Frequently Asked Questions about Estate Plans

Everything I have will go to my spouse. Do I really need a will?

That depends on whether you have children outside of your marriage and if you have any parents still living. In Massachusetts, if you die without a will but have a parent still living, your parent will inherit some of your estate. And if you have children separate from those with your spouse, they will also inherit some of the estate. In New Hampshire, if you and your spouse have children together, they will also inherit some of the estate. So only in a few specific instances will your spouse get everything if you do not have a will. It is really best if YOU decide who gets your assets and not leave it up to the intestacy laws. (“Intestate” means “without a will,” and these laws govern where your assets go when you die without one.)

I had a will done when my first child was born. Do I need to do a new will if I have more children?

Most attorneys will draft wills anticipating that couples might have more children, and they will be included in the class of beneficiaries. So in that respect, you do not need to create a new will. Many parents of young children create trusts, however, in the event that something happens to both parents. So if you are creating a new trust, funded with the assets of the estate, you will need the will to reflect that. Holly Lynch Law would be happy to provide a complimentary review of your current estate documents to ensure that they reflect your ultimate goals.

If I have a will, do I also need a durable power of attorney?

Yes. In some respects, the DPOA is even more important than the will. The durable power of attorney allows someone to take care of your affairs and access accounts while you are alive but unable to for any reason. The will allows for that only after you die.

Why is it called a “durable” power of attorney?

A durable POA is one that lasts past your incapacity and ability to revoke it. In other words, even if you become incapacitated or incompetent, your agent (called an “attorney in fact”) can still act on your behalf, and depending on how the DPOA is drafted, will not need proof of your incapacity to do so. A general power of attorney is good only while you still have capacity.

What is the difference between a health care proxy and a living will?

A living will specifies your wishes should you become incapacitated or terminally ill. Massachusetts is one of three states that do not recognize living wills (also called advance directives). While not legally binding, they do give guidance to your health care agent. In New Hampshire, however, it is a legal document. A health care proxy, on the other hand, allows your agent to make medical decisions on your behalf whenever you become unable to do so yourself. Note: just because you execute a health care proxy now and name an agent, you are still the one to make your own medical decisions for as long as you are able. So, the living will, like the health care proxy, can memorialize your end-of-life wishes, but your agent has the final say.

Are Massachusetts estate taxes calculated on the entire value of the estate or just the amount that exceeds $1m?

In Massachusetts, estate taxes will be owed for any estate that exceeds $1 million. While the taxes will be assessed on the entire value of the estate, the percentage at which it is taxed is based on the amount over the million-dollar threshold. Effective estate planning can help lower the amount of taxes owed at your death.

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