Archive for the 'Elder Law' Category

New Trust Laws in Massachusetts

By LUCY J. BUDMAN, ESQ.

Q.  I have heard that major changes in Massachusetts Trust Law were underway. Is that true? 

A.   Yes, you heard it right. After many decades under the old laws, Massachusetts passed a completely overhauled probate law that went into effect at the beginning of April. Now, in July, the new Massachusetts Uniform Trust Code is here and tackles Trusts also!

On Sunday, July 8th, the Governor signed a new law passing the Massachusetts Uniform Trust Code (MUTC). This law is effective immediately. The new law applies to all Massachusetts Trusts with only limited exceptions, whenever they were created. At Curley Law Firm, we have been following the implementation of the new law to help guide our clients who have Trusts or are thinking about Trusts as to how the new law impacts them.

The new law significantly overhauls how Trusts (revocable, irrevocable and testamentary) work in Massachusetts. If you are the Trustee of a Trust, the new law also creates serious new fiduciary duties. If you are acting as a Trustee you can be held personally liable for getting it wrong. Working with an expert Attorney helps the creator of a Trust protect themselves and their families and helps protect Trustees from accidentally breaching their fiduciary duties.

The law is complex and the full impact of some of the provisions is still not completely clear, but below are a two key changes that may apply to you if you have a trust or are acting as a Trustee:

  1. Trustees now have a duty to keep all Trust beneficiaries informed. That includes providing all beneficiaries with the name and address of the Trustee within 30 days of being appointed and providing annual accountings to current beneficiary who have not specifically waived the right. If you are the Trustee of a Trust, it is critical to make sure you are in compliance with your duties. We work closely with our Trustee clients to make sure they have all the tools they need to fulfill their responsibilities; and
  2. Trust modification has become easier. In many cases, if all the interested parties in an Irrevocable Trust agree, the Trust can be changed without special Probate Court intervention. For families who wish to change existing Irrevocable Trusts, the MUTC is intended to make the process more straightforward.

The new law carries a number of fixes for issues raised under the Massachusetts Uniform Probate Code (MUPC) which went into effect in April.  Two important issues that will apply to many of our clients include:

  1. Clarifying that so called ‘informal’ personal representatives will be able to sell real estate without a license if they are acting under a will with a power of sale. Previously, title insurance companies refused to give clean title without a formally appointed personal representative or a license to sell) ; and
  2. A new fee schedule. Fees for many types of probate court transactions are increasing. For many of our clients, the fees and time delays of the probate court are a reason to plan to avoid probate.

A well drafted Trust can protect you and your family from everything from probate to taxes, creditors and long term care costs, depending on your planning goals, but without planning with an expert, you may find that your Trust has unintended consequences under the new law.

Be sure that your attorney understands the ins and outs of the new Uniform Trust Code and can advise you about how to plan with a Trust for you and your family or how to carry out your duties as a Trustee.

(Lucy J. Budman is a Certified Elder Law Attorney and holds a Masters of Law in Taxation.  She practices law at Curley Law Firm LLP at 1 Common Street in Wakefield.  Do you have an Elder Law or Estate Planning question?  E-mail questions to Info@CurleyLawFirm.com to be considered for future columns)

“The Total Woman” Cable Access show hosts Curley Law Firm’s Lucy J. Budman

Cheryl Webb Scott recently hosted local Certified Elder Law Attorney Lucy J. Budman for two Elder Law segments on the public access TV show “The Total Woman.”

One of only 21 Certified Elder Law Attorney’s in Massachusetts, Lucy focused on how she helps her clients with legal planning to protect their independence as they age.  During the program, Lucy noted that as people live longer, they require specialized estate and elder law planning.  It is imperative for seniors that they have estate planning to ensure that their assets are protected through careful legal planning to maintain them over the long term.  She also raised the importance of people of all ages signing advance directives for health care and financial decision making.

