Should I include survivorship language in my deed, I am not married and I am the only one purchasing the property, ?

ADDITIONAL INFORMATION:

I have two children.  I am the only one purchasing the house and I am not married.  What type of deed would be best for me?

ATTORNEY ANSWER BY MARGARET L. CROSS-BELIVEAU:

You should always consult with an estate planning attorney as there are many options.  Which one you pick depends on your age, your financial situation, and the ages of your children and grandchildren.

If you add other people as joint owners on the deed, you will be making a gift to them.  This means that your ownership will be subject to their creditors as well as future divorces.  If one of your children predecease you, you have no control over who inherits your child’s ownership in your property.  If you want to sell the property during your life, all the owners must agree.  The proceeds of the sale will be divided among the owners.  Also, a joint owner has the right to sell his portion of the property.  If you did not buy the interest back, the joint owner has the right to force a sale of the property on the open market. [Read more…]

Filed Under: Questions & Answers

New Hampshire Real Estate Transfer Tax

Attorney David M. Beliveau submitted an article to the New Hampshire Bar discussing the real estate transfer tax and the change in the law as it pertains to real estate transfers to revocable trusts and LLCs. Read the entire article below.

Tax Law: Amended Last Year: A NH Real Estate Transfer Tax Primer

By: David Beliveau | New Hampshire Bar

The New Hampshire real estate transfer tax (NH RSA 78-B) – a tax on the transfer of New Hampshire real estate – is $0.75 per $100 of the full price of or consideration for the real estate for the purchaser and the seller (meaning half of the total tax is paid by the purchaser and half by the seller).

The tax, collected by the NH Department of Revenue Administration (DRA), requires filing DRA forms PA-34, Inventory of Property Transfer; CD-57-P, Declaration of Consideration Real Estate Purchaser (Grantee); and CD-57-S, Declaration of Consideration Real Estate Seller (Grantor). The law changed last year in the case of real estate transfers to revocable trusts and LLCs.

During a person’s life, he or she may establish a trust and transfer assets to it. As a result, such assets will avoid probate when the person dies. Real estate may be transferred to the trust.

Prior to last year, a transfer of New Hampshire real estate to a revocable trust was subject to a minimum $40 real estate transfer tax. In such case, the applicable deed language was something like: “This is a non-contractual conveyance for which no consideration is paid. Therefore, the minimum $40 State of New Hampshire real estate transfer tax liability is payable.” All three of the above-referenced DRA forms were required to be prepared and filed. [Read more…]

Filed Under: Articles, Real Estate Articles, Tax Articles

Medicaid Irrevocable Trusts – Do They Protect Assets?

The New Hampshire Bar Association recently published an article written by Attorney David M. Beliveau discussing the use of Medicaid irrevocable trusts as a legal tool to protect assets (typically, a residence) in the case one has to be admitted to a nursing home and apply to receive Medicaid to cover the respective cost. The question is, do such trusts work? Read the entire article below.

Elder, Estate Planning & Probate Law: Medicaid Irrevocable Trusts: A Tale of Two Cities?

By: David M. Beliveau | New Hampshire Bar Article

With the increasing cost of nursing home care, some elders are using Medicaid irrevocable trusts to try to protect their assets (typically, their residences) in case they have to be admitted to a nursing home and apply to receive Medicaid to cover the respective cost. The question is, do such trusts work? Last year, both the New Hampshire Supreme Court in In re Petition of Braiterman and a Massachusetts appellate court in Heyn vs. Director of the Office of Medicaid answered the question.

Both Braiterman and Heyn turned on each court’s interpretation of the “any circumstance” test. Under 42 USC Section 1396p(d)(3)(B), if there are any circumstances under which payment from the trust could be made to or for the benefit of the Medicaid applicant, then the Medicaid irrevocable trust is deemed countable for the purpose of determining the Medicaid applicant’s eligibility for Medicaid. In Braiterman, the New Hampshire court appears to have interpreted the “any circumstance” test broadly and, consequently, found the Medicaid irrevocable trust at issue problematic. In contrast, in Heyn, the Massachusetts court appears to have interpreted the “any circumstance” test narrowly and, consequently, found the Medicaid irrevocable trust at issue not problematic. [Read more…]

Filed Under: Articles, Elder Law Articles, Estate Planning Articles, General Posts

Can I file for compensation as a caregiver and daughter against my mothers will?

