A goal of many clients is to get their estate plan in order because they had to go through the time-consuming and expensive process of probate to deal with their deceased parent’s estate and they don’t want that burden to fall on their families.  Probate is the process by which a Personal Representative (also known as Executor) is appointed by the Court to access, manage and distribute the deceased’s estate assets. The court that oversees probates is the Probate and Family Court in Massachusetts. There is a separate Probate Court for each county in Massachusetts.  A large volume of probate matters are filed each year in Massachusetts.  In addition to estate settlement matters, the Probate Courts also have jurisdiction over divorce, child custody, adoption, and guardianship and conservatorship cases.  Most people would prefer to avoid the need for probate to make it easier on their family in the event of their incapacity or death. Here are five ways through careful estate planning that you can take action now to avoid the Probate and Family Court system (for which your family will be very grateful).

1. Avoid Guardianship by Completing a Health Care Proxy

A Guardian is a person appointed by the probate court to make decisions for someone who has been deemed incapacitated (a ‘protected person’).  A Guardian is responsible for the well-being of the protected person and is authorized to take comprehensive or specific actions on behalf of the protected person depending on the situation. For example, a Guardian may consent to typical medical care and treatment but needs specific authority from the Court for other types of treatments, such as the administration of anti-psychotic medications.  The Guardian must regularly update and report to the Court regarding the care of the protected person.  Often it is a family member of the incapacitated person who must petition the Probate and Family Court to be appointed as Guardian. 

Guardianships requiring Court supervision can usually be avoided by completing a Health Care Proxy. A Health Care Proxy is a document that appoints a health care agent to make health care decisions on your behalf if you are incapacitated and is a very important part of an Estate Plan.

2. Avoid Conservatorship by Completing a Power of Attorney

A Conservator is appointed by the probate court to manage the financial affairs of an individual who is adjudicated by the court to be unable to do so.  The Conservator takes over the bank and other financial accounts of the incapacitated person, pays bills, makes decisions about how funds will be spent, which financial advisor to work with and how to invest your assets, for example.  Similar to a Guardian, the Conservator must regularly update and report to the Court about the management of the incapacitated person’s finances, income and expenses. As with a guardianship, a family member is often the one to petition the Court to be appointed as Conservator.

The time and expense of a Conservatorship may almost always be avoided by completing a Power of Attorney.  A Power of Attorney is another important Estate Planning document that appoints an attorney-in-fact to make financial decisions on your behalf.  Some Powers of Attorney only “spring-to-life” when activated by confirmation of incapacity by a physician.  Other Powers are effective immediately upon signing, which can be convenient in the event you need or want the attorney-in-fact to take care of your finances even though you are competent.

3. Sign a Parental Appointment of Temporary Agent (PATA)

Guardianships and Conservatorships also come into play if someone passes away leaving minor children. A Last Will and Testament is the document used to name someone to serve as the Guardian and Conservator of minor children.  When someone passes away, it may take a while for the Probate court to appoint a Guardian and Conservator for the minor children.  In the meantime, those minor children still need care. To bridge this gap, parents may appoint a temporary agent to care for minor children for a period of 60 days. The Parental Appointment of Temporary Agent (PATA) form designates a person who may make medical, residential and educational decisions for minor children prior to the official appointment of a guardian and conservator by the court. While completing this form does not avoid a visit to the Court, it reduces the apprehension of who will look after your children while legal custody is determined.

4. Create a Trust

Keep in mind that probate is necessary after death for assets that are individually owned and for which there is no named beneficiary.  One way to change the ownership but retain full access, use and control of an asset is by having an attorney for trusts create a Revocable Living Trust for you and fund it during your lifetime. If you are the owner of your savings account as “Jane Doe, Trustee of the Jane Doe Revocable Living Trust,” your account is no longer in your individual name and thereby avoids probate.  Some, but not all, other types of trusts also avoid probate.

5. Designate Beneficiaries of Certain Assets

Another way to avoid probate is to designate one or more beneficiaries of certain assets.  Assets that have designated beneficiaries pass outside of probate.  You may be familiar with designating your spouse as the primary beneficiary on your IRAs, 401(k)s and life insurance policies. After you pass away, your spouse will complete a form provided by the financial institution to receive the asset.  However, designating beneficiaries can be a trap for the unwary.  If the designated beneficiary is also deceased and there is no contingent (back-up) beneficiary designated, the asset must be probated. For this reason, it is important to periodically review your designated beneficiaries with your legacy planning and estate planning attorney and confirm them with the financial institution.

At Samuel, Sayward and Baler LLC, we will advise you about the best estate plan to avoid a trip to the Probate and Family Court and which is tailored to your needs and goals. Once your estate plan is in place, you may rest easy knowing that you have made it simpler and faster for your family to manage your estate if you become incapacitated or pass away.

Attorney Abigail V. Poole is an associate attorney with the Dedham firm of Samuel, Sayward & Baler LLC which focuses on advising its clients in the areas of estate planning, estate settlement and elder law matters. She is an active member and Vice President of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (NAELA).  This article is not intended to provide legal advice or create or imply an attorney-client relationship. No information contained herein is a substitute for a personal consultation with an attorney. For more information visit www.ssbllc.com or call 781/461-1020. 

March, 2021

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