Ben Cote 6/6/18 Ben Cote 6/6/18

Personal Representatives - Who Can and Who Should be Nominated?

The Massachusetts Uniform Probate Code (“MUPC”) changed the antiquated terms of Executor and Executrix (a distinction which doesn’t pass muster for purposes of gender equality alone) to the gender neutral “Personal Representative.” The Personal Representative is a fiduciary who manages the affairs, liquidates assets, and distributes the estate to devisees. Who can, and more importantly, who should serve a Client’s Personal Representative.

Who can serve? Any person who is over eighteen years old and whose service wouldn’t be “contrary to the best interests of the estate.” M.G.L. c. 190B § 3-203(f). This is a fairly low bar. As a consequence, family members, friends, acquaintances, corporations, and even an attorney can validly be named as Personal Representative of an estate. A minor may even be named; however, that person may not serve until they reach the age of majority.

Who should the Client nominate to serve? The Client should give this decision careful consideration. First, the Client should almost always name an alternate Personal Representative should their first choice be unwilling or unable to serve. Second, the Client should consider whether they wish to nominate a single Personal Representative or more than one. If the Client wishes to name more than one Personal Representative, their decisions must be unanimous; however, the Client can designate a single Personal Representative to make decisions on particular matters-such as the sale of real estate. The obvious risk associated with multiple Personal Representatives is the chance for deadlock and disagreement between them. In my estimation, it is almost always “asking for trouble” by nominating multiple Personal Representatives to serve jointly. It is certainly difficult, for instance, to choose one child over another. It's better to bruise an ego than set up a probate court battle that could splinter a family forever.

A Personal Representative is usually an individual, though an institution can serve. Institutional service usually only makes sense in the case of a large estate or one where professional competence is important. The Personal Representative is, by default, entitled to reasonable compensation. The Client should consider whether the Personal Representative should receive compensation or not. Something along the lines of:

It is my intention that my son, John Smith, be entitled to reasonable compensation for his services as Personal Representative.

It is my intention that my son, John Smith, serve as Personal Representative serve WITHOUT compensation for his services.

Compensation is often a sticking point between devisees. This is especially true if the Personal Representative is a devisee him or herself.

Finally, it almost goes without saying that the Personal Representative should be responsible, thoughtful, and someone that the Client trusts with the important task of handling large sums of money in an efficient, honest, and transparent manner. A history of criminal activity, substance abuse, acts of immaturity or acts of imprudence counsel against their nomination.

Selecting the appropriate Personal Representative is a central consideration for many Clients. The Estate Planning Attorney should carefully probe the Client’s thought process and offer advice given past experience.

Stiles Law, with offices located in Boston and Marshfield, Massachusetts, offers estate planning services including wills, trusts, powers of attorney, guardianship nominations, and more. Stiles Law serves all areas of eastern Massachusetts–the North Shore, Boston, and Cape Cod, in addition to the entire South Shore, including: Plymouth, Kingston, Duxbury, Hanover, Pembroke, Marshfield, Scituate, Norwell, Cohasset, Hull, Hingham, Weymouth, Braintree, Milton, Quincy, Dorchester, Charlestown, Brookline, Dedham, Canton, Rockland, and everywhere in between..

Copyright © 2018 Stiles Law, All rights reserved. Stiles Law is a Massachusetts licensed law firm and all content is based on Massachusetts law. The information presented above is meant to be used for general informational purposes and it should not be construed as legal advice or legal opinion on any specific facts.

Ben Cote 5/30/18 Ben Cote 5/30/18

Joint Ownership - Ripe Area for Probate Disputes

Many clients hold accounts in joint name for convenience purposes. A common reason is to allow for access even if the co-owner is incapacitated. It’s an understandable oversight that this convenience can result in serious unintended consequence: the joint owner will succeed to full ownership outside of the probate process. This is a recurring issue in many estates that we handle. Some are resolved amicably, some are not.

