Planning for Life

SJC Rules Surviving Spouse Gets Life Estate in Real Estate

Posted by Harry S. Margolis on January 15, 2019

By Harry S. Margolis

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There is just one exception to the American rule that you get to choose who gets your property after you die. As long as you're competent, you can give it to anyone, the postman, your babysitter from when you were a child, or the person who picked you up hitchhiking in the rain.

The one exception is protections for your surviving spouse. In Massachusetts, this is found at M.G.L. Ch. 191, Sec. 15. This is an odd or anachronistic law in that it creates a big distinction in the rights of the surviving spouse depending on whether the decedent's estate is worth more or less than $75,000.

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Topics: will in massachusetts, spousal share

Consumer Disclosures Now Mandated for Assisted Living Residents

Posted by Rebecca J Benson on January 14, 2019

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Effective January 1, 2019, the Executive Office of Elder Affairs (EOEA) requires all Massachusetts assisted living providers to provide a standard consumer disclosure statement with each new residency contract.  According to a Memorandum from EOEA, the mandated disclosure is intended to explain issues that are often overlooked or misunderstood when people choose to move into assisted living, particularly issues of fees and services that are included (or not included) in the agreement.  Among other things, the disclosure states that assisted living residences are not the same as nursing homes, cannot provide skilled care and are not required to have nurses on-site. 

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Topics: assisted living regulations, assisted living

Court Faults "Arbitrary and Capricious" MassHealth Hearing Decision

Posted by Harry S. Margolis on December 26, 2018

By Harry S. Margolis

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In the case of Pauline Coko vs. Daniel Tsai, Director of the Office of Medicaid (Essex Sup. Ct. CA No. 2018-00071-A, December 13, 2018), Judge Timothy Q. Feeley faults the arbitrary and capricious conduct of a MassHealth hearing officer in imposing a 193-day transfer penalty for four transfers by Pauline Coko totaling $68,632 in value.

Disqualifying Transfers

The transfers in question included a deed of Mrs. Coko's life interest in her home to her daughter, two disbursements from Mrs. Coko's bank account, and the gift of her 2003 Mitsubishi valued at $1,365 to a granddaughter.

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Topics: MassHealth, disqualifying transfer

6 Red Flags of Potential Undue Influence, and How to Respond

Posted by Harry S. Margolis on December 11, 2018

By Harry S. Margolis

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Most estate planning matters present no issues of potential undue influence or incapacity. The client or clients (if a couple) meet with the attorney. They discuss the clients' goals and the best ways to reach them, develop a plan, and then implement it.

But some situations are out of the ordinary and require the lawyer to take extra steps to ensure that the client is not subject to undue influence.

Definition of Undue Influence

Before we list those circumstances, let's review the elements that must be proved to establish the existence of undue influence to invalidate an estate plan. There are four such elements which together prove undue influence:

  1. The estate plan involves an unnatural disposition of the estate (see 3 below),
  2. By a person who is susceptible to undue influence (see 1 below),
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Topics: incapacity, undue influence

What's a Trustee to Do Without Guidance? Provide a Letter of Wishes

Posted by Harry S. Margolis on December 4, 2018

By Harry S. Margolis

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So you've been appointed trustee. Now what do you do?

Of course, there are your administrative functions in terms of investments, bookkeeping and paying taxes. But how do you decide how much to give each of the beneficiaries? When? For what purposes?

Some trusts are quite simple -- you're directed to distribute the income, invest the principal and distribute what's left when the life beneficiaries pass away.

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Topics: trustee, trusts

Beware the Use of Preprinted Probate Forms

Posted by Harry S. Margolis on November 27, 2018

By Harry S. Margolis

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The Massachusetts Probate Courts have created useful forms for use in its proceedings, but sometimes the forms don't fit the exactly the facts or situation petitioners want to present to the court. In the case of Leighton v. Hallstrom (Mass. App. Ct. No. 17-P-1335, Nov. 7, 2018), Robert H. Olson of Bridgewater died in 2015 without a will. His first cousin, Dorothy A. Leighton, filed a petition for probate listing herself and two other cousins as next of kin.

Bengt Hallstrom, of Uddevalla Sweden, filed a notice of appearance on which he checked the box saying that he was not objecting to the proceeding. His counsel also sent a letter to Leighton's counsel containing a genealogical chart showing that he was a cousin of Olson on his mother's side. The letter stated "I have not listed it as an objection since it is my understanding by doing so will cause a contest in this matter." In other words, Hallstrom was not objecting to the proceeding, just to the listing of next of kin. A guardian ad litem who was appointed by the court issued a report stating, "The issue of determining heirs can be addressed during the course of the handling of the estate."

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Topics: probate, Probate Estate Administration

5 Management Lessons from Bill Belichick

Posted by Harry S. Margolis on November 20, 2018

By Harry S. Margolis

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In a talk I recently attended at a dinner sponsored by One Charles Private Wealth, Ian O'Connor, author the new biography Belichick: The Making of the Greatest Football Coach of All Time, sought to explain Coach Bill Belichick's great success with the New England Patriots. I gleaned the following five management lessons from what O'Connor said:
  1. Be yourself.  Before Belichick came to the Patriots, he was the unsuccessful coach of the Cleveland Browns. O'Connor says that in Cleveland, Belichick was trying to emulate his mentor, Bill Parcels. That didn't work. By the time he came to New England he was ready to be he own man. O'Connor tells the story of Belichick's assistants who have not been so successful when they've gone on to be head coaches on their own, arguing that they have tried to coach like Belichick rather than finding their own path to success.
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Topics: law firm management

Don't Ask a Neuropsychologist About Legal Capacity

Posted by Harry S. Margolis on November 13, 2018

By Harry S. Margolis

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In it's hopeful article on "Leading an Active Life With a Diagnosis of Dementia," The New York Times correctly describes some of the legal documents we all should have in case we lose cognitive function, including financial powers of attorney and health care directives. But in raising the question of the individual's legal capacity to sign the documents, it suggests that  a clinical evaluation is necessary "to determine whether the client still has the decision-making skills" to execute legal documents. The article quotes a neuropsychologist as saying that "[e]ven mildly impaired persons usually need to be carefully evaluated  before signing legal documents."

I disagree. We almost never take this step.

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Topics: incapacity

Benson and Margolis named Super Lawyers, Again

Posted by Beth Cohen King on November 7, 2018

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We are pleased that Harry S. Margolis and Rebecca J. Benson have been named New England 2018 Super Lawyers for Elder Law, among just 26 throughout New England and 15 in Massachusetts. And, yes, they did wear their capes for Halloween.

See Harry S. Margolis's profile on Super Lawyers.

See Rebecca J. Benson's profile on Super Lawyers.

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Topics: super lawyers, elder law

UBS as IRA Custodian has Fiduciary Duty to Beneficiary

Posted by Alison Blum on November 7, 2018

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In UBS Financial Services, Inc. v. Donna M. Aliberti (Mass. App. No. 17-P-1169, October 4, 2018), the Massachusetts Appeals Court concluded that a custodian holding an individual retirement account, or IRA, has contractual and fiduciary duties to the beneficiaries, reversing the dismissal of case brought against the company for failure to distribute IRA proceeds.

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Topics: trustee, Estate Planning

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