4 Essential Qualities Your Executor Should Have

December 1, 2010

Filed under: Estate Planning — Tags: , , — Alexis @ 9:44 AM

If you have a Will, you have an executor. You are placing a lot of trust in your executor. After all, this is the person who will be serving in your stead when you pass away—helping your loved ones, overseeing your finances, paying your final bills and distributing your property. Serving as someone’s executor can be a tough job, and choosing the right person for that job can be just as difficult.

Although it is commonly considered an honor, serving as an executor is a lot of work, and often requires a great capacity for organization, attention to detail, meeting deadlines, and more. You may be tempted to name your favorite sibling or eldest child just to keep from hurting any feelings, but your family and heirs will not be well served if you choose your executor based on emotion rather than ability.

Keeping this in mind, here are four qualities to consider when choosing who will serve as your executor:

1. Is the person trustworthy? Your executor will be privy to all of your financial secrets: reviewing estate assets, determining your liabilities and paying off creditors, settling outstanding debts, and making distributions to heirs. Chances are you don’t want all that information spread throughout the family or community.
2. Is this person organized? The person you choose will be in charge of a number of detailed tasks, both large and small. He or she will be making lists of assets, meeting court deadlines, making timely distributions for estate taxes, and more. Missing or being late for one of these many steps can draw out the entire process, costing your heirs both time and money.
3. Is this person financially savvy? One of the responsibilities of executor is to keep the estate viable (making sure the mortgage and fees continue to be paid) during the probate process. If you have investment accounts you’ll want to ensure they won’t languish and lose their value before they can be distributed to your heirs.
4. Is this person compassionate? Although probate can be a difficult and detailed process, it is at its core about the people you love. Your executor should have the ability to be caring and compassionate during this emotional time.

Part of the estate planning attorneys’ job is to help you think through who among your family or friends would be best suited for the job. If you have any questions at all about who to name, make sure to bring it up with your attorney.

End of Life Wishes & Living Wills

August 25, 2009

Clients are always asking about living wills. Massachusetts law does not recognize a living will, and it’s also impossible to write a thorough, well balanced statement of your end of life wishes in just a few paragraphs.

I provide clients with a solution to their goal, but in a much better form. I give my clients a workbook called Your Way. It is published by a nonprofit in California, H.E.L.P.: Helping People Meet Aging-Related Legal & Care Challenges.

This workbook is twelve pages long and very thoughtfully walks the reader through various scenarios you could confront in an end of life situation and what kind of comfort and care you would like to receive. For example, what matters to you the most – being with friends and family? Listening to music? Being able to help dress yourself? Under various scenarios, would you want curative care or to be kept comfortable? Who do you want with you as you are dying? Where would you want to be? A twelve-page work book written by heath care professionals does a much better job elucidating your wishes than an attorney can do in a one-page living will.

If you are not a client of this office, then log onto the Your Way website and order a workbook. If you are my client, then you already have a copy. Complete the exercises and give your family the gift of knowing exactly what you would want them to do in a crisis situation.

My Spouse Just Died – What Do I Need to Do with Our Assets?

July 24, 2009

Filed under: Probate — Tags: , , , — Alexis @ 10:53 AM

Clients often come in bewildered about what they need to do with bank accounts and other assets after a spouse has passed away. People are always the most concerned about the home.

The good news is that there is usually very little to do. Spouses typically hold most of their assets “jointly.” This means that both are equal, complete owners. If you and your spouse held your checking account jointly, it is now yours – just like that, there is nothing you need to do. Same goes for stocks, CD’s, the home, anything that you held jointly.

As for assets that your spouse held is his name alone, you will need to take some steps. If your spouse held a small bank account in his name alone, usually going to the bank with a certified death certificate will be enough, and the bank will issue the funds to you. As for anything with a beneficiary listed, like IRA’s, 401(k)’s, and life insurance policies, you will need to obtain the appropriate forms from the financial institutions, mail them in with a certified death certificate, and they will issue a check with the proceeds.