ADDITIONAL INFORMATION:

I was caregiver for my step father when he had terminal cancer for five years, also for my mother during and after that time. This was a twenty four- seven situation which included all aspects of care for them plus taking care of their home inside and out. I had to move in with them as they could not be left alone, putting my entire life on hold for a period of approximately ten years. Now I am sixty years old with no job, no home, and not enough money to get back on my feet. My siblings ,who did not participate in caring for our parents , have equal shares in the estate and cannot understand or don’t care that I will be homeless in a month when I have to be out of our parents house so they can sell it.

ATTORNEY ANSWER BY MARGARET L. CROSS-BELIVEAU:

I am sorry for your situation.  This is not an uncommon situation.  One child put his life on hold to care for sick parent and there is not a discussion within the family on how this will impact the caretaker’s finances.  Often the estate plan is not updated because the care alone is overwhelming to the parent.  You may have a claim against the estate if you can prove you had an agreement with your parents that you were to be compensated.  You should speak with a probate attorney.

Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.

Beliveau Law Group: Massachusetts | Florida | New Hampshire

The estate administration attorneys at the Beliveau Law Group provide legal services for probate, estate administration, and trust administration. The law firm has offices and attorneys in Naples, Florida; Waltham, Massachusetts; and Salem, New Hampshire.

Filed Under: Questions & Answers

Mom has stage 4 dementia. Can she make financial decisions and changes regarding the trust?

ADDITIONAL INFORMATION:

Mom and dad set up a trust in 1993. Dad was a farmer and passed in 2001. The trust states that my brother may farm the land at fair market value.  Mom is 87 and recently fell and broke her hip. She has been diagnosed with stage 4 dementia. Mom will probably need extra care (assisted living, nursing home type care). Checking moms finances, I realized my brother, who is a trustee, has been only paying about half of fair market value. Mom is the grantor and also a trustee on the trust. Can she still make decisions regarding the trust?

ATTORNEY ANSWER BY MARGARET L. CROSS-BELIVEAU:

An incompetent person cannot serve as a Trustee. The trust should have provisions in it spelling out Trustee succession. You should consult an estate planning attorney who is also familiar with elder law. The trust will need to be reviewed to see if your mother can qualify for benefits from such programs as Medicaid. [Read more…]

Filed Under: Questions & Answers

Does a living trust have precedence over a previously written will?

ADDITIONAL INFORMATION:

My mother in law recently passed away. She had been going downhill since she had surgery August of 2016. She was showing signs of dementia and it got worse as the days went on. Her previous doctor even has that in her medical records.
Before she had surgery she filled out a will.  She had four children. In the will she left all four children equal shares of real estate that she owned.
In March of 2017, 2 weeks after she was admitted into a nursing home, she signed a living trust transferring all of her real estate to my wife’s sister. We thought that once my mother in law passed, the property would be divided equally. It wasn’t! My sister in law gave one of her brothers a parcel and she kept the rest. [Read more…]

Filed Under: Questions & Answers

If an individual has been married to someone for 4 months, does the surviving spouse have Spousal Rights??

ADDITIONAL INFORMATION:

Is the surviving spouse entitled to exercise their right in the sale of property, if the deceased spouse was a joint heir to property before they died! Does the surviving spouse have the right to confirm or deny the sale of the property? If the couple actually lived on the property does the surviving spouse have to move?

ATTORNEY ANSWER BY MARGARET L. CROSS-BELIVEAU:

This is not a straightforward scenario. You state that the decedent was a joint heir. This does not tell me how the property was owned when he died. Was it still part of someone else’s probate estate? If yes, then the PR of the other person’s estate can still sell the property.
Was the other person’s estate closed so that the two of you owned the property in you names when he died? And if so, was it joint ownership or tenant in-common ownership? With joint ownership, title passes to the survivor of the two by operation of law. If it is tenant in common, then a probate must be opened for the decedent to sell the property. Then we have to look to see when and if the decedent executed a will and/or a prenup. You should consult an attorney. [Read more…]

Filed Under: Questions & Answers

When someone is made executor should there not be some bookkeeping records provide to the others named in the will?

ADDITIONAL INFORMATION:

Brother is executor. All was to be divided equally, only the executor knows the full amount in the estate, there have been some shady purchases. Has caused a divide in the family, feel there should be some accountability for the executor to be sure they are following the requirements of the will. Bank statements list of expenses.

ATTORNEY ANSWER BY MARGARET L. CROSS-BELIVEAU:

Personal representatives are required to file an inventory within 3 months of their appointment.   They are required to submit an accounting to the court and the beneficiaries before the executor is discharged and should also be filed annually.   Copies of the accounting are provided to the beneficiaries, who are requested to assent.   However, if you feel that the executor is not acting in the best interest of you as a beneficiary or you have not received copies of these documents, you should consult an attorney.  The attorney can file with the court to compel action from the personal representative.

Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.

Beliveau Law Group: Massachusetts | Florida | New Hampshire

The estate administration attorneys at the Beliveau Law Group provide legal services for probate, estate administration, and trust administration. The law firm has offices and attorneys in Naples, Florida; Waltham, Massachusetts; and Salem, New Hampshire.

Filed Under: Questions & Answers

How do I register an international divorce?

ADDITIONAL INFORMATION:

My (non-US citizen husband) and I married both in Taiwan and in USA? We divorced amicably in Taiwan. I’d like to register the divorce the US . There are no settlement issues. We have two adult children and one child still under the age of 18. I have sole custody.
We executed the Taiwan divorce agreement in both English and Chinese. I’d also like to reclaim my maiden name.

ATTORNEY ANSWER BY MARGARET L. CROSS-BELIVEAU:

There is a procedure for registering foreign judgments. You will need an exemplified copy of the judgments. You likely will need to consult with an experienced attorney on this.  Now that you are divorced it would be a good idea to meet with an estate planning attorney to execute a new will, health care proxy and power of attorney.

Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.

Beliveau Law Group: Massachusetts | Florida | New Hampshire

The family law attorneys at the Beliveau Law Group provides legal services for probate, estate administration, and trust administration. The law firm has offices and attorneys in Naples, Florida; Waltham, Massachusetts; and Salem, New Hampshire.

 

Filed Under: Questions & Answers

How do I enact a power of attorney?

ADDITIONAL INFORMATION:

My Mom has been giving her money to a scam artist. So far l think it’s about $150,000. She thinks she is going to marry this guy she’s never met. The police have been called by 2 different banks and they have explained that she could go to jail for money laundering but this is not stopping her. I am her poa but how do I get it enacted

ATTORNEY ANSWER BY MARGARET L. CROSS-BELIVEAU:

Generally, the agent’s power under the durable power of attorney begins as soon as the document is executed.  It is practically impossible for you to keep her from giving away her money if she has not been declared incompetent by her doctors.  Sometimes a parent’s behavior can only be curtailed by the child filing for a guardianship.  Once again, your mother will need to be declared incompetent in the proceeding.

I do not see this as a case of money laundering, but rather elder abuse.  You need to report the matter to Adult Protective Services.

Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.

Beliveau Law Group: Massachusetts | Florida | New Hampshire

The elder law attorneys at the Beliveau Law Group provides legal services for estate and asset protection planning. The law firm has offices and attorneys in Naples, Florida; Waltham, Massachusetts; and Salem, New Hampshire.

Filed Under: Questions & Answers

Planning to move out of state? Your current custody situation matters

According to a recent ruling from a New Jersey family court, your current custody arrangement can make a big difference if you’re thinking of relocating to another state with your child.

The mother in that case had emigrated from Cuba in 1999 and lived in Florida until 2004, when she moved to New Jersey to work in pharmaceuticals. That’s apparently where she met her husband, who she married in 2009 and with whom she had a daughter.

The couple divorced in 2015. The divorce agreement said they’d share joint legal custody and the mother would be considered the “parent of primary residence.” Once the mother vacated the marital home, the father would be the “parent of alternate residence.” The father was to have the daughter on Mondays, Wednesdays and alternate weekends. The agreement didn’t discuss the issue of out-of-state relocation. [Read more…]

Filed Under: Articles, Family Law Articles

Things to think about when your intended has bad credit

Love can blind a person to many things, and bad credit is one of them. But that’s an issue that can come back to bite you later. If your spouse-to-be has bad credit, it can cause huge problems, keeping you from having the kind of married life you’d planned on. It will rear its ugly head when you’re thinking about buying a house, when you’re trying to give your kids the best possible educational, athletic and enrichment opportunities and even when you’re trying to plan the wedding of your dreams. That’s why it’s important to sit down with your intended before getting married and having an honest financial conversation.

One thing you need to talk about is what kind of debt you’re both bringing into the marriage.  For example, do you or your significant other have “good” debt? In other words, long-term debt at a reasonable interest rate, like a student loan, a mortgage or perhaps a business loan? If your fiancé has this kind of debt and a solid job with a promising career trajectory and a good track record of making payments on time, chances are you’re OK.

