Estate Planning Alert – Details Matter! (Or — You Don’t Know What You Don’t Know)

As we approach the holiday season many of us will attend family events.  We will be reminded of those we hold very dear and want to protect, and to be honest, some of us will realize that there are others we simply want to avoid.  Estate planning is something you do to protect those you care about and it is also done to make sure your bounty is not left to family members you don’t want to benefit from your passing.  A recent meeting with a prospective client highlights the risks of “do it yourself” estate planning and the importance of details.  Simply put – you don’t know what you don’t know.  Please read on.

I recently met with a prospective client who had questions about administering the estate of his long-time partner.  The two had lived together for many years and his now deceased partner used an on-line service to create a trust which left everything to the person sitting across the table from me.  The decedent had two main assets, a car and the home in which they lived.

After going to the registry of motor vehicles and attempting to transfer the car into his name, the surviving partner was told he needed to probate his partner’s estate to complete the transfer.  That is when the surviving partner came to see me.  Upon reviewing the trust I noticed that there was an attached Exhibit A which listed the “assets” held in the trust.  Exhibit A was completed in great detail with information about both the car and the home.   The only problem was that completing Exhibit A did not operate to legally transfer title to either asset into the trust.   There also was no will.  The partner mistakenly thought that all he needed was the trust.

A critical part of estate planning is not only preparing the required documents but also making sure that the title to any assets owned by the person who does the estate planning are appropriately titled.    If you want to transfer an asset into the trust you need to make sure the legal steps are taken to transfer the asset.  For example, if it is real property there needs to be a new deed drawn and also recorded at the registry of deeds.  If you fail to prepare this deed, the property is not in the trust, even if it is listed as an asset of the Trust on Exhibit A.

The bottom line is that unless the partner can find a deed transferring the property into the trust, the property is not in the trust and the terms of the trust will not control.    While there were certainly good intentions to leave his property to his long-time partner, the problem is that you don’t know what you don’t know.  The decedent thought that listing the property on Exhibit A as an asset of the trust was sufficient.  It was not.  Because they were not married and there was no will (just the trust), under the Massachusetts law of intestate succession, the assets will go to the decedent’s siblings, one of which was in a nursing home.

If you have questions about your own estate planning and want to confirm you assets will benefit those you desire (and not others), you should schedule an appointment to talk to your lawyer and make sure what you have done will actually accomplish what you want.  If you don’t have an attorney, call my office at 781-934-8200 for a no-cost initial consultation.

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