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Pebble Beach
  • What is a will? And what is probate?
    A will controls the disposition of individually owned assets. Fundamentally, a will is a set of instructions for how you want your assets to be distributed after death. To prevent fraud, a will must be signed by its maker (the testator or testatrix) and by 2 witnesses. Most lawyers will have a will notarized as well to eliminate the need for a witness affidavit after the testator's death. A will also nominates a Personal Representative ("PR") to manage the administration of the estate. Probate is the process by which the will is "allowed" and the PR is granted the authority to manage the Estate assets. Again, to prevent fraud, the Probate and Family Court has to "allow" the will and grant the nominated Personal Representative's request to be officially appointed as Personal Representative ("PR") of the Estate. The PR takes control of the estate assets, pays bills and taxes, and eventually makes distributions to the estate beneficiaries.
  • What is a trust and how does it work?
    A trust is an agreement that property will be held and managed for the benefit of another. The maker of a trust is called the grantor, or the donor, or the settlor. The donor creates an agreement with another party, the trustee, which contains instructions to the trustee on how the trust property is to be managed. Similar to a will, the trust provisions include naming the beneficiaries of the trust and successor trustees. There are many different types of trusts. The most common use of trusts, however, is simply to avoid the need to probate the donor's will. This means the donor and the trustee are usually the same person, at least when the trust is made, because the client wants to maintain control over the trust property. For the same reason, it's commonplace for the donor to be the sole beneficiary of the trust until the donor's death. The trust controls the disposition of the assets that the trust owns. (Technically, the trustee owns the property -- but only as trustee and not personally.) The trustee only has control over trust owned property. The trustee does not have control over individually owned assets or jointly titled property. Estate planning involves organizing and consolidating accounts in order to simplify the management of an estate. Trusts can be essential to this process. They can streamline the management of assets when the all of the assets are under the control of the trustee. For some clients, the use of trusts can greatly simplify their estate plan.
  • What is a health care proxy and how does it work?
    A health care proxy is the legal document used to appoint an individual to make health care decisions on behalf of another. The person who makes the health care proxy is called the principal. The individual named in the document is called the agent. The health care proxy must be invoked by the principal's doctor in order for the document to take effect. The agent has no authority to make decisions on behalf of the principal if the proxy has not been invoked. The principal's doctor is required to tell the principal when the proxy is being invoked. In Massachusetts, without a health care proxy, your loved ones would have to petition the Probate and Family Court to appoint a guardian who can make health care decisions on your behalf. This is an expensive and cumbersome process, which can nearly always be avoided if you have a health care proxy in place. ​
  • What is a durable power of attorney and how does it work?
    A durable power of attorney ("POA") appoints an individual, called an attorney-in-fact, to act as an agent on behalf of another. Like a health care proxy, the maker of the POA is called the principal. In legal terms, the attorney-in-fact and the principal have a principal-agent relationship, or a fiduciary relationship. ​ A POA may be used in business transactions as well as for personal use. You must trust the person you are appointing to act on your behalf, without reservation. Depending on its terms, a POA can be a very powerful instrument. ​However, without a POA in place, your loved ones would have to petition the county probate court to appoint a conservator who could manage your assets on your behalf. This is an expensive and cumbersome process which is easily avoided by having a POA. POAs are an essential part of incapacity planning. The agent who exercises authority under a POA can only manage individually owned assets. As mentioned earlier, assets which are held in trust are managed by a trustee. An agent's authority to deal with jointly titled assets depends on a case-by-case basis, since there is more than one owner involved.
  • What is Special Needs Law?
    Special Needs Law focuses on the needs and concerns of individuals with special needs or disabilities. Special Needs Law includes incapacity planning, guardianship, conservatorship, estate planning and supportive decision-making.
  • What is Elder Law?
    Elder Law is the area of law that focuses on an individual's legal needs and concerns as he or she grows older. A major focus of Elder Law is on incapacity planning, which is planning for what will happen if a client either loses the ability to make decisions for himself or herself, or simply needs more help with decision-making. ​ Incapacity planning is something everyone should do. Incapacity planning can be as simple as making a health care proxy and a durable power of attorney. Elder Law attorneys also help clients create an estate plan and prepare estate planning documents such as wills, trusts, and deeds. ​
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