Elder Law and Wills

As an Elder Law attorney I am often asked “Why do I need an estate plan? I don’t have an estate!”

An estate plan is nothing more than a group of documents that when properly drafted provide instructions to those you love about how you want your property (including yourself) to be cared for and managed if you become ill and/or die. The need for an estate plan has nothing to do with how much property you may or may not own. In fact, everyone from the age of 18 and older should have at least a Basic Estate Plan which should include a Will, a Power of Attorney and a Healthcare Proxy.

The focus of this blog is about Wills.

  • If you do not have a properly drafted Will upon your death, your property will be distributed in accordance with the laws of your State.
  • Many people falsely believe that the State will take your property, but that only happens on rare occasions when no heirs can be identified.
  • A Will allows you to appoint who you want to manage your estate when you die, if you don’t have a Will anyone can seek court permission to take charge of your property.
  • For people with minor children, the Will allows you to name who you would like to be guardian of your children. If you don’t have a Will, anyone could ask the court for permission to manage your affairs and assume guardianship of your children, even people you would not have wanted.
  • State laws vary, but in Massachusetts your property will be distributed in accordance with the Massachusetts intestate laws. These laws are strict and don’t always achieve the outcome you may want.
  • For elderly clients with a spouse in a nursing home it is extremely important to have properly drafted Will as demonstrated in the following example:

Consider a married couple with one spouse in a nursing home which is being paid for by Medicaid. Now assume the spouse living at home dies without a Will. In almost every instance the spouse in the nursing home is going to receive most, if not all, of the property in the estate (investments, CDs, house, etc.) in accordance with the intestate laws. The problem is that when a person receiving government assistance in a nursing home receives an inheritance, the govt. assistance is immediately stopped and the inherited assets must be used to pay for the nursing home care until used up or the nursing home patient dies. When you create a Will, the law grants YOU the right to decide who gets your property.

In our example, a simple Will leaving some or all of the property to the children or a third party would have prevented the nursing home from getting the entire inheritance.

So remember to “Have the Will to Plan Ahead!”

Merrill J. Atkins, Attorney at Law

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