Reviewing Your Estate Plan after the Death of a Loved One

The death of a loved one is never easy. Regardless of your relationship with the deceased (for example, a relative, significant other, or close friend), you need space and time to process and grieve your loss. Once you have had time to cope with all that has happened, you should consider updating your estate plan in light of your loved one’s death.

Although your estate plan primarily focuses on what will happen if you become incapacitated (unable to make or communicate your wishes) or die, the death of a loved one can have a significant impact on your planning. If you have an estate plan, one of the first things you need to do when a loved one dies is to review the documents with the following questions in mind:

Will vs. Revocable Living Trust

Was your loved one who passed away listed as a devisee in your will or revocable living trust? If so, do your documents explain what will happen to that money or property if they pass away before you?

One of the key reasons for creating a will or revocable living trust is to ensure there’s a clear plan for distributing your assets after your death. If you have specific preferences about who should inherit your money and property, it’s important to name those devisees. Additionally, you should also specify who will inherit if your first choice passes away before you.

If your will or trust doesn’t name a backup devisee, the gift is canceled when your first-choice devisee passes away. The money and property you wanted to give them then become part of your general estate and are given out based on the rest of your will or trust.

This cancellation can be problematic if your devisee has a spouse, children, grandchildren, or other loved ones whom you would have wanted to receive the devisee’s inheritance instead.

Antilapse Laws

In Massachusetts, there is a law called the antilapse statute (MGL Chapter 190B, Section 2-603) that helps if a devisee, like a child or grandchild, dies before you. Instead of their inheritance being canceled, it can go to their descendants, unless your will or trust says something different.

This law makes sure that your assets still go to family members, even if your first choice for a devisee isn’t alive. It’s important to review your estate plan to make sure these kinds of situations are handled the way you want them to be.

Some states have antilapse laws that allow a devisee’s heirs to inherit if the devisee passes away. There are a few exceptions that vary depending on where you live. For instance, some states only allow blood relatives to benefit from antilapse laws, which prevent gifts from failing if the person you named in your will dies before you.

Is a trusted decision-maker now deceased?

In your estate plan, you probably chose a few key people to make decisions for you if you can’t do so yourself. These could include agents under your financial and medical powers of attorney or a successor trustee. You also likely named someone, such as a successor trustee or personal representative, to handle your affairs after you pass away.

If your deceased loved one held any of these positions, make sure a backup was nominated. If not, you need to update the affected document to include a new first choice and at least one alternate.

If you have already named a backup in the document, you will want to update your document to name your backup as your new first choice and remove your deceased loved one’s name to prevent confusion when a third party reviews the document.

Important Roles In Estate Planning

When diving into estate planning, it’s crucial to understand the key roles that come into play, as they help ensure that your wishes are carried out properly.

Personal representative

This trusted individual, appointed in your last will and testament, is responsible for collecting all your accounts and property, paying your outstanding debts and taxes, and distributing your money and property to your named devisees after your death.

This person’s task is to wind up your affairs, which can be time-consuming. If your chosen personal representative dies before you and there is no named backup at the time of your death, the probate court will use your state’s laws to determine who is next in line to serve as personal representative.

Co-trustee or successor trustee of your trust

This trusted person or group, either serving alongside you as a co-trustee or successor trustee if you become incapacitated or pass away, is responsible for managing, investing, and distributing the money and property in your trust. They handle these tasks for you during your lifetime if you’re unable to, and after your death, they ensure your devisees receive what you’ve planned to give them.

If your deceased loved one was a co-trustee with you, you should review your trust agreement to see what happens next. There may be a provision that either allows you to continue serving as the only trustee, names a specific person to step in and serve with you as co-trustee, or describes how to determine who your new co-trustee will be.

If your deceased loved one was named as your successor trustee, nothing noticeable will happen with respect to how your trust is managed right now. However, if you become incapacitated or die and there is no successor trustee, your loved ones must look to your trust agreement for guidance on filling the vacancy.

Your trust may provide that a certain number of your devisees can appoint a new trustee without court involvement, or your trust might require that the court approve any new trustee.

The result will depend on the wording of your trust and your state’s laws. Since your trust is revocable and can be changed during your lifetime, it’s a good idea to update it to name a new successor trustee or make any necessary changes while you’re still able to do so.

Agent under a financial power of attorney

Your agent is someone you choose to handle your property and finances, like talking to your mortgage company, paying bills, or using money from your bank account to take care of you. If the person you picked has passed away and there is no backup named, no one will be able to manage these things for you when needed.

If you can no longer manage your property and finances and haven’t appointed an agent through a financial power of attorney, your loved ones will need to go to court. A judge will then appoint someone to handle your financial and property matters for you.

The judge will decide who takes on this role based on state laws, usually giving priority to a spouse or blood relative. However, the person chosen may not be the one you would have picked. This process can take a lot of time during an already stressful period, can be costly, and may reveal private details about your condition and family situation to the public.

Agent under a medical power of attorney

Your agent under your medical power of attorney is usually allowed to make decisions or share your medical wishes if you’re unable to do so. Since this person only steps in when you can’t, you might not feel an urgent need to update your medical power of attorney if your chosen agent has passed away.

However, if you have an accident, become incapacitated, or are otherwise unable to communicate your medical wishes and you do not have an agent who can act for you, your loved ones must go to court to have a guardian appointed before anyone can speak on your behalf.

The judge will follow your state’s laws and guidelines to appoint someone to make decisions for you, but this person may not be who you would have chosen. Also, the person selected might not know your preferences for the medical care you want.

Guardian for your minor child.

You have likely invested a lot of time and consideration in deciding who you would like to serve as the guardian of your minor children if you and the children’s other parent are unable to care for them. If the loved one you have selected has passed away, you must update this selection.

While your circumstances may vary, if your chosen guardian is unable to serve for any reason, and you have no alternate guardian nominated, the probate court will determine who will raise your child. As with other roles, the selected person may not be the one you would have chosen, and absent input from you, the judge may have limited information when making this critical decision.

We Are Here to Help

At Jordan & White, we’re dedicated to protecting your interests today while building a solid plan for your future. Our comprehensive, custom estate planning services are designed to meet your unique needs at every stage of life.

Whether you’re buying or selling real estate, we work closely with buyers, sellers, and lenders to prevent potential issues and ensure smooth, successful closings. Additionally, we guide families through probate, estate, and trust administration with both efficiency and compassion.

If you have any questions or would like to explore your legal options,  contact us at 978-744-2811 —we’re here to help you take the next step toward securing your future.