By Harry S. Margolis

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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By Harry S. Margolis

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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By Harry S. Margolis

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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By Harry S. Margolis

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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By Harry S. Margolis

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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By Harry S. Margolis

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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By Harry S. Margolis

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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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.

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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By Harry S. Margolis

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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By Harry S. Margolis

In early spring of this year, George and Maureen Burke, a couple in their 70s, agreed to sell their shoreline home in Nahant to Christopher Whitlock and Mary Flannery for $1.075. Soon afterwards, they had cold feet and their attorney sent Whitlock and Flannery's attorney a letter declaring the sale agreement to be null and void because (a) the Burkes' real estate agent had coerced them to sign, (b) Mrs. Burke "was on several medications at the time of signing, and (c) she didn't 'knowingly, voluntarily, or intelligently sign' the Agreement."

Whitlock and Flannery brought suit to enforce the agreement. In Whitlock and Flannery v. Burke and Burke (Essex Sup. Ct. Misc 18-000298, July 19, 2018) the Court finds that Mrs. Burke did understand the agreement and ordered that the Burkes carry out their obligations to complete the sale.

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