Planning for Life

D'Agostino Wins MassHealth Trust Case

Posted by Harry S. Margolis on June 10, 2019

By Harry S. Margolis

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The MassHealth Board of Appeals recently decided a case involving real estate held by a trust in favor of Patricia D'Agostino's client, a current nursing home resident who had sought coverage beginning in December 2017. The trust had been created by the client's now-deceased husband back in 1995 and held two vacation rental properties.

The Trust in Question

At issue were two provisions in the trust. The first gave the client the right to use and occupy the vacation properties and to receive the net rental income. The second permitted the dissolution of the trust upon agreement of all the beneficiaries and the sale of the trust property with the proceeds being paid to the beneficiaries listed on "the then current schedule of beneficiaries," the couple's children.

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Topics: trusts, MassHealth, vacation house

Timing is Everything: Don’t Wait Too Long to Sue Your Brother

Posted by Lindsey Cavallaro on May 28, 2019

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In general, trustees have a duty of loyalty and care that must be upheld in the management of trust assets and funds. The trustee must only disburse and transfer funds for the benefit of the beneficiaries and for the purposes set out in the terms of the established trust. But what happens when these duties are breached, and the trustee starts transferring funds for their own benefit? For instance, maybe they transfer funds to their own personal bank account and purchase a timeshare in Mexico. This is precisely the alleged situation that divided a family in Whittaker et. al. v. Whittaker (United States District Court, D. Massachusetts, 2019) which they turned into a federal case.

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Topics: family dispute, trusts, trustee

Will the Vacation Home Keep the Family Together or Tear it Apart?

Posted by Harry S. Margolis on May 14, 2019

By Harry S. Margolis

estate-planning-2nd-homes-margolis-and-bloom

Ahh, the vacation house.

The locus of so many family memories. The place where everyone can get away from their busy lives, relax and spend time with other family members.

Or.

The focus of family disputes over maintenance, finances, and use.

How can you assure the former and avoid the latter?

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Topics: vacation house

Should Seniors Downsize or Age in Place?

Posted by Harry S. Margolis on May 7, 2019

By Harry S. Margolis

seniors-downsizing-estate planning-margolis-and-bloom

While everyone's desires and circumstances are different, most people upon retirement or later face the issue of whether to stay in their homes or move, whether to a smaller house or apartment, to a 55 and over community, or to get out of northern winters. Some people want relief from the headaches and expense of maintaining a house, not to mention the lawn in front, while others don't want to leave the home or community where they've lived for decades and raised their families.

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Topics: the accessible home, housing policy ,, home care

7 Ways to Divvy Up Your Stuff

Posted by Harry S. Margolis on April 23, 2019

By Harry S. Margolis

estate planning - soft goods -Margolis & Bloom

When you die, your possessions will go to your heirs. Savings and investments are easy to divide up since they can be turned into cash. While real estate is more difficult, it can be turned into cash by selling it or co-owners can share it. But the most difficult items to divvy up are your personal possessions -- silverware, dishes, artwork, furniture, tools, jewelry -- that are unique rather than fungible. In legal speak these are known as "tangible personal property" and  can become the focus of family feuds, often one or more children claiming that a parent had promised them a particular item.

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Topics: will in massachusetts, will, tangible personal property

What is the Standard for Incapacity to Sign a Legal Document?

Posted by Harry S. Margolis on April 16, 2019

By Harry S. Margolis

Incapacity-undue-influence-upcoming-webinar-Wellesley

I recently wrote about the standards for determining undue influence and questioning the value of consulting with a neuropsychologist to determine capacity to sign a legal document. But what is the standard for incapacity?

The answer is that it's a moving target, often depending on the situation and the document to be signed. Further, in the absence of indications of undue influence the attorney should be inclined to assist a client with questionable capacity to execute estate planning documents rather than refusing to assist the client.

Testamentary Capacity

Here's the legal standard for "testamentary" capacity, the capacity to sign a will:

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Topics: incapacity, undue influence, legal protection

Trustee Beware -- Fee Petition Turned Down

Posted by Harry S. Margolis on April 9, 2019

Photo by Sam Mathews on UnsplashBy Harry S. Margolis

Unlike a conservatorship, most trusts don't require court approval for a trustee to be paid. But that can be different where the trustee is court-appointed. In a California case, Thomas Thorpe v. Audelith Jenivee Reed, Trustee, et al. (Ct. of App, 6th App., CA H037330, Dec. 13, 2012),  the court denied the petition of a court-appointed trustee of a special needs trust for compensation.

Danny, the beneficiary of the trust received compensation for injuries he suffered while attending the Burning Man festival in 1996 when he was 21 years old and a drunken driver drove through his tent.  Danny's mother was named as trustee of the trust.

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Topics: trusts, special needs planning

7 Reasons to Use a Professional Trustee

Posted by Harry S. Margolis on April 9, 2019

By Harry S. Margolis

Professional trustee benefits estate planning

Most people who create trusts for estate planning and asset protection purposes serve as their own trustees during life and then prefer family members to step in if they become incapacitated or to serve for trusts that continue after the grantor's death. Family member trustees keep things private and save money since professional trustees, whether a lawyer, a bank or a trust company, usually charge charge fees of 1.0% to 1.2% of the trust assets per year, often a higher percentage for smaller trusts -- under $1 million -- and a lower percentage for larger ones -- over $2 million.

The use of a professional trustee also means a loss of control for family members and sometimes a loss of continuity when the trust officers for a larger bank or trust company change over time. In addition, if an individual attorney is serving as trustee, there's a risk of a loss of continuity or a gap if the trustee falls ill, passes away, or retires.

Benefits of Professional Trustees

So, with all of these downsides of using a professional trustee, what are the advantages? And how can you mitigate some of the potential drawbacks?

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Topics: trustee

The Facts on Alzheimer's Disease and Other Forms of Dementia

Posted by Harry S. Margolis on April 2, 2019

By Harry S. Margolis

The Alzheimer's Association has released its annual report, Alzheimer's Disease Facts and Figures, which as usual contains some daunting figures, especially as Baby Boomers age and we hear the latest news story of an unsuccessful drug trial. Here are some of the results:

  • 5.8 million Americans have been diagnosed with Alzheimer's disease, which is projected to increase to 14 million by 2050.
  • The annual cost of the illness is $290 billion, which is projected to rise to $1 trillion by 2050 (in current dollars). Medicare and Medicaid currently pay $195 billion of this cost
  • More than 16 million Americans provide unpaid care to family members with Alzheimer's or other forms of dementia providing an estimated 18.5 billion hours of care valued at $234 billion.
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Topics: dementia, MassHealth, Alzheimer's disease

4 Steps to Protect Your Digital Estate

Posted by Harry S. Margolis on March 26, 2019

By Harry S. Margolis

4 steps-to-protecting-digital-estate - margolis-and-bloom

Don't all the conveniences of life sometimes seem just to make life more complicated? This is nowhere more true than with respect to the internet. Whether or not we spend half our lives responding to devices, we all transact a lot of our daily business on line, buying stuff on Amazon, paying our bills through on-line bank programs, stocking up and using airline miles, reallocating our investments, saving photos, watching movies, or planning trips. And that's not even mentioning social media, such as Facebook, Instagram or LinkedIn, or dating sites.

So, what happens to all your connections and information if you become disabled or die? Who has access? Who do you want to have access, to which sites? For instance, you may want your children to be able to access your financial accounts, but not your dating site.

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Topics: Estate Planning, Probate Estate Administration

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