Home sellers relinquish control after a sale

If you sell your home, the new owners can paint the house pink, tear out the stone wall your grandfather built, and cut down the maple tree you carved your initials in. Once you sell your home, there’s pretty much nothing you can do to prevent the new owners from making changes.

Even if you try to stipulate certain provisions prior to a sale, such conditions aren’t usually enforceable in a court of law. That said, neighborhood associations can pass certain covenants and restrictions that limit changes such as house color, additions and landscaping. These conditions typically do hold up under legal scrutiny.

If you want to place a condition on the sale of your home or work around a neighborhood covenant on a house you own, consult a real estate attorney.

Zoning laws challenge tiny-home owners

Tiny-home building shows may be all the rage on TV, but these programs rarely explore one big hurdle that comes with tiny-home ownership: Where on earth should you put it?

In many areas, zoning regulations prohibit temporary accommodations such as RVs, mobile homes, and their new close cousins, tiny houses. Zoning laws may require minimum square footage for homes, may prohibit portable structures, or may limit what’s known as “accessory dwelling units,” such as small houses placed in the backyard of an existing home.

In other cases, tiny house owners may find themselves simply priced out of a home site due to zoning laws that require minimum lot sizes beyond their financial reach. [Read more…]

Landlords bound by lease agreements, too

While it’s common knowledge that a tenant must pay rent on time, keep utilities the running, and adhere to various other lease provisions (e.g. routine maintenance, limits on pets and guests), it’s also true that landlords must abide by lease agreements.

Some landlords may attempt to violate a lease agreement by asking tenants to leave prior to the contracted lease period, failing to make certain repairs, violating health and safety conditions, or otherwise making the property inhabitable.

If a landlord fails to live up to a lease agreement and provide a habitable space, tenants may find recourse by reporting violations to local housing authorities, the city building inspector, or a statewide tenant resource center. Try an online search for “tenant rights” in your state to locate possible resources.

Tenants should communicate with their landlord in writing and keep records of all violations and communication. Seek help from a lawyer before attempting any other steps, such as rent deductions, rent withholding or abandonment.

Choose the right entity for real estate investments

When purchasing an investment property, most real estate owners form a holding company or a legal entity designed to provide certain tax advantages and a level of protection from personal liability.

Which entity you choose depends on how you’ll manage your investment and your overall financial goals. To make an informed choice, seek professional counsel from a tax and/or legal advisor.

Sole proprietorships and general partnerships generally offer the least benefit, as the person running the business remains personally accountable for any debts or liabilities. That means if an accident occurs on your property, your personal wealth is at stake. [Read more…]

Tips for choosing your next mortgage lender

Home buyers today have a variety of options when it comes to finding a mortgage lender. They can choose a traditional face-to-face relationship with a lender at their local bank, opt for a mortgage broker who will shop the best deals for them, or go it online with a range of non-bank lenders, such as Quicken Loans, Rocket Mortgage, or Lenda.

Be aware, however, that more than a quarter of first-time home buyers regret their choice. According to a mortgage satisfaction study by J.D. Power, 27 percent of first-time buyers and 21 percent of all home buyers wish they had chosen an alternate lender.

Customers reported dissatisfaction with communication, unmet promises, and feeling pressured to choose a particular lending product.  [Read more…]

Contingencies create a way out of real estate contracts

You’ve signed the contract and transferred the earnest money, but just how binding is your real estate contract? That depends on the nature of any contingencies built into the agreement. For buyers, such contingencies provide an exit strategy if the house doesn’t live up to initial impressions.

Here are some common contingencies that could allow a buyer out of a real estate contract: 

* Financing. The buyer may be unable to get financing from his or her lender, or unable to get financing within defined terms. [Read more…]

Your mortgage is my mortgage: How parents are financing a child’s home

With all-cash offers dominating the housing market in some highly competitive cities, first-time homebuyers are finding themselves shut out of negotiations, particularly for the more affordable and in-demand starter homes.

Saving enough for a down payment and closing costs has always been a challenge for young home buyers. But in tight real estate markets, the old standby of 20 percent down with a traditional mortgage loan isn’t enough to win a home.

These kids might once have looked to mom or dad for help with a down payment, but now they’re approaching their parents with a much bigger request: enough funds to make a full cash offer. [Read more…]

Trust distribution question

ADDITIONAL INFORMATION:

My sister is trustee on my mother’s trust.  She thought she could give me house because I was the oldest of my siblings.  Is that true? Now I don’t think that’s true because I have a lot of siblings that are beneficiaries on the living trust.

ANSWER BY MARGARET CROSS-BELIVEAU:

Distributions from the trust are governed by the terms of the trust. The Trustee should consult an attorney to determine if she is following its terms.

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

Can a Will be written to say that a home is left to remaining siblings but if they die their share goes back to the others?

