Health Insurance in Massachusetts after Divorce

Tuesday, May 14th, 2013

You will be divorced in 120 days after you go to court for your hearing if it was an uncontested case. As to health insurance, you will be covered as a spouse until that period has ended (your divorce is final) and the insurance company or employer is notified of the divorce. Whether you owe your spouse any payment for health insurance prior to that time would be determined by language in the separation agreement. If it is silent, most people would interpret that as meaning the spouse currently having the payment taken from the paycheck will continue to do so until the divorce is final without contribution. The two of you may vary that and start earlier. Confirm that your employer follows MA statutes and will cover you post divorce. Many employers are not subject to the statute due to the fact they are “self insured”. Look to the employer’s summary plan description to determine whether the company is self insured.

Visitation and child support when our daughter moves away for college

Friday, October 26th, 2012

Additional Information:

I have been divorced for almost 10 years. My 18 year-old daughter just moved out of state for college and we’re unsure as to how to proceed with visitation with her dad.  I assume visitation with her dad continues through the college years or does it stop now that she’s 18?  When she lived with me in our Boston area home, these logistics were easy. Also, can her child support be increased now that there are more educational expenses? Any advice is appreciated.  Thanks.

ANSWER: by Allan Baron

Hopefully, a well-crafted separation “divorce” agreement has handled these issues and you should first look to the agreement for the answer. If you remain uncertain, I recommend you acquire the assistance of a Family Law/Divorce Law Attorney.  Things obviously change when a child enrolls in a post-secondary program and lives away from home. In that situation, there needs to be a coordination of child support, visitation and college related expenses.  Most agreements have taken into account how college expenses will be handled or at a minimum sets forth a process or method to follow as “college time” approaches. The agreement should address whether each parent will obligate themselves to a percentage of college expenses and how the expenses are defined, whether each parent agrees to pay a certain amount of money per year/per child, who will handle the shortfall, who will cosign for loans, if necessary?   (more…)

Am supposed to keep my ex and kids on health insurance but now can’t afford to.

Friday, October 19th, 2012

Additional Information:

As part of our divorce settlement, I’m supposed to keep my ex-wife and kids on my health insurance.  I just got laid off of work and now to keep us all covered on health insurance, I have to pay COBRA which is significantly more than what my contributions were before. I cannot afford it. We live in a suburb north of Boston and Mass law requires everyone to have health insurance, right? What can I do?

ANSWER: by Allan Baron

First, I recommend you look to your separation “divorce” agreement for your answer.  If it is a thorough and complete agreement, it should cover the situation in which the original party agreeing to keep the family on his/her policy is no longer able to do so.  Many agreements will shift the burden to the other party to obtain coverage if it is available through that person’s employment; the advantage being that many employer provided policies subsidize the cost of the policy to some degree for the employee.  If that is available then there may be an agreement as to how to pay for the coverage as between the parties.  If neither party is able to get coverage through their employer then usually the parties agree to coordinate and split the cost of coverage at least for the children.  (more…)

Can my husband and I be added to the title of my mom’s home?

Friday, October 12th, 2012

Additional Information:

My mom is going to move out of her home in North Andover into an assisted care facility.  My husband and I would like to buy her house but our credit is not good. Is there any way we can be added to the title without checking our credit?  Would a living trust or will work?

ANSWER: by Allan Baron

Whether and how to transfer or sell the home in which an elder resides may be a complicated matter. There are several instances that may arise resulting in cross purposes being at play. Before a strategy can be given to the elder and/or the adult children, it is necessary to “diagnose” the situation.  An Elder Attorney, preferably one who also practices in the area of Estate Planning and/or Tax Advisor will need to know the health status of the elder (physically and cognitively), the financial situation and the family dynamics of which the elder is a part of.  (more…)

Getting divorced, will husband’s lavish expenditures be considered?

Saturday, September 15th, 2012

Additional Information:

My husband and I are getting divorced.  He works and I am a stay at home mom to 3 great kids in Georgetown. He has been spending money on expensive luxury items, including a new car.  How will these expenditures effect the division of assets?