To eliminate this challenge, we take two steps: first, we carefully review the client’s assets. Part of every consultation is asking who is named on each account. Second, we make certain that specific language is included in the Client’s will to achieve their goals. This language will either direct that the joint tenancy is confirmed and that assets are to pass to the surviving co-owner of the account. Alternatively, we will employ a “set-off” against the devisee’s share of the Client’s estate. What does this look like in practice:

I give and devise the sum of $10,000 to John Smith; provided, however, that this amount shall be reduced by the full value, up to the whole of this devise, of any assets owned jointly between me and John Smith, that pass to him outside of this will by right of survivorship.

This type of language is an important. In cases where one of the client’s children is a joint owner of an account, perceived unfairness or overreaching can be remedied by “setting-off” that child’s share. Families are splintered by relatively modest sums. Regardless of the solution or language that is chosen, the Estate Planning attorney should carefully explore the impact that jointly-owned property may have on the Client's estate.

Ben Cote 5/27/18 Ben Cote 5/27/18

Estate Planning: The Basics

Somewhere between cleaning out the basement and washing those upstairs windows, estate planning is often regarded as that thing that we’ll get to someday. As we all know, unfortunately, there is never a guarantee that there will be a someday. In that vein, this week’s blog article is dedicated to the basics of Estate Planning and the process to complete one.
Estate Planning is a broad term that describes planning done during a person’s life to settle their affairs and transfer assets upon their death. There are countless variations and considerations, but we’re going to tackle the instruments that the vast majority of our clients ultimately sign. The following documents are the four instruments that we think EVERYONE should have:

Will: A will is a document that nominates a Personal Representative to distribute your estate (assets) to named people or organizations. In most cases, a married couple will leave the entirety of assets to the surviving spouse, with the children taking if there is no surviving spouse. A will works for smaller estates or for clients who want to avoid the expense of more complex trust planning.
Guardianship Nomination: This document is highly important to families with minor children. It sets the parents’ preference for who should look after minor children if the parents are unable.
Power of Attorney: A power of attorney is a document which authorizes another person to take actions on one’s behalf. Perhaps you are traveling overseas or are incapacitated in some way. A power of attorney allows your fiduciary to make legally binding decisions on your behalf during your incapacity or absence.
Healthcare Proxy: We like to describe this as a Power of Attorney for healthcare decisions. Suppose you’re in a car accident and are unconscious. A healthcare proxy allows your fiduciary to make medical decisions on your behalf.

Why do we need estate planning.

There are many reasons, some of which you may already be anticipating, why a person should have an estate plan:

Lack of control: without an estate plan, the rigid rules of “intestate succession” ultimately determine where your assets go. “Intestate Succession” refers to the default rules governing distribution of assets when a person does not have a will. Most people are uncomfortable letting the government decide who takes their assets upon their death.
Unintended consequences: Intestate succession has some counterintuitive results. Blended families, where some children aren’t born of both spouses, can be thrown into turmoil when the surviving spouse only takes half of the other spouse’s estate. That heir that you haven’t spoken to in twenty years may be entitled to a large portion of your assets.
No Access to Funds: Intestate estates need to be probated at court. Court can take many months before any assets are available. By executing a will, this length of time is shortened so surviving family members have quicker access to funds. Some clients wish to shorten this waiting period even further by executing and properly funding a trust or trusts—a topic for a future blog.
Minor children: without a strong guardianship nomination, determining a guardian before the probate court can take many months. Losing a parent is made worse when the child is then the subject of a legal battle for guardianship.

Estate planning is a necessary chore. While it may be uncomfortable to consider, the process is actually quite painless. This is especially true in light of the consequences of not having an estate plan. If you would like assistance creating your estate plan, please contact Attorney Ben Cote or his paralegal, Christine Guerrier to schedule a consultation. As always, you are welcome to call (781) 319-1900 to schedule an appointment.

Personal Representatives - Who Can and Who Should be Nominated?

Joint Ownership - Ripe Area for Probate Disputes

Estate Planning: The Basics

Call Stiles Law at 781-319-1900. One call does it all!