ADDITIONAL INFORMATION:

My husband owns his family home (he does not live there). His brother lives there. He wants to put in his Will that the house is left to his seven brothers and sisters. He wants this house to remain in the family. He does not want any spouse or dependents to get this property. It’s like the last one standing will get the house. Is there any legal way to address this in a Will and assure that if any sibling dies their share reverts to the other siblings (and not their children and spouse)?

ANSWER BY MARGARET CROSS-BELIVEAU:

Your husband would need to place the home into a trust. You can’t retrieve an asset after you have given it away, so the home has to be kept from all of the siblings. There are huge issues with the fact that he wants to keep the house in trust. One of the most important is that the house has carrying costs. Who is going to pay all of the expenses? Who will have the right to live in the property? What if no one wants to live in the property?
[Read more…]

Is a POA entitled to any payment as part of the estate settlement process?

ADDITIONAL INFORMATION:

I served as my father’s POA for 2.5 years before his passing.

ANSWER BY MARGARET CROSS-BELIVEAU:

The answer is maybe.  Usually an agent under a durable power of attorney is entitled to reasonable compensation albeit the document itself may not allow the payments (which is rare).  You would have needed to have kept a log of the hours you worked.  Different tasks can demand different pay schedules.

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.

Trusts and asset protection

ADDITIONAL INFORMATION:

Trust language specifies that after main beneficiary dies that the two remainder beneficiaries can receive their share as a total distribution after they reach age 25 if they request it. So they have the option of keeping some or all of their share in the trust per their request. Does this language offer the beneficiaries asset protection from divorce or creditors? If not, can anything be done to provide asset protection? The trust is irrevocable since the grantor is deceased.

ANSWER BY MARGARET CROSS-BELIVEAU:

If a Trustee is required to pay over assets when a beneficiary requests, then there is no asset protection. Those assets are the beneficiary’s. The beneficiary should consult an estate planning attorney of his own. [Read more…]

Proving the hardship exception to the Medicaid penalty period

If you transfer assets within five years of applying for Medicaid, you will likely be subject to a period of ineligibility. There is an exception, however, if enforcing the penalty period would cause the applicant an “undue hardship.” This exception is difficult to prove and rarely granted, but it may be available in certain circumstances.

Under federal Medicaid law, the state Medicaid agency must determine whether an applicant transferred any assets for less than fair market value within the past five years. If there are any transfers, the state imposes a penalty period, which is a period of time in which the applicant will be ineligible for Medicaid benefits. The length of the penalty period is calculated by dividing the amount transferred by what Medicaid determines to be the average private pay cost of a nursing home in the state.

A Medicaid applicant can fight the penalty period by arguing that enforcing it will cause an undue hardship. Federal law provides that an undue hardship exists if the penalty period would deprive the applicant of: (1) medical care necessary to maintain the applicant’s health or life; or (2) food, clothing, shelter, or necessities of life. The burden is on the applicant to prove that hardship exists. A nursing home can pursue a hardship waiver on behalf of a resident. [Read more…]

Family dispute illustrates need for long-term care plan

A recent New Jersey court case demonstrates how important it is for families to come up with a long-term care plan before an emergency strikes.

The case involved two brothers who got into a fight over whether to place their mother in a nursing home. R.G. was the primary caregiver for his parents, as well as their agent under powers of attorney. After R.G.’s mother fell ill, R.G. wanted to place her in a nursing home. R.G.’s brother objected, but R.G. went ahead and had his mother admitted to a nursing home without his brother’s consent. R.G.’s brother sent angry and threatening texts and emails to R.G. as well as emails expressing his desire to find a way to care for their parents in their home. Eventually the men got into a physical altercation in which R.G.’s brother shoved R.G.

R.G. went to court to get a restraining order against his brother under New Jersey’s Prevention of Domestic Violence Act. A trial judge ruled that R.G. had been harassed and assaulted and issued the order. But a New Jersey appeals court reversed the trial court, ruling that R.G.’s brother’s actions did not amount to domestic violence. According to the court, there was insufficient evidence that R.G.’s brother purposely acted to harass R.G. [Read more…]

Use your will to dictate how to pay your debts

The main purpose of a will is to direct where your assets will go after you die, but it can also be used to instruct your heirs on how to pay your debts. While generally heirs cannot inherit debt, an estate’s debt can reduce what they receive. Spelling out how debt should be paid can help your heirs.

If someone dies with outstanding debt, the executor is responsible for making sure those debts are paid. This may require selling assets that you would have preferred to leave to specific heirs. There are two types of debts you might leave behind:

  • Secured debt is debt that is attached to a piece of property or an asset, such as a car loan or a mortgage.
  • Unsecured debt is any debt that isn’t backed by an underlying asset, such as credit card debt or medical bills.

[Read more…]

How Medicare and employer coverage coordinate

Medicare benefits start at age 65, but many people continue working past that age. That makes it important to understand how Medicare and employer coverage fit together.

