The Massachusetts South Shore Real Estate Blog: Have You Thought Through Your Succession Plan?

As turkey day looms, we want to discuss a very important topic that most of us put off: Estate Planning. 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 (bcote@stiles-law.com) or his paralegal, Christine Guerrier (cguerrier@stiles-law.com) to schedule a consultation. As always, you are welcome to call (781) 319-1900 to schedule an appointment.

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Stiles Law, with offices located in Boston and Marshfield, Massachusetts, is a firm concentrating in real estate conveyancing and mortgage lending services, representing buyers, sellers, borrowers, banks, mortgage companies, investors, builders and developers in all of their real estate and mortgage transactions. 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, and Quincy.

Copyright © 2017 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. No child labor laws were breached during the creation of this Blog, further Bob Bonkley was compensated for his likenesses and appearances in the same.

The Massachusetts South Shore Real Estate Blog: An Explanation of How to Take Title with other People

The Massachusetts South Shore Real Estate Blog: An Explanation of How to Take Title with other People

Buyers are often a little surprised to learn as the closing approaches that an important decision remains: “how would you like to take title?”  Confusion with this topic is understandable: this concept uses arcane terminology and is not generally discussed outside of the context of buying property. It’s high time that this important concept is discussed so that Buyers can make an informed decision.

The Basics: In most circumstances, if you are purchasing a property by yourself, you don’t have any decisions to make–you will take the property “individually.” There are three ways to take title with another person–tenants in common, joint tenants, and tenants by the entirety. Contrary to what these names suggest, these terms have nothing to do with leases or renting. Each refers to a different kind of ownership of property shared between two or more people.

  • Tenants in Common:  Under this form of co-ownership, two or more people each own a share of the property. These shares can be unequal in size and can be freely transferred without the other owner’s permission. Each owner has a right to occupy and use all of the property. Tenants in common have no right of survivorship, that is, if one of the owners dies, that person’s interest would pass under their estate by will or intestacy.
  • Joint Tenants: Unlike tenants in common, joint tenants have equal shares of the property. Each may use or occupy the entire property. Possibly the most significant difference between a tenancy in common and joint tenancy, joint tenants have an automatic right of survivorship, that is, if one owner dies, the other owner(s) will be vested with the deceased owner’s interest in the property.
  • View More: http://aliciaschneiderphotographers.pass.us/noonanTenants by the Entirety:The law treats married individuals who elect to take title as tenants by the entirety as one person. Importantly, tenants by the entirety enjoy an automatic right of survivorship–though technically speaking, nothing transfers at the death of the other spouse as each owned the “entirety” of the property. Further, neither party can transfer his or her interest in the property without the permission of their spouse and any encumbrance, e.g. a second mortgage granted by one spouse, does not encumber the non-granting spouse’s interest in the property. Similarly, the creditors of one spouse cannot levy against the property interest held by the other spouse.

Sophisticated real estate investors have many more options when it comes to taking title. There are vehicles in which the investor can take title, including: realty trust, investment trust, limited liability company, corporation, just to name a few. These vehicles can provide tax benefits, limitation on liability, and greater anonymity, but the intricacies and benefits are too numerous to discuss here. With rare exception, the vast majority of residential consumers will take title individually, in a tenancy in common, joint tenancy, or tenancy by the entirety.

Each of these types of ownership has advantages and disadvantages. Prospective owners should evaluate their specific situation and needs, with the help of an experienced Real Estate attorney, to be sure that they are selecting the right form of co-ownership.

Stiles Law, with offices located in Boston and Marshfield, Massachusetts, is a firm concentrating in real estate conveyancing and mortgage lending services, representing buyers, sellers, borrowers, banks, mortgage companies, investors, builders and developers in all of their real estate and mortgage transactions. 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, and Quincy.

Copyright © 2014 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. No child labor laws were breached during the creation of this Blog, further Bob Bonkley and Molly Moraine were compensated for their likenesses and appearances in the same.

[whohit]Forms of Co-Ownership [/whohit]