ANSWER: by Allan Baron

The court considers 17 or so factors in regard to property assignment and division, division of assets as you refer to in your question. One of these 17 factors is conduct of the parties.

The court views this information as important and looks to see whether a party has spent down or dissipated marital assets without agreement by the other spouse. Conduct such as gambling and other addictions often cause a party to go through marital assets at an alarming rate.  Excessive spending without justification, would be relevant and a court may assign or divide assets in a manner to compensate you for this conduct. (more…)

In Massachusetts what are the different aspects of “custody”?

Thursday, August 30th, 2012

Additional Information:

My husband and I have decided to divorce and are on good terms with one another.  We’ve been figuring out finances and think that the kids and I will stay in our Greater Boston area home and see him on a scheduled basis.  Can you please explain the different aspects of “custody”?

ANSWER: by Allan Baron

In Massachusetts, custody includes two parts, those being legal and physical.  Legal custody is the right to make major decisions regarding the child including medical, educational and religious. Legal custody can be sole or shared.  If you agree, as most parents do, that you are both good parents, then shared legal custody is appropriate.  Physical custody is where the children will reside and who (which parent) will have the ultimate say in respect to their day to day life and schedule.  In relation to physical custody, you may be considering a traditional parenting schedule where the children would reside with one parent while the other parent interacts with the children on a limited basis such as: once during the week and every other weekend.  This is considered a sole or primary physical custody situation.

(more…)

We’re going on a trip overseas, can we quickly establish a will or revocable trust?

Tuesday, August 28th, 2012

Additional Information:

My wife and I are leaving in the next few weeks on a 3 month trip abroad.  Currently we have a house in Haverhill, various financial accounts and my life insurance.  We do not have a will, only beneficiaries for our accounts.   Is there something that we can establish quickly before we leave on our trip, like a revocable trust?  Also, can you explain the differences and pros/cons of establishing a revocable trust vs. a will?

ANSWER: by Allan Baron

There is nothing like the excitement of taking an international trip from the Andover, MA area to motivate you to do what you know you should have already done. The basic estate planning package in Massachusetts for those not seeking or needing estate tax planning or Medicaid (Masshealth) planning includes a Last Will and Testament, a Power of Attorney, a Health Care Proxy, a Living Will and a Homestead declaration.

Trusts such as Revocable Trusts a/k/a Living Trusts and Irrevocable Trusts are recommended based on the dollar value of your estate when a strategy to minimize estate tax is appropriate.  Often, older individuals who are not intending to transfer assets, relocate, buy or sell major items opt for a Trust instead of a Last Will so that their loved ones can avoid the long and costly probate process. (more…)

My husband and I are in our second marriage, figuring out wills and estate planning.

Tuesday, August 21st, 2012

Additional Information:

We don’t have a lot of property, a house in Tewksbury that we own together and our personal belongings.  He has a will that leaves his belongings to his daughter whom I don’t like and don’t get along with.  If he dies before I do, how do I know his belongings will be distributed equitably?

ANSWER: by Allan Baron

A second marriage brings with it several legal issues and matters you must consider. You have identified a few:  Should I have my current will reviewed?  What assets/liabilities pass within and outside of my will?  How do I coordinate leaving assets to the children of my first marriage and my husband of a second marriage? (more…)

New alimony law in Massachusetts

Tuesday, August 14th, 2012

Additional Information:

What are the major changes to the new alimony law in Massachusetts?  How does this affect divorce agreements finalized before the new law went into effect?

ANSWER: by Allan Baron

The new Massachusetts alimony law generally puts some limits on amounts (how much money is to be transferred) and duration of alimony (for how long will the money transfers be made) especially where child support is also being paid.

The old concepts of needs, ability to pay and length of marriage are the still considered but  there now are some guidelines/limits that have been set up to avoid some of the “never ending”  or permanent awards of the past. (more…)

We’ve been divorced for 10 years, can she now petition for joint custody?

