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Why Should People Wish to Avoid Probate?
Patricia Bloom-McDonald • Mar 04, 2019

Probate is the legal process of transferring property and distributing assets through the court system after a person’s death. Often times, the probate process also involves the proving of a legitimate Last Will and Testament, the payment of any creditors, the filing of the deceased’s taxes, and the changing of ownership of real estate and/or personal property.

The probate process isn’t one that many look forward to – it’s time consuming, complex, and court-supervised. These reasons, as well as those listed below, are some of the top justifications for wishing to avoid the probate process:

Probate Is Public

One reason that many people wish to avoid probate is the fact that probate proceedings, which are managed by the court, are public. This means that the assets, debts, and Last Will and Testament of the deceased beloved family member will be recorded in the public record. Many families who hope to protect their privacy will attempt to avoid the probate process for this reason alone.

The Probate Process Is Long and Tedious

Not only is the probate process public, but it can also take weeks or months to conclude. This can be stressful and burdensome, both for the administrator of the estate (who is responsible for executing the probate process) and beneficiaries who are waiting to have assets distributed to them. The process can also be tedious – the estate administrator may need to prove the validity of a Last Will and Testament, perform an inventory of all assets, notify all creditors of the decedent’s death, determine heirs, and more as part of the probate process.

Probating a Last Will and Testament Can Be Expensive

How much a Last Will and Testament costs to probate will depend, in large part, on the size of the estate; filing fees in Massachusetts range drastically – view Massachusetts’ probate fee schedule online for more details. In addition to a filing fee other costs you may encounter include appraiser’s fees, administrative expenses, and attorneys’ fees as well.

Probate Is Court-Supervised

Losing a loved one is hard enough; having to be told by a court how to manage the deceased’s assets can be frustrating. In fact, sometimes a judge may make a decision about the estate that is contrary to what you or your family wishes. And because court approval may be necessary at every step in the process, you may find yourself waiting for the court to approve decisions ranging from the appointment of an estate administrator to the approval of inventory of the estate, to the requirement of a formal appraisal before property can be sold, and more.

When assets do not pass through probate, on the other hand, and are instead held in a trust, there is much more flexibility in how the property will be managed, and the process will not require formal supervision.  Trusts can be expense to have prepared; the value of a person’s assets should be considered before having one prepared.

Learn More About Avoiding Probate

Fortunately, the probate process is not always necessary, and by having a comprehensive estate plan in place, you may be able to avoid it entirely, even without a trust. To learn more about the probate process in Massachusetts and how to mitigate it, reach out to estate planning and elder law lawyer Patricia Bloom-McDonald, Attorney at Law. You can reach Patricia Bloom-McDonald, Attorney at Law by phone or online today to schedule your initial, no-cost, one hour consultation.

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Using a Credit Card When You Have a Special Needs Trust

25 May, 2023
A special needs trust (SNT) allows you to meet your needs while receiving government benefits, such as Medicaid/MassHealth and Supplemental Security Income (SSI). When you have a special needs trust, you can use it to pay for goods and services government benefits do not cover, such as therapy, education,and housing. Since receiving income directly from your trust would jeopardize your eligibility for benefits, your trustee cannot give you cash from your SNT. When you use a credit card for permitted transactions, and your trustee pays off the balance with funds from your trust, these payments to a credit card company are not considered income. An SSI or Medicaid/MassHealth recipient who is capable of managing their own affairs can therefore use a credit card to make small purchases, and the trustee of the special needs trust need not micromanage every transaction. In the past, beneficiaries of SNTs sent their bills to their trustees for payment. Today, an individual with an SNT who qualifies for a personal credit card may find that using a credit card is more convenient. Credit cards have several benefits. Using a credit card to manage payments from your special needs trust allows you to maintain independence, gain access to some of the advantages of a credit card, and easily keep records while preserving your eligibility for Medicaid/MassHealth and SSI. Although credit cards can help people manage their special needs trusts, there are also several important restrictions and considerations to keep in mind. Consult with a special needs planner to ensure all transactions are acceptable under the trust's rules and comply with government regulations. The Benefits of Using Credit Cards When You Have a Special Needs Trust If you have a special needs trust, using a credit card has many benefits, including: Independence : Allowing you to maintain your independence. You can use your card to make qualifying purchases yourself. Your trustee does not have to make the transactions for you. Access to the Typical Advantages of a Credit Card : Using it responsibly can help you establish or build credit history, which may be important for your future financial needs. Record-Keeping : Credit cards provide easy record-keeping and a convenient way to monitor transactions from your special needs trust, which can also help special needs trustees fulfill their duty to maintain records. When you use your card, your trustee can observe your purchases and ensure that all expenses are allowable under the trust’s rules. Your statements can help your trustee keep track of funds leaving the trust. Benefits Eligibility : While adhering to Medicaid/MassHealth and SSI’s income and asset limits, you can access funds from your SNT. Credit cards can help prevent your trustee from accidentally providing you with cash payments that could affect your eligibility for government benefits. Considerations When Using a Credit Card for Your Special Needs Trust While you can use a credit card to access funds from your special needs trust for certain transactions , restrictions apply. If your trustee sees a charge on your card that could affect your benefits eligibility , they can flag it for review. You cannot use your credit card to pay for food and shelter, which SSI would cover. When administering your funds, your trustee must ensure that any expenditures are for your sole benefit if you have a first-party special needs trust. While using a credit card is appropriate, you should not use a debit card. Debit cards are considered cash income. Best Practices When using a credit card for a special needs trust fund, remember several best practices. Choose a card with low fees and interest rates. Set a clear budget and monitor transactions regularly. Keep thorough records and receipts of expenses. Consult with your special needs planning attorney. A special needs planning attorney can help you navigate the rules that apply to your trust and understand how to use a credit card to preserve your Medicaid/MassHealth and SSI eligibility. 

