A Will
A will is the cornerstone of any estate plan. Some people think that a will is unnecessary because either they do not consider themselves wealthy enough, or because they think all their assets will simply pass upon death to their spouse or other family members or friends. In reality, the total value of one's home, possessions, retirement benefits, and insurance can easily approach the level where estate taxes are owed. Also, only property held jointly passes automatically to a spouse or other joint owner. Without a will, the probate court will determine the disposition of any asset owned by the decendent only (i.e., a checking account held in the decendent's name only.) A will communicates a set of instructions directing how one's assets are to be distributed to surviving beneficiaries. If a will's instructions are absent, the probate court will distribute estate assets pursuant to statutory provisions as set forth in the M.G.L. c. 190 et seq.

Creating a will is not a difficult task. Legal counsel is advised for the preparation and execution of a valid will in order to minimize the duration and cost of probate, and to prevent the will being challenged and declared invalid. If the will is declared invalid, the court distributes the estate assets as if the will were never prepared and executed.

Before a will's provisions take effect, the will must be presented before a court in order to probate the will and become part of the public records. During probate, the will can be challenged by anyone who has a claim against the estate. Challenges to a will include technical errors, mental incompetence of the grantor, or charges that the will was executed under duress. Moreover, probate is costly and, if protracted, can erode the estate. It can be emotional for the family. Ultimately, without a valid will, the provisions made for your family could be altered or, in some instances, thwarted.

Power of Attorney
A power of attorney is a written instrument in which one person (principal) designates to another person (agent) the authority to act on the principal's behalf. The duration and scope of the authority is within the discretion of the principal and is detailed in the instrument along with the type of triggering event that commences the agent's authority. The principal can revoke the authority anytime. A durable power of attorney extends the agent's authority beyond the point at which the principal becomes incapacitated. The agent's authority, in any event, terminates upon the principal's death. The scope of the authority can range from oversight of a small checking account to representing the principal in all legal and financial matters.

If you were to become incapacitated without a power of attorney in effect, your family would be forced to appear in court and seek guardianship. If there are disputes within the family over who should be named guardian, the court would be forced to either choose among the competing family members or appoint an independent third party to make decisions on your behalf. Because the power of attorney is such a potent document, most states have formalities for its execution that require the assistance of a lawyer. Furthermore, the principal must choose an agent carefully to ensure that wishes are carried out.

Health Care Proxy
A health care proxy is a specialized power of attorney whereby the agent makes health care related decisions on behalf of the principal. Such proxies may include more extensive language pertaining to the principal's medical care, advance directives or Living Wills. Again, with the aid of a lawyer, the principal carefully chooses an agent to ensure that the principal's wishes are honored. The health care proxy details end-of-life decision making, such as the principal's removal from life support systems. The principal can designate anyone including a spouse, child, friend, etc. to serve as agent.

Homestead Declaration
The Homestead Declaration protects against the attachment, levy, or forced sale of your principal residence to satisfy certain debt. Pursuant to statute, a homeowner in the Commonwealth can, for a nominal fee, file for the Homestead Declaration at the registry of deeds in the county in which the residence is located. While this exemption does not protect the residence from every kind of collection action (i.e., tax assessments, mortgages, debts that predate the Declaration, etc.) it offers up to $300,000 protection to the owners of the residence.

Cheryl Dunn, Esq.

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