Tuesday, August 7th, 2012

Additional Information:

My ex wife and I got divorced ten years ago and I got sole custody of our now 15 year-old son. My question is can my wife petition for modification for joint custody now?  She hasn’t seen him much over all these years.   We live in Methuen and she lives over 3 hours away, so even if she got weekend visitation, that would destroy my son’s weekends as he is involved in sports and has lots of friends here.   How should I proceed?

ATTORNEY ANSWER:

To answer your question:  Yes, your former wife could petition for joint custody now.  Custody of a child is a matter that is subject to the continuing jurisdiction of the Probate and Family Court. As your son resides in Methuen, MA, the case would be heard by the Essex County Probate and Family Court.

If your former wife chooses to pursue this, the process would be that she would need to start a complaint for modification of the existing order, the existing order in your case is that you have sole custody.   She would need to show the court that a change of circumstance has taken place and that it is in now in the best interest of the child, your son, to now be in a shared custody situation. (more…)

What does child support pay for under Massachusetts law?

Sunday, July 22nd, 2012

Additional Information: I’ve been divorced for five years now and have very little contact with my former wife or our child. I’m sorry about that but I have a new life now. I’ve never missed a single child support payment but I’m constantly being asked by my ex to send money to pay for half of some expense she claims is required for the child like medical bills, braces, and other things. I was under the understanding that my child support was supposed to be used for that kind of thing and that I wouldn’t have to pay for anything else. That’s why I agreed to pay the amount of child support I agreed to. So can I tell by ex it’s time for me to cut off the funds? What does Massachusetts law say about the issue of what my child support is supposed to be used for?

Attorney Answer:

Your question is common and better asked before you enter into a legal agreement. The child support guidelines generally are thought to cover food, clothing and shelter. They are based on a common co-parenting schedule where the non-custodial parent sees the children once during the week and every other weekend. The child support transfer payment does not cover after school activities, clubs, sports, and extra schooling help. In addition, the child support payment does not cover uninsured medicals or post high school educational expenses. In setting the support payment, if a parent spends more than the normal parenting time (as mentioned above, the payment may be somewhat less; whereas, if the parent spends less parenting time, the payment may be higher. The after school expenses are usually paid 50/50 or according to parents income disparity. As to the uninsured medical expenses, the first $250 per year is paid for by the custodial parent, expenses in excess of the $250, are then paid 50/50 by each parent or according to the disparity in income of the parents.

If you entered into an agreement all this should be set out, if not you should seek a modification to clarify these unaddressed issues. If you have yet to enter into an agreement, your mediator or attorney should cover all these important issues for you.

Assent to Account

Sunday, July 15th, 2012

Additional Information: I received an Assent to Account (Substituted First and Final) and Receipt and Release for the Final Distribution. It looks like it is assenting to the probate of the accounts and indemnifying the co-executors. I’m not sure I want to sign this since I don’t know what is in the probate/will? What exactly is this and am I losing any rights if I do sign?

Attorney Answer:

If you received this request to assent, you normally would have received a notice to parties at the beginning of the probate proceeding. It would be a fair assumption of your situation that a probate is about to conclude, final distributions are being made and the executor has filed the account (how the money and assets have been handled). Since you received the request and you are not aware of its purpose, I would suggest you first call the executor to get information and then if you have unanswered questions or not satisfied, call an attorney for a consultation. If you sign and return, yes you are agreeing to the content and telling the court you are satisfied with the final account and the distributions.

Child support for separated couple

Monday, July 9th, 2012

Additional Information: I have been separated from my ex for over a year with a pre trial conference coming up. I have been making child support payments to her based on the mass calculation sheet, but she is trying to nickle and dime me on every issue and I feel I should be able to claim them as exemptions as well. Do I need to pay her if I have the kids multiple nights a week ?

Attorney Answer:

It seems you are asking 2 questions. What is the appropriate amount of child support and what does it cover/not cover? What are the rules regarding tax exemptions? There is information on line from the court about the child support guidelines, how they are calculated and what the payments generally cover. It would be important for you and your wife to decide prior to the judgment what expenses are anticipated for the children and how all these will be paid with caps where appropriate. Be as specific as possible and include college expenses or at least a formula to figure out at the appropriate time how that major expense will be paid.

