Frequently Asked Questions
Can I make sure my children do not get everything at once?
Yes. The advantage of having a trust is that you can control the quantity and the frequency of the distributions. If you prefer that your children do not receive the entire inheritance until they reach a certain age, for example, you can specify that age in your trust, and your trustee will be obligated to honor your wishes.
Can I make sure my dog will be provided for?
In Massachusetts, a provision to care for a pet is not enforceable. The best way to provide for your beloved pet is to leave money to someone whom you know will take care of it. There are other options, too, that we can discuss in the consultation.
What if the trustee I choose does not want to serve?
Unfortunately, the trustee you name is under no obligation to serve, and even if he or she does agree to serve, he or she may resign from the appointment at any time. So it is in your best interest to name successor trustees. You can name as many successors as you want, but if your trust does not name alternates, the court will appoint one.
What is the difference between a revocable trust and an irrevocable trust?
The difference is control of the trust. In a revocable trust, the grantor (the person who creates the trust) retains control and can change trust terms at any time. In an irrevocable trust, the grantor yields all control of the trust to the trustee. There are advantages and disadvantages to both, so determining which one is the better fit for you depends on your specific circumstances and goals.
Are living wills enforced in Massachusetts?
No. A living will, or advance directive, is a statement of your wishes and provides guidance to your health care agent, but your agent is not bound to follow it. It is a good idea, however, to include your wishes in your health care proxy, so your agent will know what your wishes are when the time comes to make decisions.
What is the difference between a power of attorney and a durable power of attorney?
A power of attorney is automatically terminated when the principal becomes incapacitated, whereas a durable power of attorney lasts up until the principal dies. Usually, the purpose of appointing a power of attorney is to make sure that someone has the power to manage your affairs when you are no longer able. If you become unable by reason of incapacity, the power of attorney will then terminate--defeating the whole purpose of appointing one in the first place.
I had a will done before I got divorced. Do I need a new one?
It is a good idea, and let's face it, wouldn't you want to draft a new one? The will itself will still be valid, although any provisions to your ex-spouse will be revoked. But you should draft a new will to state where you want the ex-spouse's share to go. Also, unless drafted in contemplation of marriage, a will created before marriage will be automatically revoked upon marriage.
You may not be able to completely avoid probate. But fear not: probate is not really the "scary" experience you may have heard about. Plus, with proper planning, many of your assets can pass outside of probate, so your loved ones will not have to worry about assets being tied up for a year after your death.
I have a will. Why do I need a trust?
A trust provides flexibility and a way for assets to pass outside of probate. A trust is an ideal instrument to allow for controlled distributions to minor beneficiaries. A trust is a great way to supplement income for a beneficiary with special needs that won't compromise his or her governmental assistance. And an irrevocable life insurance trust is an excellent way to take life insurance proceeds out of the decedent's taxable estate, thereby lowering estate taxes that may be owed.
What is this "lookback" period I keep hearing about regarding Medicaid?
When you apply for Medicaid assistance, the government will look back five years for any transfers of assets, including gifts made. Any transfers in that period that would otherwise render the applicant ineligible for assistance will create a "penalty" period, during which the applicant will be ineligible. This is why advance planning is crucial; proper transfers can prevent the applicant from being denied assistance when he or she needs it.
Will filing for bankruptcy ruin my credit?
Let's face it: if you are seriously considering filing bankruptcy, your credit is probably already ruined. After all, why would you be a bankruptcy candidate if you can pay your bills on time? Filing bankruptcy is a way to get back on track and start rebuilding your credit, to create a plan that allows you to satisfy your outstanding debts and move forward.
Does my spouse have to file for bankruptcy too?
No. While your spouse's income will be counted and considered in your filing, you are the only one who needs to file, if you so choose.
I am being foreclosed upon. Will filing for bankruptcy help me keep my house?
In many cases, yes. Determining the best course of action depends on the specific circumstances of each case. Click here for a free evaluation of your case.
Referrals
If your legal needs include civil litigation, personal injury, or family law matters, contact The Law Office of Justin St.James for information.
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