Typically a will does not need to be probated when one spouse passes away. It’s a good idea to meet with an elder law attorney. Bring in a list of all the assets you both hold, with copies of bank statements and other proof of ownership, and the attorney will help you sort out what needs to be done.  Yesterday I met with a client for just one hour and he walked out feeling confident in his understanding of the few steps he has to take to square away his deceased wife’s assets. That’s one hour well spent.

See my next blog on steps you need to take to protect yourself, now that you are single.

Putting Assets in Joint Names to Avoid Probate – Will It Work?

May 21, 2009

Filed under: Estate Planning — Tags: , , , — Alexis @ 1:32 PM

Lots of people want to avoid probate. That’s the court process that a family must go through to distribute anything that was in the decedent’s name alone upon her passing. Despite its bad reputation, probate isn’t the end of the world. Yes, it’s a hassle, and yes, there are hoops to go through, but you can hire an attorney to do most of the work for you.   

If you still want your family to avoid probate, many people opt to make all of their property into “nonprobate” assets. This is anything that has someone else’s name on it in addition to yours at your passing. For example, many people purchase homes together with the spouse. We name beneciaries on life insurance policies and IRA’s.  So why not just put someone else’s name on all of your assets and be done with it?

Because that quite likely will not result in the distribution that you would like. Let’s say Ophelia has an IRA valued at $100,000 and a life insurance policy with a death benefit of $100,000. She puts her son’s name on the IRA and her daughter on the life insurance. Easy, right? Not really. Her health care needs increase over the years and she taps into the IRA. By the time she passes away, her son inherits an IRA worth $50,000 and her daughter cashes in the life insurance policy for the full $100,000.

The best way to make sure people will inherit as you would like, while also helping them to avoid probate, is to work with an elder law attorney who can draw up the appropriate trust (if that is the right solution for you), help you properly list beneficiaries on your assets, and match you up with a qualified financial advisor who can make sure there will be enough in your estate to treat all the beneficiaries in the way you would like.

See tomorrow’s post on why it is dangerous to list a child as a joint owner of a bank account.

Do You Really Need a Will?

May 20, 2009

Filed under: Estate Planning — Tags: , , , — Alexis @ 1:30 PM

If you want to have a say in who gets your possessions after you die, then yes.  If not, then the “laws of intestacy” govern what happens to an estate when a person dies without a Will. 

A typical scenario is one parent dies leaving his spouse and children.  Without a Will, anything that was in his name alone at his passing is divided equally – one half to his wife, one half split evenly among his children.  Most people would prefer to leave all of their assets to their spouse, and then after the spouse dies, to the children.  If that is what you prefer, then you need a Will.  

What happens if you don’t have a spouse, but you do have children?  Without a Will, anything in your name alone at your passing goes to your children, divided equally among them. Generally speaking, this is what most people want. But if you have a disabled child or grandchild, this scheme will cause problems.  

If you have a spouse and no children?  The spouse gets it all. Again, probably what most people would want under this scenario. But if, for example, there are certain possessions you would like to leave to a friend or niece or nephew, or if you want to make a gift to charity, then you need a Will. 

And if you are a single person – no spouse and no children?  It goes to your parents, and if they are no longer living, to your siblings.  If your parents are using public benefits to provide healthcare (ex. nursing home), then a direct inheritance from you could upset the apple cart.  

Remember that all of the above applies only to “probate property”  – that is, anything that has only your name on it. “Nonprobate property” has your name plus another, for example, naming someone as a beneficiary on your IRA or life insurance, or purchasing a home jointly (usually with your spouse). Nonprobate property passes right to the person you have named.  

So if you think that the laws of intestacy will achieve your goals, then you probably don’t need a Will.  But if you have any particular gifts you want to make, and especially if you have any disabled family members, then you need a Will.