“What if…”

Recently, I met Gwen Morgan, who introduced me to a book she has put together to help her clients simplify and organize themselves when they pass away. Its a book that has all kinds of information in it, such as information a person can fill in their bank accounts, information on their kids, such as teachers, allergies, and final wishes. While a court will not recognize the What if… book as a will, it does give the next of kin a good idea and direction with the deceased final wishes. It would be a great tool to use in conjunction with a will. I generally give the What if… book to my clients complimentary. I think its a nice value add to my services. In general, people don’t like doing wills, and estate planning, as it reminds them of their own mortality. However, I think people do genuinely enjoy filling the book out, I highly recommend it.

What is probate, and why do I want to avoid it?

I frequently meet with clients and explain to them the purposes of trusts, and how they can avoid probate.  Well, why would someone want to avoid probate, and what is it exactly? 

When an individual dies, his or her estate needs to be settled.  Usually, family members will be named executors or administrators of this estate.  They will obtain death certificates, and file them with a probate court, along with an application, and some other documents, to be named executor or administrator (depending on whether there is a will or not).  The Court will then allow the will, and then everyone can rely on its authenticity.  The executor can then settle the estate, paying out funds according to the wishes of the decedant as it is laid out in the will, or according to the Intestacy Law of Massachusetts if there is no will.

Why would someone want to avoid probate?  With a simple living trust, you can appoint yourself as “manager” (the trustee) of your own property while you are alive.  In your trust, you can name a successor trustee when you die.  That successor trustee will take over as “manager” of your property.  Instead of going to probate court and being named executor, your trustee will simply have to present a death certificate and a trustee certificate to institutions that trust property has been put into, such as bank accounts.  They will be able to access your property within one week, as opposed to months, if the property had to go through the court system, and probate.  Trusts are a bit more expensive to prepare when you are living, but the time and money they save after you die makes them well worth it to your heirs, thereby protecting your legacy for your heirs. 

Living trusts and probate avoidance serve to protect your privacy.  Instead of having your estate filed with a probate court were it would be public record, the trust can be kept private between the beneficiaries even after death.  The main trust document never has to be recorded, or made a public record.

Finally, trusts also can help with asset protection.  I say help, because they are still vulnerable to some extent.  However, if done properly, it would  be difficult for creditors to gain access to assets placed in trust because of the privacy discussed earlier.  They might not find out the property ever exists. 

In short, one would want to avoid probate with a living trust to save significant time and money.  Skipping the court process saves my clients this time and money.  It also protects thier privacy, and makes it harder for creditors to touch the trust property.

KIDS!!!

Underage kids that is, are probably the most overlooked aspect of an estate plan.  Younger couples rarely have the time, money, or even desire to spell out exactly what happens to their minor children in the event of their death.  They assume their partner will take control, or that the state will nominate a guardian of their children.  Unfortunately, this can be extremely disadvantageous.  Think about your relatives for a moment.  First, think of your relatives, and then consider how they get along with your in laws.  Should something unfortunate happen to each of the biological parents, what would each side provide for the children?  Would they agree on who should watch the children?  Would they consider each other unfit? Would they want the children split up?  Would they want the children to go to the wife’s parents?  Would they want your children to live with the husband’s parents, who live out of state?  How about a woman who has a biological child and now has a same sex partner.  If something happened to the biological parent, would the families just allow the child to be raised by the same sex partner?  Would they have a problem with that? 

 Maybe you know your family situation, but there is no way to tell what will happen to your children after your death should you not provide for them properly.  It is very important to make the appropriate arrangements before this time comes, in order to avoid unwanted outcomes.  When someone doesn’t vote in an election, do they then have the right to complain about the new political leaders and their decisions?  Not really.  I believe the same applies to someone who doesn’t make the appropriate arrangements with thier children before they die.  They should have no right to complain. 

 Unfortunatly, it would be the children who end up being hurt.  What can you do to protect yourself and your family?  At the very least, set up a simple will that will spell out exactly what you want to happen to your children when you die.  There are programs you can buy at Staples and Best Buy that can help you create these documents yourself, if you are looking to save some money.  Although they are better then nothing, I usually don’t recommend these.  It would be best to see a qualified attorney.  My rates are very reasonable for a young family, I would probably charge between $400-$600 for a plan that would protect a young family for any reasonable contingency.  Give me a call or email, I would be happy to help.

 Brian W. Valanzola

440 Plain Street, Suite 7

Marshfield, MA  02050

781-834-8082

781-846-0576

brianval62@hotmail.com

www.marshfieldattorney.com

Hello All

My name is Brian Valanzola, Just thought I would start my own blog.  I am thinking about starting a law firm in Marshfield, Massachusetts, and have been weighing the pros and cons.  I think I would be able to market successfully, and to assist the people in the Town I live in.  I want to build a practice that focuses on loyalty to clients, and customer service.  I work in a firm in the city at the moment, which is a great firm, and the partner here always returns calls, takes calls, and has time for his clients.  I want to model this in a firm in Marshfield.  I would be a sole practitioner to start, and would love to see how my firm, and client base, would grow in the future.