As to the second question, there are IRS rules as to who may take exemptions but either party may release their exemptions to the other parent. You may want to have a financial person run the numbers both ways to see the benefit to each parent as it related to their tax return.

Emancipation of child and support

Monday, July 2nd, 2012

Additional Information: My husband”s son is 19, not living with his mother, he is living with his boyfriend in a house they rented together (facebook provided this info as well as lots of other info) in another state, working, and not attending college. We have been trying to get the support terminated since Nov 09 but so far haven’t succeeded because they register for school as soon as they get the modification request served, we get advised to stop the modification because of this and then he drops out (we have proof of this through a PI in Iowa where he is living). We have planned it correctly now and are going to file the beginning of September so they won’t have time to do this again before the next semester’s registration the middle of November this year (they did this last fall, spring, and this summer, he never attended more than a few classes and dropped out each semester). Our attorney seems timid thus far and I would like to know given this info what are our chances of getting the support terminated?

Attorney Answer:

It is very risky to stop any payment owed to another in a family situation. The better way is to always get the order from the court first. The court will require very strong evidence that the child is emancipated. This standard is for the protection of the child. Just not being in school is no longer enough. Kids now take semesters or years off from college. A full time job now may be short lived and the child is back at home. I would have the child deposed and find out what it is that the child has planned. If the child is not going to school at least some income should be attributed which may reduce your support if the child is able to work. Good luck.

Modification of child support in MA

Tuesday, June 26th, 2012

Additional Information: I just got served, been divorced since 1999. My ex is looking for more support and college expenses. Divorce decree states that support and college expenses are not to exceed 35 percent of my pay. Is this what judge will follow?

Attorney Answer:

Since any matters in the divorce order or agreement relating to the children may be modified by the court, the matter is appropriate to be in the probate court. In order to modify an agreement, one of the parties needs to show a material change in circumstances. This may be financial or otherwise. That is usually a low hurdle to get over. If a material change in circumstances is shown, then the court will look at the financial statements of both parties currently and take a second look at the agreement based on today’s situation of both husband and wife and child. You should seek legal help as this may be a very costly matter to you.

Will Masshealth be able to obtain a lien on our house?

Tuesday, June 19th, 2012

Additional Information: I own a property with my husband and my parents, all are listed on the mortgage and deed. If one of my parents was to enter a nursing home for long term care. Will mass health only be able to attached that person and their spouse for the equity in the house or all the equity on the house for all 4 people on the deed.

Attorney Answer:

How real estate is titled is important for estate transfer purposes, tax purposes and credit purposes and if appropriate Masshealth purposes. When the question of long term care planning arises,(which is what I think you are really asking) it is important to establish a plan for long term care which will of course include the status and titling of the home as part of that plan. You may discover there are cross purposes and goals once you lay out the plan. Asking a question like yours is a great start but if you goal is to plan a parent’s or spouse’s long term care, how to finance it and how to protect assets legally, then I suggest you quickly meet with an experienced elder care attorney to get you started. It is imperative to do this when the party is in good health and/or has the capacity to execute powers of attorney, wills, trusts, health care directives and living wills. If the party does not have that capacity, then you will likely need to get involved in the probate court system which will get more complex and costly.

Competence for new power of attorney

Monday, June 11th, 2012

Additional Information: I’m involved in an argument with my sister regarding our mother, who has early stage dementia. I have her in an assisted living facility that, I believe, provides the proper level of care. My sister has been going behind my back and talking to mother about moving to a different, cheaper place that does not offer assisted living services. I am the current power of attorney for my mother, but my sister says she may try to get my mother to sign a new POA even though my mother is often confused and may not know what she is signing. I think my sister is acting in what, she believes, is my mom’s best interest, but I know she is wrong about this. What can I do? Can she just talk my mom into signing a new power of attorney? Can I stop her?

