Planning for Life

Harry S. Margolis

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Case Shows Difficulty of Overturning Estate Plan for Lack of Capacity

Posted by Harry S. Margolis on January 19, 2021

By Harry S. Margolis


A case recently decided by the Massachusetts Appeals Court, Joseph A. Haddad vs. Marcel A. Haddad  (Mass. App. Ct. No. 19-P-1378, January 12, 2021), demonstrates the burden on parties challenging duly executed estate plans.

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Topics: incapacity, Estate Planning

What is Elder Law?

Posted by Harry S. Margolis on January 18, 2021

By Harry S. Margolis


What is "elder law?" Some years ago, for the introduction to the elder law book for the Massachusetts Practice series published by Thompson Reuters, written by my partner, Jeffrey A. Bloom, I wrote the following definition:


Most simply put, elder law is a legal specialty focusing on the legal needs of seniors. But that begs the question a bit. What are those legal needs? How do they differ from the legal needs of non-seniors? How do we define “seniors”?

Unfortunately, many of the legal issues seniors face arise from their loss of mental capacity or the onset of physical incapacity. The increased likelihood that we will need care as we age, especially after age 85, the failure of the American health care system to provide for such care under standard insurance, the high cost of such long-term care, and the complicated and piecemeal public “system” of subsidizing long-term care combine to create the need for legal expertise to guide seniors either experiencing or anticipating long-term care needs. This is the core service of elder law.

However, elder law also includes more standard estate planning, simply with an eye towards the future need for long-term care, and more urgency given the higher age and likely sooner death of the client. Elder law also includes guardianship and conservatorship proceedings over seniors who may have lost or be losing their mental capacity (or defense against such proceedings), protection of seniors from those who may take advantage of them, the resolution of disputes with nursing homes and assisted living facilities over care and related issues, and the resolution of disputes among family members about the care of their parents and the financial cost of such care.

The term “seniors” often refers to anyone over age 65. While individuals age at different rates, as a group there’s a huge difference between those between 65 and 85 and those over 85. The vast majority of those in the first age group are healthy and enjoying their so-called “golden years”, while over half of those in the latter group need some assistance getting through the day. In fact, often it is those in the first group who are caring for their parents in the second group. Elder law attorneys help those in the first group prepare for their post-golden years, and help those in the second group deal with the legal and health care issues they come up against.


What's your definition? I'd be curious to hear how you would define "elder law" and how you that definition may have changed over the years.

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Life Can Get Complicated, But Don't Fret the Small Stuff

Posted by Harry S. Margolis on January 14, 2021

By Harry S. Margolis


Congratulations! You've retired. You're free to spend your time as you like. Life should be simple.

But, of course, many parts of it are more complicated. You no longer have health insurance provided by your employer. Instead, you have Medicare and must decide on what Medigap policy and Medicare drug plan to sign up for. And should you save money by joining a Medicare HMO?

And then we come to tax planning. One client recently asked advice on how to minimize taxes given than he has income from the following sources:

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Topics: income taxes, capital gains taxes

Apple Forces Our Client to Court: How to Avoid this Happening to Your Heirs

Posted by Harry S. Margolis on January 8, 2021

By Harry S. Margolis


We have a client who is trying to access his deceased wife's account Apple iCloud account and has run up against Apple's requirement that he obtain a specific court order giving him access. To obtain such an order, our client must first probate his wife's estate, which otherwise would not be necessary.

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Topics: probate, personal representative, on-line accounts

Why Postponing Retirement Can Enhance Your Life

Posted by Harry S. Margolis on January 8, 2021

By Harry S. Margolis

There are many benefits to postponing retirement, including more retirement income and savings, and maintaining purpose and human contact in your life. It can also reduce the need to save, and thus the need to earn as much money. This can limit financial stress and open up opportunities for more meaningful work or to work less and spend more time doing whatever you choose, whether that's recreation, travel, or time with grandchildren.

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Topics: baby boomers, Retirement Planning

SJC Imposes Time Limit on MassHealth Estate Recovery

Posted by Harry S. Margolis on January 5, 2021

By Harry S. Margolis


In an important case, the Supreme Judicial Court rules that MassHealth may not seek estate recovery against the estate of a beneficiary more than three years after her death. In the Matter of the Estate of Jacqueline Ann Kendall (SJC-12881, December 28, 2020) involves a claim by MassHealth for reimbursement of $104,738.23 it had paid for the care of Jacqueline Ann Kendall before she died on August 7, 2014.

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Topics: MassHealth, MassHealth lien, estate recovery

What Can Non-U.S. Citizen Spouse Do to Avoid MA Estate Tax?

Posted by Harry S. Margolis on December 29, 2020

By Harry S. Margolis


If you or your spouse (or both) are not U.S. citizens and you live in Massachusetts with a total combined estate of more than $1 million, your estate tax planning could get complicated. This is in large part because non-U.S. citizens are not eligible for the marital deduction which permits unlimited tax free gifts between spouses whether during life or at death.

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Topics: Massachusetts, estate taxes

What Should the Estate Tax Threshold Be?

Posted by Harry S. Margolis on December 24, 2020

By Harry S. Margolis


For those dying in 2021, the threshold for federal estate taxes is $11.7 million, $23.4 million for a married couple. Smaller estates, which means virtually all estates, pay nothing. Larger estates pay 40% of everything above the threshold. 

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Topics: estate taxes

Court Allows Claim Against Goulston & Storrs to Proceed to Trial

Posted by Harry S. Margolis on December 22, 2020

By Harry S. Margolis


The Suffolk Superior Court in Ginsberg v. Casey, et al. (C.A. No. 1984CV01670-BLS1, November 10, 2020) dismisses some claims and refuses to dismiss others brought by Faye Ginsburg against Goulston & Storrs, P.C., and Attorneys J. Robert Casey and Andrew D. Rothstein for assisting her brother, Bruce Ginsberg, in raiding family trusts for his benefit and convincing their mother to change her estate plan to Faye's detriment.

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Topics: probate, will, undue influence, malpractice

Can You Put a Retirement Plan in a Special Needs Trust?

Posted by Harry S. Margolis on December 19, 2020

By Harry S. Margolis

It's not unusual for parents of children with special needs, or individuals who have become disabled as adults, to have retirement plans as a significant portion of their assets. In such cases, the question arises as to whether they can put a retirement plan into a special needs trust. The answer, as with many legal questions, is "it depends." Also, the answer has changed significantly since passage of the SECURE Act at the end of 2019.

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Topics: special needs planning, Retirement Planning, Special Needs Trust

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