Planning for Life

The Rules in Massachusetts if You Don't Have a Will

Posted by Harry S. Margolis on January 3, 2012

By Harry S. Margolis

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When Massachusetts adopted its own version of the Uniform Probate Code (MUPC) in 2012, it changed what happens to your estate if you die without a will, technically called dying "intestate."  The results depend on whether you're married, have children or have living parents.  The rules are very specific.  Here are a few examples:

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Topics: Massachusetts Uniform Probate Code, Estate Planning, will in massachusetts

Why Medicaid Planning Isn't for Everybody - Massachusetts

Posted by Harry S. Margolis on January 2, 2012

By Harry S. Margolis

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My new client was recently widowed.  She is healthy, living on her own in the house she shared with her husband for many decades.  She is comfortable financially with significant savings in addition to the home, but by no means wealthy.  Her four children all have families of their own and they and their spouses have good jobs, so they don't need her financial support.

I met with her and her son. They asked whether the mom should put her home, and perhaps some of her savings, into an irrevocable trust in order to protect them in the event she needs long-term care.  She also expressed her steadfast wish to stay at home.

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Topics: asset protection, long-term care planning, Estate Planning, MassHealth, MassHealth planning

The Descendants Illustrates an Estate Planning Riddle - The Rule Against Perpetuities

Posted by Harry S. Margolis on December 11, 2011

By Harry S. Margolis

The George Clooney character in The Descendants is under pressure to sell extremely valuable Hawaiian land held in trust for his family for over a hundred years because if he doesn't act soon the trust will terminate with the property being distributed outright to dozens of family members.  They might never agree among themselves on what to do with the property without expensive and extensive litigation.3 george clooney 0509 lg 19068806

The reason the trust will end?  The "rule against perpetuities," the bugaboo of many a first-year law student. 

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Topics: trusts, rule against perpetuities, Estate Planning

Is Guardianship Necessary When a Child with Special Needs Turns 18?

Posted by Harry S. Margolis on October 21, 2011

By Jeffrey A. Bloom

The law deems us to be of full legal capacity when we reach age 18, unless we’re incapacitated for some reason other than insufficient age. And we’re presumed to be competent until a court decides otherwise. So what should parents do when they have a special needs child who is about to turn 18? As with most things, there is no hard and fast rule or simple answer.

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Topics: guardianship, special needs planning, Estate Planning, Legal profession

What Does "Maintenance, Comfort and Support" in Trust Really Mean?

Posted by Harry S. Margolis on October 18, 2011

By Harry S. Margolis

Trusts commonly provide that distributions may be made for the "reasonable maintenance, comfort and support" of the beneficiary. These are often part of the so-called "HEMS" standard -- "health, education, maintenance and support" -- that the Internal Revenue Service has deemed to create a safe harbor. If distributions are limited to this standard, they will not be deemed to belong to the trustee when she dies. But what do these words really mean? 

The case of  Harootian v. Douvadjian (80 Mass. App. Ct. 565, October 4, 2011) helps answer this question, and the answer is that these words give very wide discretion to the trustee. Andrew H. Ansbigian left a trust for the benefit of his wife, Beatrice, and also named her as trustee.  The trust provided that she could make distributions for her own "support in reasonable comfort and maintenance."

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Topics: Estate Planning, trusts

What to Do About Dueling Powers of Attorney

Posted by Harry S. Margolis on September 22, 2011

By Harry S. Margolis

My client acts as agent for her father under a longstanding durable power of attorney.  Unfortunately, tensions are developing between her and her brother who has been consulting with other attorneys about asking their father to execute a new durable power of attorney appointing him.iStock-637904234.jpg

My client wants to know how we can stop this from happening and why the doctor's declaration that their father is no longer competent isn't sufficient.

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Topics: guardianship, family dispute, Estate Planning

Should Your Durable Power of Attorney be "Springing"

Posted by Harry S. Margolis on September 20, 2011

By Harry S. Margolis

We advise all of our clients to execute durable powers of attorneyiStock-92399855.jpg appointing a trusted family member or friend to handle financial and legal matters for them in the event of a disability.  This ensures continuity in paying bills and handling personal business, can help prevent loss of funds and avoids the need to go to court for the appointment of a guardian or conservator.

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Topics: incapacity, Estate Planning

Is a General Assignment Sufficient to Fund a Revocable Trust?

Posted by Harry S. Margolis on August 4, 2011

By Harry S. Margolis

If you sign a document saying that all of your assets will go into your revocable trust, will this work to fund the trust and avoid probate, or do you need to retitle each asset and account individually? In the California case of Kucker v. Kucker, the California Appeals Court answered in the affirmative, saying (with some caveats) that the general assignment worked.

Mona Berkowitz, age 84, executed a revocable trust and a general assignment of all of her personal property to the trust.  Personal property includes bank accounts, investment accounts, cash, and personal belongings, such as furniture, artwork, clothing, and jewelry.

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Topics: Estate Planning

Are Lawyers Off the Hook for Estate Planning Mistakes?

Posted by Harry S. Margolis on July 12, 2011

By Harry S. Margolis

In the case of Sherman, et al. v Shub, et al., the judge dismissed the consumer protection claim against lawyers and tax advisors who drafted two allegedly defective life insurance trusts  because the damages were too speculative to determine.While it's a longstanding legal doctrine that the difficulty of establishing the amount to damages does not preclude recovery,

Judge Peter M. Lauriat in his decision  argues that the issue here is not the extent of damages but whether damages will exist at all, since whether the plaintiffs will have to pay any estate

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Topics: trusts, Estate Planning

Will Debt Forgiveness in a Will Work?

Posted by Harry S. Margolis on July 10, 2011

By Harry S. Margolis

A father lends money to his son and daughter-in-law secured by a mortgage, and forgives the debt in his will. When the father dies the son's promissory note is the estate's sole asset and without payment on it the estate cannot afford to pay creditors or the expenses of administration.

These are the basic facts of a Florida case, Lauritsen v. Wallace.  The probate court holds that the debt forgiveness is effective on the moment of death, but on appeal the Appeals Court reverses finding that the son has to pay on the note enough to cover the estate's debts and the costs of administration. 

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Topics: Estate Planning, Probate Estate Administration

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