Cheryl Webb Scott said “We have looked for someone in this specialty field of the law for quite some time.  With Baby Boomers making their way into retirement in record numbers, the need for legal information and understanding of the numerous options available to them is a critical issue. Lucy has done a terrific job of helping narrow that gap of information for our viewers and helping them to recognize how important it is to have an organized legal plan for their future and the future of their loved ones.”

After the tapings, Lucy said, “it was a great pleasure to work with the women who make Total Woman possible. I thank Cheryl and her crew for recognizing how important estate planning and elder law is to their audience.”

Lucy practices law with father and son attorneys Mark and Patrick Curley at Curley Law Firm in Wakefield, where she focuses her practice on estate planning, asset protection planning, and specialized estate and capital gains tax planning.

The Total Woman is a cable access program, started in 1992 and produced out of Stoneham Cable Access Station by an all-female, all-ages crew. Cheryl Webb Scott interviews women from all over the world and from all walks of life to discuss issues relating to their work and their lives. The highly successful program is now circulated to cable access stations in 52 communities throughout the Eastern and Mid Western states.

Check your local cable access listings to see when “The Total Woman” elder law programs will be airing, or watch online by visiting Curley Law Firm’s YouTube Channel.

What Trust is Best?

(This article was originally published in the Wakefield Daily Item)

By PATRICK G. CURLEY, ESQ.

Q .  I signed a Trust but I’m not sure if it is Revocable or Irrevocable.  Does it matter?      

A.  Yes, there is an enormous difference.  Both can accomplish excellent goals so let me spell out the key differences.   

If you establish a revocable trust, it means that you can change it by revoking or amending it during your lifetime. Revocable trusts are most commonly known for helping avoid Probate upon death.  In addition, the revocable trust offers the grantor (the person establishing the trust) 100% control during their lifetime.  Since you are in full control, the revocable trust cannot offer any asset protection.

On the other hand, if your trust is irrevocable, you may not amend or revoke it and you give up a significant degree of control.  Because of this loss of control, irrevocable trusts are less common than revocable trusts and often misunderstood. Irrevocable trusts can offer protection that revocable trusts cannot. For many families the benefits outweigh the loss of some control.

By way of example, we often prepare irrevocable trusts for seniors because their desire to protect their home against nursing home costs and Medicaid far outweighs the loss of control imposed by the trust.  This is especially true after we show clients that we can customize the irrevocable trust to ensure that the client can continue to live in their home, that the trustee can sell the home if downsizing is desired, and the client can change the trustee to make sure the trust is well managed.

Because of the control limitations of an irrevocable trust, we do not advise that people put all their assets in an irrevocable trust.  In fact, we often recommend a mix of both an irrevocable trust and a revocable trust.

Both irrevocable and revocable trusts can be drafted to include a number of other beneficial provisions.

If you sell your home, you owe capital gains taxes on the gain in value, which is loosely defined as the difference between what you paid for your home and the sale price.  The government grants a tremendous tax benefit to homeowners under which unmarried individuals can exclude $250,000 in capital gains on the sale of their primary residence, and married folks can exclude $500,000.  Irrevocable and revocable trusts, if drafted correctly, can preserve this capital gains tax exclusion. Other types of planning, such as life estate deeds or transferring a home to a child, can reduce or eliminate the tax benefit.

Both revocable and irrevocable trusts can be drafted to include estate tax planning benefits for married couples, which can effectively double the amount of money they can pass tax free to their beneficiaries.  Instead of paying more than you need to the government in taxes you can preserve your savings for your family.

Another feature that attracts a lot of interest from clients is the ability to protect their family’s inheritances under the trust.  Upon the elder’s death, rather than the inheritance passing directly to the beneficiary, the inheritance stays in trust for the benefit of the beneficiary.  The funds can be used for the beneficiary’s health, education, maintenance and support.  But the funds are protected against a number of risks including lawsuits against a beneficiary, claims by a beneficiary’s creditors, and demands by a beneficiary’s spouse in a divorce settlement.

