Our firm handles probate matters in all Rhode Island jurisdictions and southeastern Massachusetts. We are experienced at everything from small estates and simple formal probate procedure to full trial contested matters. We provide services for any areas of law within the jurisdiction of the probate court including, testate, intestate, guardianships, change of name and admittance of foreign wills. We write wills with all proper formalities in both Rhode Island and Massachusetts. We have standard wills for single persons, married couples, couples with minor children who need contingent trusts, persons with disabled children who need supplemental needs trusts, and those people in second marriages with or without children from prior marriages. The key to a well-written will is often in the information provided to the testator that never gets included in the will itself. For example, advising clients how to designate beneficiaries on life insurance policies or IRA accounts is one of the key aspects of the estate plan and the drafting of the will. However, this information is not included in the will because money may pass directly to the beneficiaries outside of the will under the terms of the contract for insurance. It is critical that a will is written precisely without ambiguity because when it is being read by its intended audience, the probate court, the testator is not alive to clarify disputes. A will can be one of the simplest documents in your estate plan for the attorney to draft, but precision and experience are essential to the will's quality. Some of the most complex documents in your possible estate plan are trusts. The beauty of a trust is that you can include any language you desire. Therefore, it can be as wordy, articulate, precise and thorough as you may wish. It can have separate provisions for all imaginable future outcomes and it may speak well into the future even after the creator's death. Trusts may be revocable or irrevocable, living or testamentary, single or joint, tax planning or marital, and supplemental or Crummey. No matter the purpose, all trusts have the same essential elements: one or more trustees who handle the assets within the powers set forth in the trust; one or more beneficiaries who benefit from the assets of the trust; a corpus of trust assets; a definitive end; and rules for the trustees to follow regarding the distribution of the income and principal of the trust estate. Proper advice of counsel as to which provisions to include, which type of trust to draft and how the distribution of assets should occur is essential to insuring your wishes are carried through after you die. Probate, Wills and Estate Frequently Asked Questions
Most likely, yes. Anyone who has minor children should have a will to appoint a Guardian in the event of both parents dying while the children are minors. Anyone who wishes to distribute her estate in an alternative manner to the intestate laws prescribed by the state of residence must have a will. A person who dies without a will, dies intestate. Under these circumstances, the laws of intestacy as prescribed by the state of residence will govern the disposition of the estate. 3) Can I avoid probate if I have a will? No. Probate is the process of validating a will. In order for a will to be valid and have force and effect, a probate judge must approve the will in court and appoint an executor who will handle the estate. 4) If I die with minor children, who will handle my money for them? If you have minor children, a trust should be established for the time period until they reach the age of majority or another age selected by the testator. You, the testator, would also appoint a trustee to handle the assets of the trust for the benefit of your minor children until such time as the corpus of the trust is to be given to the children. 5) Can I appoint the same person as executor, trustee and guardian? Yes. The same person can fulfill all of these duties, but it need not be the same person. For practical reasons, having the same person as guardian and trustee simplifies matters. However, if one person is great with children but poor with finances, it may make sense to split the duties. 6) How can I avoid the probate process? A person's estate will not need to be probated if the person did not have assets in her name alone at the time of death. Therefore, one way to avoid probate is to own all of your assets jointly with another. The better approach is to create a living trust. A trust is a separate entity which has its own legal existence apart from the settlor or grantor of the trust. The assets in the trust are governed by the trustee or trustees of the trust which can be the same person or persons who created the trust. One benefit of the trust is that it does not need to be probated in order to be valid and effective. It works without court administration or supervision. This saves the time and expense of the probate process, but trusts are more expensive to draft and put into effect than a will. 8) What other benefits are there for creating a trust? The creator of the trust has the freedom to include any trust provisions they desire. This flexibility allows for the unique situation to be handled in a precise and delicate manner. For example, a spendthrift child can be controlled, or an inflicted or disabled child can have detailed provisions for their care and maintenance. There are also special trusts to be utilized for tax planning purposes if the estate is taxable either federally or at the state level. In 2006 and 2007 the limits are $675,000 in Rhode Island and $2 million federally. These limits are adjusted for inflation in the coming years. Please contact our office if you believe you may have a taxable estate.
Elder LawThe field of Elder Law covers all topics of specific interest to those people 65 and over. The basic concerns of wills, powers-of-attorney, healthcare agent designations and estate planning are all encompassed by the practice area of Elder Law. However, the biggest area of concern to many aging citizens is the fear of losing a substantial portion of their assets in the event they enter a nursing home. Asset protection and Medicaid Planning are the common catch-word phrases for this area of concern. Below are some Elder Law FAQ's. Please contact Matthew Slepkow if you have any further questions in this field as the landscape of Elder Law is constantly changing. Elder Law Frequently Asked Questions
1) What documents should I have in my estate plan? Every person over the age of 65 should have the following documents: a will, a health care power of attorney and a financial power of attorney. A Living Will is also referred to as a Healthcare Power of Attorney. It allows you to designate another person to make healthcare decisions in the event you are unable to make them for yourself. For example, if you are unconscious or incompetent, your healthcare agent will make all necessary decisions regarding your care. You can specify your wishes in the document so your agent knows how to treat you on your behalf. 3) Will the State take my house if I go into a nursing home? No. The State of Rhode Island will not take your primary residence at any time while you are alive or your spouse is alive. The State may hold a lien against your estate after your death, at which time the house may need to be sold to satisfy the lien. However, the lien is never placed while you are alive, and if you are survived by a spouse living in the residence, the lien is extinguished at your death. 4) What steps should I take to protect the house in case of nursing home costs? One of the best ways to add protection in your estate plan is to transfer the title of your primary residence to your children while retaining a life estate. The life estate allows you to live in the house for the remainder of your natural life, while transferring the title of the house to the children. This method provides complete protection for the house after any applicable penalty period has expired and does not have any adverse tax consequences. 5) Are there any means for me to retain control of my assets while simultaneously protecting them from the reach of nursing homes? The short answer is no. The basic principle is that if you can reach or control your assets, then the nursing home can reach and gain control of those assets. There are various means of asset protection that can be employed and you should seek our counsel. 6) What law will govern the strategies and state determinations? The regulations of your state of principal residence will govern all medical assistance decisions. The system is federally legislated, but locally regulated. Each state has its own enforcement procedures which must be adhered to strictly.
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