But what if your intended has a lot of “bad” debt: short-term high-interest debt, like credit cards and car loans that show he’s living beyond his means and which he can’t realistically pay back? This is the kind of situation that could ultimately put a huge crimp in your lifestyle, serve as a source of tension and perhaps imperil your marriage. [Read more…]

Filed Under: Articles, Family Law Articles

Wedding cancelled; Jilted fiancé can get engagement ring back

There was a time when many states allowed a person to sue another person for breach of a promise to marry. This resulted in a lot of colorful lawsuits that provided for sensational trials and plenty of entertaining gossip in otherwise dull towns. The ability to bring such suits resulted in runaway verdicts and abuse, which is why so many states have adopted “heart balm” laws that forbid jilted suitors from bringing such cases.

But that doesn’t mean a heartbroken suitor has no recourse at all. If a recent Virginia case is any indication, a man who’s left at the altar can still sue to recover the engagement ring.

The case involved Ethan, an accountant who proposed to Julia in 2012. But the relationship went bad over the course of the next year and the engagement was called off. [Read more…]

Filed Under: Articles, Family Law Articles

Wife can share in ex-husband’s ‘post-employment compensation’

A divorced man could be ordered to share with his ex-wife a sum of money that he received from his employer after he stopped working, the Rhode Island Supreme Court has decided.

The husband, Richard Beverley “Bev” Corbin III, had started working with a division of megabank Wells Fargo in July 2006. He signed an agreement to work as an at-will employee for two years.  By June 2008, things started to go sour. By September 2008 he and the employer couldn’t come to an agreement about his continued employment, so he took part in Wells Fargo’s dispute resolution process, signed a departure agreement and release of any claims he might have against the company and was given a $175,000 lump sum payment.

Corbin and his wife Anne subsequently decided to divorce. During the divorce proceeding, a family court judge ruled that the $175,000 lump sum payment represented “back wages” that should be considered part of the marital estate and awarded 50 percent of it to Anne. [Read more…]

Filed Under: Articles, Family Law Articles

Prenups can be challenged if terms aren’t fair

Most people who are getting divorced assume that if they agreed to a prenuptial agreement before they got married they’re going to be stuck with its terms.

That’s generally the case, which is why if you’re being asked by your betrothed to sign a prenup, it’s a good idea to consult with a lawyer of your own beforehand and to make sure you speak to a family law attorney instead of a generalist who’s dabbling in divorce law.

Still, contrary to general belief prenups are not necessarily bulletproof. In fact, depending on the circumstances and where you live, a divorce court judge may be willing to toss a prenup aside if the terms are legitimately unfair. [Read more…]

Filed Under: Articles, Family Law Articles

Long-term care benefits for veterans and surviving spouses

Long-term care costs can add up quickly. But for veterans and the surviving spouses of veterans who need in-home care or are in a nursing home, help may be available. The Veterans Administration (VA) has an underused pension benefit called Aid and Attendance that provides money to those who need assistance performing everyday tasks. Even veterans whose income is above the legal limit for a VA pension may qualify for the Aid and Attendance benefit if they have large medical expenses for which they do not receive reimbursement.

Aid and Attendance is a pension benefit, which means it is available to veterans who served at least 90 days, with at least one day during wartime. The veteran does not have to have service-related disabilities to qualify. Veterans or surviving spouses are eligible if they require the aid of another person to perform an everyday activity, such as bathing, feeding, dressing or going to the bathroom. This includes individuals who are bedridden, blind or residing in a nursing home.

To qualify the veteran or spouse must have less than $80,000 in assets, excluding a home and vehicle. In addition, the veteran’s income must be less than the Maximum Annual Pension Rate (MAPR). Following are the MAPRs for 2017: [Read more…]

Filed Under: Articles, Elder Law Articles

Hospitals now must provide notice about observation status

All hospitals must now give Medicare recipients notice when they are in the hospital under “observation.”  The notice requirement is part of a law enacted in 2015 that just took effect.

Signed by President Barack Obama in August 2015, the law was intended to prevent surprises after a Medicare beneficiary spends days in a hospital under “observation” and is then admitted to a nursing home. This is important because Medicare covers nursing home stays entirely for the first 20 days, but only if the patient was first admitted to a hospital as an inpatient for at least three days.  Many beneficiaries are being transferred to nursing homes only to find that because they were only under observation and were therefore hospital outpatients all along, they must pick up the tab for the subsequent nursing home stay — Medicare will pay none of it.

