Let’s back up a minute. What happens if you die without any estate planning at all? No will, no trust, nothing. If this happens, then you die intestate. Several things happen if you die intestate.
Your estate must go through probate if you die intestate. This means the court must get involved to rule on the distribution of your assets because whatever possessions and property you have must, by law, be distributed. If you die without a will or trust, then Massachusetts law dictates how your assets will be distributed. You will not have any say in the matter. The loved ones you leave behind will have to pay legal and court filing fees for probate, will have to wait a long time for your assets to be distributed, and will find that whole process — including what was in your estate and who it goes to — is part of the public record for anyone and everyone to see.
When you die intestate, who gets your assets and how much depends on factors such as whether your spouse survives you, whether your parents survive you, and whether you have any surviving descendants. The intestacy statute( MGL c.190B, §§ 2-101 et seq) also has some explanations that you might not want applied to your estate. For example, relatives of the “half-blood” inherit the same as relatives of the “whole blood.” (MGL c. 190B, § 2-107) In addition, you may have heirs born after your death if they were in gestation at a certain time. (MGL c. 190B, § 2-108) As you can imagine, it can get a bit complicated.
How best to avoid this? Get an estate plan, even if it’s just your incapacity documents and a simple will. That is the best way to make sure your wishes are followed and those you care about are taken care of the way you want.
Awhile back, I had a potential client contact me about creating her estate plan. She was well aware that she or her husband might have to go into a nursing home at some point, and she did not want to lose her family home to Medicaid if that happened. I discussed with her at length what I thought would be the best estate plan I could draft to suit her needs. She thought it sounded great and after discussing horses – she had horses in her childhood – I hung up from our conversation and sent her the requested engagement letter and invoice. When I didn’t hear from her after several days, I called to see if she had received the email, and if she had any more questions. Well, she was beside herself. Her husband did not want to do the estate plan because he heard from a neighbor that all they needed was a $150 will by a Suze Orman, the popular celebrity financial advisor. There were no incapacity documents. There was no revocable trust to avoid probate. Perhaps most importantly, there was no Medicaid trust to keep their home safe if one of them needed to go into a nursing home. I think about this family a lot. I worry they might very well lose their family home because the husband listened to a neighbor who listed to a Ms. Orman who is not an attorney (the fine print on her documents says to consult an attorney) instead of talking with a Massachusetts estate planning attorney.
If you have to go into a nursing home, you may wind up paying upwards of $100,000 a year or more for care. For this reason, many people rely on Medicaid to help out. Medicaid may try to reach your assets after you die to pay for that care. One route they take is to try to get the family home. If you don’t have an Irrevocable Medicaid Trust, you may lose your home. This trust is a complicated legal document that you should have an attorney draft to make sure it can withstand an attack from Medicaid.
You may have seen the latest headline about 
Is a handwritten will valid in Massachusetts? Yes, if it meets certain criteria. Should you write one instead of consulting with an estate planning attorney, such as myself? Probably not. You don’t know if your will or other estate plan meets state law requirements and is valid if you don’t consult an attorney. There are also many considerations that go into deciding what kind of estate plan is best for you. Let’s look at Ms. Franklin’s situation again. Let’s assume that at least one of the wills is valid. Depending on how much her estate costs, she may have to pay a lot in federal estate tax that could have been avoided if she had the proper estate planning, such as a trust. In Massachusetts, we have a state estate tax, so you have to really be careful that your estate doesn’t have to pay that tax when you die. In addition, wills are public documents. If Ms. Franklin had executed a trust, then the distribution of her assets would have remained private.