Archive for the 'Probate' 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)

What is a Life Estate?

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

By LUCY J. BUDMAN, ESQ.

Q.   Is a Life Estate deed the best way for me to avoid probate of my home? 

 A.  While a Life Estate can avoid probate, you should also consider other probate avoidance strategies that can offer you more flexibility and protection.   

For most people their home is their most valuable asset and the one they want to make sure passes to their loved ones upon their death.  Before you can decide whether or not a Life Estate deed is right for you, you must consider your goals and the costs and benefits of a Life Estate deed.

A “Life Estate” means that you sign a deed conveying your home to someone else – let’s say your children – and you reserve a Life Estate for yourself (and your spouse, if married).  This guarantees you (the “life tenant”) the right to use and occupy your home for the rest of your life, then upon your death, the home passes outside of Probate directly to your children (the “remaindermen”).

Sounds simple, right? It can be if everything goes exactly right. But, if you want to refinance, move, or sell the property before you die, a life estate can cost a lot more than you expected. Some issues that can come up include:

  1. A Life Estate deed is irrevocable and you cannot undo the transfer without permission from the remaindermen, in this case your children.  If you decide that you want to sell, you must get permission from your children.  While you may trust your children implicitly, what if they become incapacitated or die, or what if they simply think they know what is better for you?
  2. Beware of negative capital gains tax consequences for your children if you sell the home during your lifetime.  Federal tax laws offer very favorable treatment for homeowners selling their primary residences.  But in the case of Life Estate deeds, the remaindermen do not typically live in the property so it is not their primary residence.  As a result, your children could owe tens of thousands of dollars of capital gains taxes upon the sale of your home if you sell it while you are alive.
  3. If you and the remaindermen agree to sell the home during your lifetime, you are entitled only to a portion of the proceeds based upon IRS tables, and the rest of the proceeds go to the remaindermen.
  4. Beware of refinancing because in most cases you will need the remaindermen’s permission and they must agree to be liable on the mortgage. Some banks simply refuse to offer financing for Life Estate property.
  5. If you do not keep your end of the bargain (paying real estate taxes, utilities and reasonable maintenance) for any reason, the remaindermen can sue you for damaging or wasting “their” property.
  6. MassHealth can deny your application and disqualify you for MassHealth benefits if you require MassHealth nursing home benefits within five years of the date of the Life Estate deed.  When you sign a Life Estate deed, you are making a substantial gift to your children.  MassHealth imposes gift penalties on all gifts within the five year look back period.
  7. Even if more than five years have elapsed since you signed the deed, if you require MassHealth nursing home benefits, MassHealth can record a lien on the property.  If the property is then sold during your lifetime, the MassHealth lien must be paid off.  Also, MassHealth will not allow you to use your income to maintain the home if you are in a nursing home, thus your children will not be able to sell the home, but will need to step up and cover the home costs including taxes, utilities and insurance.
  8. While most people will not pay an actual gift tax for singing a Life Estate deed, they are often still required to file a special gift tax return with the IRS. You should check with your tax advisor to understand your personal situation.

The bottom line is that while a Life Estate deed can help some people, you need to first consider all of these issues so you can make an informed decision.  You might save some money upfront setting the deed up, but tax costs, family issues and a lack of flexibility can end up costing you a lot more down the road. Other alternatives, such as Trusts, may be more costly to set up but save you stress and headaches as your life and situation changes.

If you already have a Life Estate deed, you may be better off leaving it the way it is but be sure to consult an attorney before selling the home or changing the deed in any way.

Many people say they never want to sell their home, but no one has a crystal ball—five, ten, fifteen years down the road, do you really want to be locked in? Before considering a Life Estate deed, speak with a qualified Elder Law Attorney to discuss the pros and cons both today and down the road.

What is Probate?

(This article was originally published in the Wakefield Daily Item on January 17, 2012)

By PATRICK G. CURLEY, ESQ.

Q. I already signed a Will, does my family go through Probate when I die?

A. Maybe, it depends on how you have set up your assets while you are alive.  Also, bear in mind that a new Probate law comes into effect on March 31, 2012.

Your Will is still valid under the new law, as long as it was valid under the old Probate law.  A Will by itself is always subject to Probate if there are assets to be probated.

A Will simply tells the Probate Court how to distribute your assets and who should be in charge (under the supervision of the Court, of course).  That person will be called the Personal Representative under the new Probate law.  Without the Probate process a Will is just a piece of paper.  For this reason, upon your death, your family must file a Probate Petition to ask the Court to “allow” your Will before your probate assets can be distributed to your named beneficiaries.

Probate assets include those assets titled at the time of your death solely in your name and which fail to list a beneficiary.   For example, bank accounts or real estate are common probate assets.  Only probate assets are subject to pass under your Will.

Non-probate assets may include assets that you hold jointly with someone else (e.g. a joint tenancy on a house), assets that list a beneficiary (e.g. an IRA or life insurance), or assets that you own in Trust (e.g. a bank account titled in the name of the Trust).  If titled correctly, non-probate assets may pass upon your death to the named beneficiary or joint owner without any need for a Court probate.

If you are not careful, however, the beneficiaries you list in your Will might receive very little if your assets when you die are mostly non-probate assets.  There are sad situations where a parent creates a Will providing that their assets shall pass equally to their children, but for purposes of banking convenience they list only one child as a joint owner on all their accounts.  When the parent dies, everything they own passes to that one child who may then refuse to share it with his siblings.  The siblings could then engage in a long, expensive court battle with no guarantee that the Court will order that the funds be shared amongst the siblings as intended by the decedent in her Will.

The new Probate law is intended to make Probate speedier and easier for simple Estates – but at this point, only time will tell whether those goals will be achieved.  Probate historically has been a time-consuming, expensive process.  For this reason and more, many people take action so that upon their death, their loved ones avoid the Probate Court.

In most situations, I do not recommend joint ownership with children as a strategy to avoid probate.  Imagine if during your lifetime, the child gets divorced and your former son or daughter in-law walks away with your asset.  Or if the child gets in a car accident and is sued, the court may award your money to the plaintiff because the child was listed as a joint owner.  Joint ownership on real estate or ‘life estate’ deeds can also create tens of thousands of dollars in unnecessary capital gains taxes for your child if the real estate is sold during your lifetime.

Instead, I recommend the use of Trusts to avoid Probate and to achieve many other potential planning goals.  A mix of one or more Trusts can achieve various goals including but not limited to (1) protecting your assets against the risk of nursing home costs, (2) ensuring your family can avoid Probate Court Conservatorship proceedings if you become incapacitated, (3) protecting inheritances for a disabled beneficiary, (4) eliminating or minimizing Estate Taxes upon your death, and (5) protecting inheritances against divorce, creditors and lawsuits.

Oftentimes, people come to me with Trusts and they do not fully understand what goals their Trust accomplishes.  For instance, sometimes people think their assets are in an irrevocable trust and protected against the risk of nursing home costs.  Quite frequently, their Trust states that they have the right to amend or revoke the trust, thereby making the Trust revocable and all the assets in the trust countable to Medicaid.  For this reason, it is essential that people fully understand what their Trust achieves and does not achieve.  Because of the importance of this issue, I will focus on Trusts in my next column.

Finally, I strongly advise that everyone signs a Will, even if they have modest assets or they expect to have only non-probate assets upon their death.  You never know what you will die owning (if you die in a car accident, your probate Estate may recover a big settlement), so it is important you sign a Will to direct how any probate assets pass when you die.  And remember, without a valid Will, you are entrusting our legislature to direct where your assets go.  With all due respect to our legislature, its plan for your probate assets may not match yours.


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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