Attorney Answer:

This is a classic and common problem between well meaning siblings. Before this matter gets out of control both emotionally and financially I advise you both to meet with a mediator experienced in elder law and the mediation process in order to help you both identify the issue, help you identify common interest, help you generate various options that may work for you mother and the two of you. It is also important for you both to have a plan moving forward for your mother’s long term care needs and management of her assets and expenses that include you both. I am sure that your mother would not want her children arguing over her and would want you two to maintain a good relationship moving forward.

High Cost Elder Attorney Fee and Finding Options

Wednesday, June 6th, 2012

Additional Information:  My mother is trying to do a preplan in the event of nursing home care is needed in the future. She is 75 and in excellent health. We went to a local MA Elder law attorney that advertises on the radio a lot so I thought we should give him a try. I also checked out his website and for reviews online. He charges $200 up front for the first meeting if you decide not to take action/go forward at that first meeting but will credit that $200 towards any future work he does in your case.

After filling him in on the details he told us the best way to go was to do; Irrevocable trust,  Power of Attorney, Living will, Health care proxy.

His charge was $4,500 plus any document/recording fees of $300 for a total of $4,800. I was shocked at the cost. He seems knowledgeable and friendly but I thought this would be around $2,000 tops. Is this guy overcharging for the above work Elder preplanning in Massachusetts?

Attorney Answer:

Legal services are a consumer product and subject to supply and demand. As a consumer it is your duty to do your “due diligence” in seeking out opinions and bids of work to be done. As a consumer I would speak to three attorneys, compare the recommended course of action, compare the costs and check on the reputation of the attorney. Research the attorneys on the web, and on professional rating directories like avvo.com. In regard to comparing fees, fees for legal services vary greatly based on complexity, experience of the attorney, time spend, the risk an attorney takes on when an opinion is rendered, the type of services that are rendered, the cost of running a law office, etc. If you do these things the next time you need an attorney, you will be able to make an informed decision going forward.

Automatic Restraining Orders and Flexible Spending Accounts

Tuesday, May 29th, 2012

Additional Information: I was wondering if the 411 automatic restraining order applies to “pre-paid” credit cards for health insurance flexible spending accounts. Would I be in violation of the restraining order if I limited the other party’s use of their card?

Attorney Answer:

I see your question about the 411 restraining order. If you have not had the opportunity to read it, it is found easily on the web. The intent is to keep things status quo as before the filing of the divorce and prevent one party from taking unilateral action against the other that would benefit one over the other and require court intervention to unwind. Among the items you will see are those matters relating to health care coverage. As this post is for educational purposes only it is best that your decision is made by your attorney with whom you have an attorney client relationship and knows all the facts of your situation.

Revoke a POA in Massachusetts

Thursday, May 24th, 2012

Additional Information: If I revoked a Power of Attorney and did not record it at the county registry of deeds as was stated in the document, is the revocation in effect?

Attorney Answer:

A revocation (if properly prepared) is generally valid as to those who are aware of it. Because it has not been recorded, as to documents to be recorded, it would not be valid unless you could prove actual knowledge of the revocation was known to the person signing the document. Once recorded, a revocation is valid to all who record. The original or certified copy of an original revocation will be useful for banking, stocks etc. Of course without knowing all the specifics of any matter, it is only possible to give general information and not specific legal advice.

How to make sure I exclude person from my will or estate in MA

Tuesday, May 22nd, 2012

Additional Information: I’m a healthy 68 year-old woman with only three nieces as living relatives. I have a trust set up and my attorney assures me that it only leaves property to the two nieces who have been kind to me all their lives and who have been a great help to me in my old age. The other niece is a not a good person and she is married to an attorney, so I worry she will make trouble after I am gone and try to sue my estate for some of the money. Any thoughts?