How an ILIT can help offset estate taxes

12 May, 2023
With the Federal estate tax exemption possibly about to be lowered, it may be time to think about steps you can take to keep your estate from being taxed. An irrevocable life insurance trust allows you to pass on money to your heirs while avoiding both the federal estate tax, as well as any applicable state estate tax which is currently $1 million in the Commonwealth of Massachusetts. Senate Democrats have proposed lowering the current estate tax exemption from $11.7 million for individuals and $23.4 million for couples to $3.5 million for individuals and $7 million for couples. While it is unclear if this proposal will pass, it is likely that some change to the estate tax is coming. Even if Congress does not take any action, the current rate will sunset in 2026 and essentially be cut in half, to about $6 million per individual. In the Commonwealth of Massachusetts, the current estate tax exemption is $1 million for individuals and is taxed at dollar $1.00. A proposal to raise it to $3 Million and the tax to start at $3 Million (not at $1.00) has been submitted in the legislature but has not yet been voted on or enacted. One way to make up for any estate tax your estate may have to pay is by setting up an irrevocable life insurance trust [ILIT]and funding it with a policy that has a death benefit that would pay your heirs some or all of the amount your estate will be taxed. If you purchased such a life insurance policy directly, it could end up being taxed as part of your estate. But if a trust owned the policy, it could pass outside your estate. While a life insurance trust can be highly beneficial, it is also complicated to set up and maintain properly. The following are some of the requirements: Trustee . If you are setting up the trust, you cannot also serve as a trustee. If you are the trustee, you have control of the trust, which could lead to the trust being included in your estate. You will need to name another trusted person or financial institution to act as trustee. Policy ownership . The trust must own the life insurance policy. If you transfer an existing policy to the trust and die within three years, the policy will still be considered a part of your estate. To avoid this risk, the trust can purchase a policy directly rather than receive an existing policy. Premiums . You need to transfer funds to the trust to pay the policy premiums, which creates an issue with gift taxes. A transfer to a trust is usually not subject to the $15,000 yearly gift tax exclusion. For a gift to qualify for the exclusion, the recipient must have a "present interest" in the money. Because a promise to give someone money later does not count as a present interest, most gifts to trusts aren't excluded from the gift tax. To avoid this, you can use something called a “Crummey” power which gives beneficiaries the right to withdraw the funds transferred to the trust for up to 30 days. As part of the process, the trustee needs to send them a letter, known as a Crummey letter, letting them know about the trust funding and their right to withdraw the funds. After the 30 days have passed, the trustee can use the funds to pay the annual insurance premium. You run the risk of the beneficiaries withdrawing the funds, but if they know that by allowing the money to stay in the trust they will receive more money later, it shouldn’t be a problem. Beneficiaries . The beneficiary of the life insurance policy is usually the trust. Once the funds are deposited in the trust, the trustee can distribute the assets to the beneficiaries in the way specified by the trust. For example, if your beneficiaries are minors, you can wait to have the trustee distribute the assets. Keeping the assets in the trust will also protect them from your beneficiaries’ creditors. The downside of an irrevocable life insurance trust is that you do not have the ability to change it once it is set up, although the policy would effectively be canceled if you stopped paying the premiums. If you are considering this type of trust, discuss it with your attorney.
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