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Glossary of Commonly Used Legal Terms

Will

A written document which disposes of your probate property and nominate a Personal Representative to manage your estate. (See the definition of probate property below at Number 4.) In Massachusetts, a Will must be signed before two competent witnesses and a Notary Public.

Trust

Generally a written document under which one or more individuals agree to hold the trust property for the benefit of the beneficiaries of the trust. The trustee is charged with a duty of utmost good faith and fair dealing. You can be your own trustee and the beneficiary of a trust as long as there are other beneficiaries after your death. Trusts can be used to manage assets for those who cannot due to age or mental incapacity. Certain trusts minimize estate taxes, and certain trusts are used in Medicaid planning. Trusts can take effect while you are alive or at after your death.

Homestead

A written declaration filed at the Registry of Deeds which protects the equity in your home from certain creditors up to $500,000.00 as provided by law.

Probate Property

Property which, for some reason, does not automatically pass to your intended beneficiaries or heirs at your death. Jointly held property, property held in most trusts, life insurance proceeds, and pension benefits are generally not probate property.

Living Trust

Although defined differently by different people, this is a trust which becomes effective while you are alive because you transfer property to it. If you transfer property, such as your home, to this type of trust, it will avoid probate at death.

Living Will

A written document in which you express your wishes concerning heroic measures, life support, and other matters in the event that you are unable to make them known due to physical or mental incapacity. Massachusetts law does not recognize living wills.

Health Care Proxy

A written document, authorized under Massachusetts law, in which you appoint another person and an alternate to make health care decisions for you, including decisions based on your living will, if you are unable to do so due to physical or mental incapacity. If you do not have a valid Health Care Proxy and become incapacitated, then a guardian must be appointed by the Probate Court to make medical decisions for you.

Durable Power of Attorney

A written document in which you appoint another person, called the “Attorney In Fact”, to handle your financial affairs, such as writing checks, selling property, and other tasks, if you cannot do so due to physical or mental incapacity. If you do not have a durable power of attorney and certain actions need to be taken on your behalf, then a conservator must be appointed by the Probate Court to act for you.

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