Attorney Answer:

You state that your intent is to leave your assets to two of three living relatives. You may know assets may be titled in many ways, for example in sole name, in joint name, in trust, by contract or as the law requires. As a double check for the work your attorney has done, make sure if you have any assets in your sole name that you have a will that specifically states who you wish your assets to go to and who you specifically do not so there is no question. Make sure you have no joint property in that niece’s name. Make sure any life insurance, retirement benefits, annuities do not have her name on the beneficiary page and you name the other two nieces on them. However, if it is your and your attorney’s intent to put all your assets into the trust, make sure they are all titled properly and have in fact been transferred. After you have done all this, it makes sense to confirm all these matters with your attorney if you still have questions as this is for information purposes only and not legal advice.

Will the prenuptial still hold in MA or will I be entitled to a portion of her estate?

Thursday, May 17th, 2012

Additional Information:

I signed a prenuptial agreement before getting married to my wife. This had been a source of contention during our marriage and we had been seeing a therapist because of it and other issues. We recently came to an agreement to nullify our prenuptial but hadn’t yet met with an attorney before she suddenly became very sick. Now I’m wondering if in MA the prenuptial will still hold or will I be entitled to some portion of her estate?

ATTORNEY ANSWER:

When a party to a divorce wishes to enforce the provisions of a pre-nuptial (pre-marital) agreement, that party must show that the agreement was “fair and reasonable” at the time the agreement was executed and “fair and reasonable” at the time of its enforcement. A further refinement to Massachusetts Law in relation to these types of agreements is that it has been decided where if the agreement is found to be fair and reasonable at the time of execution of the agreement then it will be enforced if it is found to be “conscionable” at the time of its enforcement.

Now in your case, you talk about your wife becoming very sick prior to your mutual ability to have the agreement legally nullified and your question specifically relates to whether the agreement will still hold or whether you would be entitled to some portion of her estate?  That answer depends on many other questions:  including whether the agreement addressed the issue of possible death or strictly addressed divorce, whether a will was prepared by your wife that might “trump” the agreement after the agreement was signed, whether there is jointly held property that may pass outside this agreement?

These are all possible arguments that may be made on your behalf, the strength of which will not be known without the additional facts I mentioned in addition to others.  (more…)

My husband has threatened me and my daughter. Will this be taken into consideration when we divorce?

Thursday, May 10th, 2012

Additional Information:

I am filing for divorce after a 2 year marriage. In a drunken rage, my husband kicked me and my daughter out of our North Reading home, which I owned before we got married. He even threatened to take my 10 yr. old daughter and has made other threats. All of this has been reported to the police. Will all of this be taken into consideration so I can get my home back or will he have any rights to it? If he requests it, can I deny visitation with my daughter?

ATTORNEY ANSWER:

Your question raises several issues about Massachusetts divorce law.

First, what about custody? There are two types of custody: Legal, which relates to the major themes pertaining to the child’s life:  healthcare, religion and morality, and education. There is a presumption of shared legal custody in Massachusetts which may be rebutted if one parent is not fit for parenting due to location, behavior, etc…Physical custody concerns where the children will live and who will supervise the children on a day to day basis. Although there is no presumption as to which parent will be granted physical custody, the current primary caretaker will generally be granted physical custody absent an agreement to the contrary by the parents or for good reason found by the court. A co-parenting plan should be developed by the parents, which is in the best interest of the children.

Here, you may argue that due to your husband’s bad behavior that you should be awarded both sole legal and physical custody. If the court does award your husband visitation with your child, it will be granted, denied or possibly allowed as supervised visitation.  This last type of visitation may be ordered to balance the rights of the father and the safety of the child.

As to the issue of your residence, you may apply for a restraining order from the Middlesex district or probate court for protection for you and your child as a result of the threat of imminent physical harm/danger from your husband and his behavior/actions. The court may require your husband to vacate the home either through this restraining order or by way of a separate motion to vacate issued by the probate court.  (more…)

Can we set up a will or revokable trust quickly before we leave for overseas trip?

Thursday, May 3rd, 2012

Additional Information:

My wife and I are leaving in the next few weeks on a 3 month trip abroad. Currently we have a house in Boxford, various financial accounts and my life insurance. We do not have a will, only beneficiaries for our accounts. Is there something that we can establish quickly before we leave on our trip, like a revocable trust?