If a trust beneficiary is a minor or has special needs, we can ensure that their share can be protected too. Without this planning, an 18 year old beneficiary would receive his full inheritance — and potentially blow it on expenses you would not approve (flashy car, gambling, vacations, etc.).  Likewise, without this planning, an inheritance can cause a special needs beneficiary to lose eligibility for public benefits programs they may be receiving now or need in the future.  With careful planning, the inheritance can be used for the benefit of minors or special needs beneficiaries without jeopardizing benefits eligibility or being subject to wasteful spending.

Because of the range of design options, it is vital that you consult a Qualified Elder Law Attorney to discuss how these trusts can benefit you.

About Curley Law Firm LLP

Attorneys Patrick Curley and Lucy Budman are two of less than two dozen Certified Elder Law Attorneys (CELA) in Massachusetts, making Curley Law Firm LLP one of just three Elder Law firms in MA that offer two CELAs on their team.  The value of working with a firm led by a CELA is the peace of mind you receive — knowing that you will get the very best advice available to protect yourself, your family and your assets.  A CELA is a recognized expert in legal matters dealing with the elderly and disabled.  This includes Trusts, Wills, Protecting Assets against nursing home costs and securing Medicaid/MassHealth benefits.

At a time when many lawyers claim to practice “elder law”, having a CELA-led team working on your plan means having one of the very few experts in the Commonwealth on YOUR team.

Worried about Estate Taxes?

Do you want to give your money to the government?  Probably not, but if you have more than $1 million of total assets, you – actually your Estate – will pay the government handsomely at the time of your death in the form of Estate Taxes.  Many people do not THINK they have $1 million in assets, but when you include life insurance, home, car and IRAs, you may have more than you realize. With our expertise, we can design a plan to help you eliminate or minimize Estate Taxes to ensure that your wealth passes to your loved ones rather than the government.  Estate taxes are paid only by those who fail to plan.  Contact us to ensure that you are protected.

Worried about Nursing Home Costs?

With some area Nursing Homes now charging more than $425 a day (that’s $155,000 a year!), most seniors are quite reasonably worried about Nursing Home costs.  We can help.  With our expert advice and planning, we can help you protect your home and/or other assets against the risk of Nursing Home costs.  There is no greater peace of mind than knowing that you have lawfully taken action to secure your future.

Already in a Nursing Home? 

Very often clients come to us in crisis: a spouse or a parent has been hospitalized or is already in a Rehab or Nursing Home.  They assume that the cost will wipe them out.  Without careful planning, their assumption will probably come true.  But with our expert advice and planning, we can help you protect your home and/or other assets and at the same time qualify for MassHealth (Medicaid) benefits.  The sooner you contact us, the more protection we can offer you.


Contact Us!

Do you have an Elder Law or Estate Planning question? E-mail questions to Info@CurleyLawFirm.com or call 781.245.2222 x10 to be considered for future columns).

About Curley Law Firm LLP

Serving clients throughout Massachusetts, Curley Law Firm LLP draws upon more than four decades of combined Estate Planning and Elder Law experience to ensure that you can achieve your planning goals.

Attorneys Patrick Curley and Lucy Budman are two of fewer than two dozen Certified Elder Law Attorneys (CELA) in Massachusetts. Attorney Mark Curley has practiced in the areas of Estate Planning and Elder Law for over three decades.

The value of working with a firm with CELAs on the team is the peace of mind you receive - knowing that you will get the very best advice available to protect yourself, your family and your assets. A CELA is a recognized expert in legal matters dealing with Estate Planning and Elder Law including Trusts, Wills, Asset Protection against Medicaid and nursing home costs, Medicaid (MassHealth) benefits planning and applications, Probate and Trust administration, Guardianship and Conservatorship, and VA benefits planning.

At a time when many lawyers claim to practice "elder law", having a CELA-led team working on your planning means having one of the very few experts in the Commonwealth on YOUR team.

For experienced representation and quality service from attorneys who will help you achieve your planning goals, please schedule a confidential Initial Consultation by calling us at (866) 406-8582 or visit our website at www.CurleyLawfirm.com

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