The law, the Notice of Observation Treatment and Implication for Care Eligibility (NOTICE) Act, does not eliminate the practice of placing patients under observation for extended periods, but it does require hospitals to notify patients under observation for more than 24 hours of their outpatient status within 36 hours, or upon discharge if that occurs sooner. The Act required hospitals to begin giving patients this notice as of March 8, 2017.  Some states, including California and New York, already require such notice. [Read more…]

Filed Under: Articles, Elder Law Articles

Short-term care insurance: An alternative to the long-term care variety

A little-known insurance option can be an answer for some people who might need care but are unable to buy long-term care insurance. Short-term care insurance provides coverage for nursing home or home care for one year or less.

As long-term care premiums rise, short-term care insurance is gaining in popularity. This type of insurance is generally cheaper than its long-term care counterpart because it covers less time. Purchasers can choose the length of coverage they want, up to one year. According to the American Association for Long-Term Care Insurance, a typical premium for a 65-year-old is $105 a month.

People who can’t qualify for long-term care insurance because of health reasons may be able to qualify for short-term care coverage. This kind of insurance doesn’t usually require a medical exam and sometimes only has a few medical questions on the application. Another benefit of short-term care insurance is that there usually is not a deductible. The policies begin paying immediately, without the waiting period usually found in long-term care policies. [Read more…]

Filed Under: Articles, Elder Law Articles

New protections for nursing home residents

Obama-era rules designed to give nursing home residents more control of their care are gradually going into effect. The rules give residents more options regarding meals and visitation as well as making changes to discharge and grievance procedures.

The federal Centers for Medicare and Medicaid finalized the rules, which are the first comprehensive update to nursing home regulations since 1991, in November 2016. The first group of new rules took effect in November. The rest will be phased in over the next two years.

Here are some of the rules newly in effect: [Read more…]

Filed Under: Articles, Elder Law Articles

Four legal steps to take right after an Alzheimer’s diagnosis

If you or a loved one has been diagnosed with Alzheimer’s disease, it is important to start planning immediately. There are several essential documents to help you once you become incapacitated, but if you don’t already have them in place you need to act quickly after a diagnosis.

Having dementia does not mean that an individual is not mentally competent to make planning decisions. The person signing documents must have “testamentary capacity,” which means he or she must understand the implications of what is being signed. Simply having a form of mental illness or disease does not mean that you automatically lack the required mental capacity. As long as you have periods of lucidity, you may still be competent to sign planning documents.

Here are some essential documents for a person diagnosed with dementia: [Read more…]

Filed Under: Articles, Elder Law Articles

6 must-dos when you donate to charity

Donations are a great way to give to a deserving charity, and they also give back in the form of a tax deduction. Unfortunately, charitable donations are under scrutiny by the IRS, and many donations without adequate documentation are being rejected. Here are six things you need to do to ensure your charitable donation will be tax-deductible:

  1. Make sure your charity is eligible. Only donations to qualified charitable organizations registered with the IRS are tax-deductible. You can confirm an organization qualifies by calling the IRS at (877) 829-5500 or visiting the IRS website.
  2. Itemize. You must itemize your deductions using Schedule A in order to take a deduction for a contribution. If you’re going to itemize your return to take advantage of charitable deductions, it also makes sense to look for other itemized deductions. These include state and local taxes, real estate taxes, home mortgage interest and eligible medical expenses over a certain threshold. [Read more…]
Filed Under: Articles, Tax Articles

The Equifax breach and you: be proactive

Earlier this year, hackers were able to breach the security of Equifax, one of the three national credit reporting agencies. More than 143 million Americans – nearly half the entire country – were exposed to the attack, and may have had their personal information stolen (including names and birthdates, and Social Security and driver’s license numbers).

Equifax is still determining exactly whose data has been exposed. While you wait to find out, it’s worth taking a few proactive steps to make sure your info isn’t misused by hackers.

  • Start checking. Visit Equifax’s website at www.equifaxsecurity2017.com and enter your last name and last six digits of your Social Security number. The site will tell you whether it’s likely or not your data has been exposed, and put you on a list to get more information. You can also sign up for a year’s worth of free credit monitoring. [Read more…]
Filed Under: Articles, Tax Articles

Year-end tax checklist

As the year draws to a close, there are several tax-saving ideas you should consider. Use this checklist to make sure you don’t miss an opportunity before the year is out.

  • Retirement distributions and contributions. Make final contributions to your qualified retirement plan, and take any required minimum distributions from your retirement accounts. The penalty for not taking minimum distributions can be high.
  • Investment management. Rebalance your investment portfolio, and take any final investment gains and losses. Capital losses can be used to net against your capital gains. You can also take up to $3,000 of capital losses in excess of capital gains each year and use it to lower your ordinary income. [Read more…]
Filed Under: Articles, Tax Articles