ATTORNEY ANSWER:

Most attorneys will accommodate a time sensitive matter provided there is sufficient time to prepare and deliver the appropriate services and documents. A basic estate planning package includes a will and/or revocable trust, a health care proxy, a durable power of attorney, living will and a homestead declaration, as appropriate.

Know that how assets are titled will affect how they are distributed after death. For example, jointly titled property, bank and financial accounts including life insurance, retirement accounts and others with named beneficiaries will all go to those designated and will bypass a will. You may want to check to see if you have contingent beneficiaries assigned where possible to cover a situation that would involve you both dying.

Items in a trust also bypass a will and the probate process. Most people consider using a trust for ease of transfer and to avoid the time and expenses associated with the probate process.   A trust also works best for those who are not going to refinance or transfer ownership in the short term as many lenders don’t lend to trusts. Further, if you choose to set up a trust, you need to make sure you actually transfer your property into the trust.

In your case as you are traveling abroad, you should also check on your health insurance coverage while you are out of network range, if appropriate according to your plan of coverage and if you have young children you should complete a medical authorization for the friend or relative caring for them in your absence.  (more…)

How do we create a will that is fair to both the surviving spouse and children from previous marriage?

Thursday, April 26th, 2012

Additional Information:

My husband and I are both in our second marriage. We don’t have a lot of assets, a house that we own together in Andover, a small amount in savings for retirement and our personal property. He already has a will that leaves his belongings to his daughter. How do we create a will together leaving the surviving spouse what’s rightfully his/hers and also leave what he wants to leave to his daughter?

ATTORNEY ANSWER:

Second marriages raise unique issues. Entering into a second marriage especially for those in the Boomer generation can create much concern for the adult children involved for both parties. It is important to be very clear with your spouse and your “first marriage” family what is and is not being left to them. It is critical to meet with your children, disclose all your assets and how each will be handled. In today’s world, it is best that there are no secrets and unknowns which after your death, may lead to resentment and law suits.

In your case, first make a list of all assets and liabilities of both you and your husband. The list must show how each asset is titled as certain assets may pass to a joint owner or beneficiary regardless of what the will calls for. Next, decide who should receive each asset upon death. Then you will need to decide if these items will pass through a will, a trust or by contract.

Being prepared is essential:  Don’t forget about other critical documents including:  a health care proxy, power of attorney, living will and a homestead declaration which generally round out the basic estate planning package. If tax and elder law planning is in play then these should be also considered at the same time.  (more…)

Our mom passed away and we can’t locate her will.

Thursday, March 8th, 2012

Additional Information:

Our mother passed away several weeks ago and so far we’ve been unable to find her will (my sister and I are the only surviving relatives). I know the name of the local Boxford attorney she said drafted her will but I can’t find him anywhere in the phone book or on the Internet. Any idea how to locate him? I’m hoping he has a copy of the will. What will happen if we can’t locate her will?

ATTORNEY ANSWER:

A few options. Check with the Massachusetts Board of Bar Overseers online or via telephone. An attorney is required to register with them yearly until retired. You should be able to get information that way. Another idea is to contact the Regional Bar Association, for example, Lawrence Bar Association, to see if the attorney is a member. A third idea is to call any small law firm in the Boxford area.

Most attorneys have some idea of where “brother attorneys” are located.  (more…)

Is there a deadline to distribute estate to beneficiaries in MA?

Thursday, March 1st, 2012

Additional Information:

My step father is the executor of my mother’s will. It has been over two years since her passing and he still hasn’t finished the process and distributed the estate to the heirs. Is there a requirement in Massachusetts that requires him to wrap up on some given date? Can he appoint me the executor if he wants to?

