Living trust and estate planning form on a desk.

Living Wills vs. Living Trusts in Massachusetts

Regarding estate planning, living wills and living trusts are two essential tools to consider. Both can help ensure your wishes are fulfilled, but they accomplish this differently. Here’s an overview of how living wills and living trusts work in Massachusetts: 

Living Wills:

A living will is a legal document that lets you state your wishes for medical care if you become terminally ill or permanently unconscious. It goes into effect only under those specific circumstances. Often, it is referred to as a health proxy, but that’s not exactly right. More often, it is correctly referred to as an advanced directive. Living wills are not legally binding in Massachusetts. However, a Living Will allows individuals to provide information to their healthcare agent and healthcare providers regarding their preferences for medical treatment, focusing on end-of-life decisions. A document like this can also help end a family dispute about what a loved one ‘would want.’

Most of my comprehensive estate plans will include a Living Will or Advanced Directive and are still of use even if not legally binding. 

In your living will, you can:

– Decline life-prolonging measures if you have an incurable illness or injury. This may include declining a ventilator, CPR, surgery, dialysis, antibiotics, or tube feeding.

– Request comfort care to relieve pain and make you comfortable. This may include pain medication or palliative care.

– Name a healthcare proxy to make medical decisions if you can’t make them yourself.

Even if not legally binding, a living will should probably be executed and follow specific signing requirements. These include being signed and witnessed by two adults. Your healthcare proxy should be a witness. Living wills are relatively simple and inexpensive to create independently, but this is not advised; you may want an attorney’s help to ensure it is legally binding.

Living Trusts:

A living trust is a legal arrangement that lets you place assets like your home, bank accounts, or investments into a trust while still alive. You then name a trustee to manage the support for your select beneficiaries. Fortunately, you can name yourself as the trustee and yourself as the beneficiary, thereby maintaining all of your ownership power, but still have very specific directives on the distribution of your estate to your spouse or your loved ones without the intervention of the Probate Court.

Living trusts can help streamline probate and allow your estate to transfer to beneficiaries without court supervision after death. The assets in your living trust do not need to go through probate.

In Massachusetts, living trusts must be signed and notarized to be valid. You can amend or revoke them if your circumstances change. There are costs involved in setting up a trust, including legal fees to create the documents. I would not advise anyone to attempt to make one independently unless they are a trained attorney, as they are very complicated documents with numerous legal requirements.

The main differences between these two tools listed above are when they take effect and what they cover. A living will assists only in controlling end-of-life medical decisions; even then, it is just an advisory. A living trust handles your assets after you pass away. Many people use both as part of a complete estate plan.

It is important to note that probate and estate matters can be complex, and the laws change over time. Suppose you are dealing with issues related to estate planning in Massachusetts. In that case, it is advisable to consult with the experienced estate planning attorney, Attorney Robert C. Finlay IV, who can provide guidance specific to your situation and the most up-to-date information on the relevant Estate Planning laws recognized by the Commonwealth of Massachusetts.

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