By Gina M. Barry
Partner, Bacon Wilson P.C.
Summer is here, and many people are preparing for a relaxing and enjoyable vacation. Maybe you are heading to the beach to soak up the sun? Maybe you are planning to spend time with family or friends? While travel is exciting, it is also natural to feel some anxiety. What would happen if something unexpected prevented you from returning home safely? The good news is that establishing an estate plan before your trip can provide peace of mind and help ease those concerns.
Estate basic must-haves
It is common for people to contact their attorney shortly before leaving for vacation; however, estate planning should not be rushed if it can be avoided. Ideally, you should reach out to your attorney at least one month before your departure. If time is limited, you can still put a basic plan in place and revisit it after you return home. A simple estate plan should include a health care proxy, durable power of attorney, last will and testament, and a homestead declaration if you own your primary residence.
Protecting health, finance decisions
If you were to become ill or injured while traveling and could no longer manage your medical or financial affairs, having a health care proxy and durable power of attorney would be invaluable. A health care proxy allows you to appoint someone to make medical decisions on your behalf if you are unable to do so yourself. Likewise, a durable power of attorney authorizes someone to handle your financial matters. These documents allow the individuals you trust to step in immediately and assist you when needed.
Without that protection
Without a health care proxy and durable power of attorney in place, your loved ones may need to go to court to request the appointment of a guardian, conservator, or both. This court process is often expensive, time consuming, and public. It can place significant stress on family members who are already coping with a difficult and emotional situation. In addition, if you become incapacitated while in another state, the court proceeding would likely need to occur there, creating additional complications for your family. Fortunately, proper planning can help your loved ones avoid guardianship and conservatorship proceedings altogether.
What your will does
No one wants to think about the possibility of passing away while away from home, but having a last will and testament in place can provide guidance and structure during an incredibly difficult time. Your will directs how your probate estate will be distributed. Generally, your probate estate consists of assets held in your individual name without a designated beneficiary. Your will also allows you to nominate a personal representative to administer your estate and carry out your wishes. This planning can significantly reduce the burden placed on grieving family members.
Why you need a will
If you die without a will, the commonwealth will determine who inherits your estate, and that distribution may not reflect your intentions. In addition, family members may disagree over who should manage the estate administration process. Grief often intensifies emotions and can lead to conflict among loved ones. Having a clear estate plan in place promotes an orderly administration and distribution of your assets according to your wishes.
One final document
If you own your primary residence, you should also consider recording a dclaration of homestead. A declaration of homestead is a simple document that, once recorded at the Registry of Deeds, protects up to $1,000,000 of equity in your home from certain creditor claims and judgments entered after the declaration is recorded. For example, if you were involved in a serious accident while traveling and your insurance coverage was insufficient, a properly recorded declaration of homestead could help protect a substantial portion of the equity in your home.
Travel should be a time to relax, recharge, and make lasting memories. By establishing an estate plan before you leave, you can enjoy your trip with the comfort of knowing that you have taken important steps to protect yourself and your loved ones if the unexpected occurs.
Gina M. Barry is a shareholder with the law firm of Bacon Wilson, P.C., Attorneys at Law. She is a member of the National Academy of Elder Law Attorneys, the Estate Planning Council, and the Western Massachusetts Elder Care Professionals Association. She concentrates her practice in the areas of estate and asset protection planning, probate administration, guardianships, conservatorships, and residential real estate. Gina may be reached at (413) 781-0560 or gbarry@baconwilsoncom.