ATTORNEY ANSWER:

Although there are timelines within the Massachusetts probate statute for moving an estate forward, many are more advisory than mandatory. If your step father has been appointed as an executor, then there must have been a will presented to the court. The executor is tasked with gathering assets, paying expenses and taxes owed by the estate and then distributing the assets as directed by the last will. At this point in time, two years after the passing of your mother assuming the estate was commenced in a timely manner, there would normally have been filed with the court an inventory of the probate assets. Because estate tax, if any, is due within nine months of death (this time limit is mandatory), I will assume that issue was taken care of. Further, any debts of the estate would normally have been paid unless there is disagreement about the validity of the expense. Normally, well before two years, the estate should be ready to be closed and distributions made to the beneficiary, final tax returns filed, etc. A final account should be filed and approved by the court. (more…)

How do I create a “right of survivorship” for my partner?

Wednesday, February 15th, 2012

Additional Information:

We are an unmarried couple and I am preparing to write a will. I own the residence in Ipswich where we live and I’d like to create a kind of “right of survivorship” for my partner, in order to avoid probate. I would also like to be able to make changes if our circumstances/relationship changes. How do I proceed?

ATTORNEY ANSWER:

Your goal seems to be how to best hold title to your residence so it avoids probate and includes your partner should you still be with that partner at the time of your death.

One option to avoid probate is to retitle the property into a joint tenant with rights of survivorship status. This is done by way of a quitclaim deed. When one person dies, the property will pass to the other by operation of law outside of your estate and bypass your will. However, once conveyed this way, the title cannot generally be changed; the property cannot be encumbered or conveyed without permission of both parties.  Since you wish to be able to reverse or change the conveyance, this option won’t work for you.

Another other option to avoid probate is to convey the property to a revocable trust. In this case, if you are the grantor and trustee you may change the beneficiary while you are alive. So, if you no longer wish to have your partner listed as beneficiary, you may make that change.

It is best to consult an Estate Planning Attorney or Real Estate Attorney before proceeding with this important matter.

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Do I have a case for elder care neglect?

Tuesday, February 14th, 2012

Additional Information:

My 75 year old husband is in well-regarded nursing home in Reading and he needs 2 nurses to assist him in and out of his wheelchair. There was only one nurse present helping him into his wheelchair when he slipped and fell and broke his hip. He’s had several complications since the hip surgery.  Do I have a case for elder neglect?  Who would I sue? The nurse or the facility or both? Does this seem like a strong case?

ATTORNEY ANSWER:

Elder neglect is an important issue for our loved ones in nursing facilities. Both Statute and Case Law are in play in assessing whether a facility and/or their employees have been negligent or possibly even committed a criminal act regarding the treatment and services provided or not provided to a patient. An Elder Attorney is trained to identify and assess whether it may be appropriate to file suit against the facility and/or the actual employees of the facility. Your Elder Attorney may work with a litigation specialist to thoroughly look into the acts of the facility and their employees, your Husband’s treatment plan, and resulting events.

As with any Attorney-Client relationship, all the facts would need to be known by the attorney before he is able to advise you on the viability and strength of a case. I am sure your concern and vigilance is appreciated by your Husband and your family. (more…)

Is a will written in another state valid now that I live in Topsfield MA?

Friday, February 10th, 2012

Additional Information:

I cannot locate my living will or power of attorney. I now live in Topsfield, MA but I had these documents drawn up years ago when I was living in another state. So, now I have two questions. As I now live in the Boston area, if I can find them, will they still be valid? And if I can’t find them, or if they are not valid in MA, will it cost a lot to have an estate planning attorney write new ones?

ATTORNEY ANSWER:

When moving to a new State it is advisable to have your estate documents reviewed and redrawn as necessary.  Each state has its own laws as to format, content and proper execution related to wills, powers of attorney, health care proxies and advance care directives.

Most documents are cost effective enough to have them rewritten. Note that Massachusetts does not legally recognize a living will. The state allows for a transfer of your health decision making to a health care proxy, usually a close relative. A living will is still advisable to have as it gives guidance to your proxy and it is a written desire of your wishes to show your extended family if they question the directions of your proxy. An Estate Planning Attorney or if age appropriate, an Elder Law Attorney (age 50 plus) should be able to serve your legal needs. (more…)