Planning for Life

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

How Will We House an Aging Population?

Posted by Harry S. Margolis on November 6, 2018

By Harry S. Margolis

Harvard's Joint Center for Housing Studies has published a report on the challenges of housing our aging population over the next two decades. harvard_jchs_housing_growing_population_cover[1]

The Coming Crisis

Here are some of its findings:

  • The over-65 population will increase from 48 million today to 79 million in 2035.
  • The over-80 population will double from 12 to 24 million.
  • By 2035, one in five Americans will be 65 or over, up from one in seven today.
  • The Joint Center projects that by 2035, 17 million older households will include someone with a mobility disability, 12 million needing with a self-care disability and 27 million with a household activity disability.
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Topics: home care, seniors

Benson and D'Agostino Speak at ALCA - New England Conference

Posted by Beth Cohen King on November 5, 2018

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On October 29th, Rebecca J. Benson and Patricia C. D'Agostino were panel experts in the break out session called Optimizing the Interdisciplinary Team: An Advanced Case Study Workshop  at the ALCA 2018 New England Chapter conference. Led by the Moderator, Jennifer Pilcher, founder and owner of Clear Guidancethe panel included experts in estate planning, care management, home care, psychiatry and special care units in assisted living facilities.  The goal of the session was to learn creative care planning techniques and strategies to maximize how one collaborates with elder care colleagues.

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Topics: home care, Estate Planning, elder care, elder law

Maine to Vote on Universal Home Care Ballot Initiative

Posted by Harry S. Margolis on October 30, 2018

By Harry S. Margolis

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Question 1 on Maine's ballot next week, An Act to Establish Universal Home Care for Seniors and Persons with Disabilities, would enact universal free home care for seniors and others with disabilities funded by a 3.8 percent tax on income above $128,400 (in 2018) the threshold over which workers and employers no longer have to pay into the Social Security system. In other words, incomes below that level would be exempt from the tax.

Estimates of how much the tax would raise range from just under $200 million to just over $300 million a year. Only 3.4 percent of Maine taxpayers would be subject to the new tax.

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Topics: home care

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