to a new home; changes in tax laws; changes in the value of your assets; changes in your relationships with beneficiaries; or changes in the needs of your beneficiaries.