COMPARISON OF WILLS AND TRUSTS
Estate Planning Basics
Do you have an estate plan?
The other day I was at a party in my neighborhood when the topic of estate planning came up. This often happens when people find out that I am an estate planning lawyer. The person I was talking to asked me a question that I hear a lot: don’t you have to have millions of dollars in the bank before you need an estate plan? The answer is no. Estate planning is important for everyone.
A properly drafted estate plan provides instructions for taking care of you and your loved ones during your lifetime and distributing your assets upon death. no matter how much money you have. It allows you to distribute your assets to whomever you want, when you want, and how you want, with a minimum of fees, taxes, and court involvement.
It also names one or more people of your choosing to serve as Guardian of your minor children, and sets forth instructions for how your children are to be raised, if something were to happen to you.
A simple estate plan often consists of one or more of the following:
- Last Will – a notarized and witnessed document that should be updated when your circumstances change.
- Revocable Living Trust – a set of instructions for the management of your affairs if you become disabled or when you die. If you transfer your assets into the trust during your lifetime, you can avoid the delays and costs associated with probate. You may also save substantial estate taxes if the trust is properly drafted.
- Health Care Proxy – this document names an agent and gives that agent instructions regarding medical decisions if you are not able to make these decisions yourself.
- Power of Attorney – this document names an individual to whom you give general or specific authority to make decisions on your behalf if you aren’t able to.
- HIPAA Authorization – this permits another person to gain access to your medical records.
An estate plan will give you the peace of mind that your affairs will be in order no matter what life has in store for you and your loved ones. It is always better to put plans in place in a methodical and careful way--with expert legal advice, rather than to act hastily in reaction to a crisis.
Buying Your First Home
Purchasing a home is one of the most important transactions in your lifetime. There is often lots of emotion involved. And lots of complexity too, as you confront unfamiliar procedures, terminology and customs. All along the way, you need to understand your rights and obligations as a home buyer.
You need to understand the transaction from initial offer to final closing (and sometimes even after the closing). Here are some of the issues that that you should be aware of when purchasing a home.
- Does the Purchase and Sale Agreement contain terms which meet your needs and expectations? Terms such as purchase price, date of closing, amount of deposit, and personal property to be included—these and many others are items for negotiation. Does the agreement include a proper mortgage contingency? Does it contain adequate home inspection clauses, with the right to walk away if the inspection is unsatisfactory?
- Have you obtained the best terms for your mortgage in view of your individual circumstances? Can you get a better mortgage rate? Should you elect a shorter (or longer) term (that is, number of years) in light of your unique financial circumstances?
- How do you want to own the property? If you are a husband and wife, you have special protections under Massachusetts law. Perhaps it would be beneficial to own the property in the form of a trust for estate planning purposes.
- Do you have homestead protection, which can protect up to $500,000 of equity in your home from creditors?
- Have all issues which could affect your title (i.e., ownership) been cleared before closing? Do you have an owner’s title insurance policy which protects you in case any prior owner, bank, creditor, litigant, abutting neighbor, municipality or other individual or entity makes a claim that could affect your title?
The benefits of owning a home are great, but it is important to get off on the right foot. You need to make sure that you have all the bases covered so that you can enjoy your new home for years to come.
Common Sense Advice
WILLS REVOCABLE LIVING TRUSTS
* Do not take care of you during *Take care of you during your life
your life
* Must go through probate * Are probate free
* Are easy for disgruntled heirs * Are difficult to attack
to attack
* May not control all property * Create one receptacle for all your
property
* Cause your affairs to stop at * Offer continuity in your affairs
your death
* Are only effective at death * Are effective immediately and
distribute property after your death
* Have no adverse lifetime income * Have no adverse lifetime income
tax consequences tax consequences
*Are public * Offer privacy
*Are not viable interstate * Are good in every state
planning tools
Does Bankruptcy Make Sense for You?
When does it make sense to file bankruptcy?
The other day a potential client called to discuss whether filing for bankruptcy would make sense for him. Let’s call him Frank. It’s usually not an easy question to answer. It requires a thorough analysis of a person’s financial situation, and knowledge about the impact and ramifications of a bankruptcy filing. Frank had lost his job and depleted his savings while looking for a new job. He had also begun to dip into his retirement account. Frank was concerned that by filing bankruptcy he would never be able to purchase a house or get a credit card. He owned no other assets at the time.
What did I recommend? I told Frank that the fundamental underpinning of the bankruptcy law is to give a fresh start to honest debtors who have fallen on hard times, often through no fault of their own, but as a result of illness, job loss or the like. Bankruptcy allowed Frank to discharge his credit card debts while retaining his car and the balance of his retirement account and possessions. The bankruptcy law prevented creditors from collection activities such as harassing phone calls, lawsuits, and possible wage garnishments.
Although a bankruptcy would stay on Frank’s credit history for several years, he would have the immediate opportunity to begin rebuilding his life. After thinking through his options, Frank decided to go ahead with the bankruptcy. Shortly after this, he was able to find a new job and began to rebuild his life.
Here are key questions that you—together with a knowledgeable professional--should answer when considering bankruptcy.
--How much debt do you have and how likely are you to be able to pay these off within a reasonable amount of time?
--Are bills, letters from creditors and/or collection agencies, and the threat of a lawsuit, foreclosure, repossession, wage garnishment, etc. affecting you ability to move forward with your life?
--Would a clean slate allow you to begin to put your financial life back in order?
No one wants to file bankruptcy, and it should never be done without careful consideration of other alternatives. But sometimes the fresh start afforded by a bankruptcy is the path which makes the most sense.
Contact Today by calling (617) 658-1919
When you are in need of legal advice, you want an attorney who will listen to the facts, understand the law, and explain in plain English how the law applies to the facts of your case. Attorney Warren Hurwitz will review your options with you to determine your best course of action. He will return your phone calls promptly and provide excellent service. Here are some articles written by Warren Hurwitz that you might find helpful.
Warren J. Hurwitz
Attorney at Law