Depending on your circumstances, Medicare is either the primary or the secondary insurer. The primary insurer pays any medical bills first, up to the limits of its coverage. The secondary insurer covers costs the primary insurer doesn’t cover (although it may not cover all costs). Knowing whether Medicare is primary or secondary to your current coverage is crucial because it determines whether you need to sign up for Medicare Part B when you first become eligible. If Medicare is the primary insurer and you fail to sign up for Part B, your eventual Medicare Part B premium could start going up 10 percent for each 12-month period that you could have had Medicare Part B but did not take it.

Here are the rules governing whether Medicare coverage will be primary or secondary: [Read more…]

Four provisions people forget to include in their estate plan

Even if you’ve created an estate plan, are you sure you have included everything you need to? There are certain provisions that people frequently forget to put in in a will or estate plan that can have a big impact on their heirs.

  1. Alternate beneficiaries

One of the most important things an estate plan should include is at least one alternative beneficiary in case the named beneficiary does not outlive you or is unable to claim under the will. If a will names a beneficiary who isn’t able to take possession of the property, your assets may pass as though you didn’t have a will at all. This means that state law will determine who gets your property, not you. By providing an alternate beneficiary, you can make sure that the property goes where you want it to go.

  1. Personal possessions and family heirlooms

Not all heirlooms are worth a lot of money, but they may have sentimental value. It is a good idea to be clear about which family members should get which items. You can write a list directly into your will, but this makes it difficult if you want to add or remove items. A personal property memorandum is a separate document that details which friends and family members get which personal property. In some states, if the document is referenced in the will it is legally binding. Even if the document is not legally binding, it is helpful to leave instructions for your heirs to avoid confusion and bickering. [Read more…]

Executor for will

ADDITIONAL INFORMATION:

I have been named as executor for my parent’s will. For many years I have been his full time caregiver. I have few assets and basically no credit history. He left a house and a summer cottage. I am thinking it would be much better for my brother who has an excellent credit history and assets to become executor. I doubt I could be bonded as executor. Any advice/thoughts greatly appreciated.

ANSWER BY MARGARET CROSS-BELIVEAU:

In Massachusetts and in several other states (but not all), the bond requirement can be waived in the will and the court will honor the request.  If the assets are located in a state which will not waive the bond, you have to option of declining to serve as the personal representative.  The person who is nominated after you in the will may then serve, or in no one is nominated, the next of kin (your brother) may petition the court to be appointed.
[Read more…]

Can workers compensation put a lien on law suit money ?

ADDITIONAL INFORMATION:

I’m on workers compensation and I’m suing the people responsible for it. Is workers compensation entitled to some of the money?

ANSWER BY MARGARET CROSS-BELIVEAU:

Yes, worker’s compensation is entitle to recover money it advanced to you.  Your attorney may be able to negotiate a lien reduction.

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 litigation 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.

Stepmother did a lady bird deed to her son and cut us right out of the will . 2 weeks after fathers death

ADDITIONAL INFORMATION:

My dad passed away in 2014 . He had a will and stepmom had a will both basic mirror wills . My dad actually gave me copies of both and it named me executor in both of there wills . Before my dads death he called me up very upset he lived in Florida said I’m going to my bank and changing you to beneficiary . He said stepmom and stepson are aggravating him because he wants to move in and my dad couldn’t stand him . I was like dad relax I was busy driving told him I would call him back . The next day I get a call my dad fell but he’s OK. He should be home the next day I was told by them. Had I known he was in grave condition I would’ve flown there right away. They lied to me. I called the hospital and stepmom instructor that no information is to be given out. I explained I had a healthcare proxy. At that time I got a call saying he was unconscious and not waking up . I was very suspicious also by the time I got my flight he had passed they robbed me of being able to say goodbye. When I found out he passed I collapsed I need an ambulance and never made the trip there. Their behavior got more suspicious when she called to say she was going to ship my father’s ashes me .2 weeks later [Read more…]

How does a living trust work?

ADDITIONAL INFORMATION:

I spoke to an elder care attorney about my mother going into a nursing home. I told him I have POA, healthcare surrogate and Will with me as executor. I had concerns about my mother’s home. My sister has been caring for her in our mother’s home for 4 years. She has Alzheimer’s and it’s time for her to be in a nursing home. He advised me what paperwork to get together and that she needs a living trust where her monthly income goes into I’m assuming to pay her portion of the nursing home but why can’t it just be her bank account and why $2500 for him to set it up?

ANSWER BY MARGARET CROSS-BELIVEAU:

Florida is an income cap state for Medicaid. It sounds like your mother has too much income to qualify for Medicaid. In which case, a trust must be set up to capture the excess income. It will be turned over to the state after she passes away. The other part of her income will be paid to the nursing home as her patient pay amount.  Also, in Florida, Medicaid can’t place a lien on an applicant’s homestead.  The home will not be placed in the trust.
[Read more…]

Does my grandmother have any right to clear out my father’s house & keep what she wants?

ADDITIONAL INFORMATION:

My father recently passed away. He had a seizure, hit his head multiple times & was unconscious for 5 days before he passed away. My grandmother was notified when he was in the hospital the 1rst day. She didn’t call me or my brother’s until the 2nd day. By then the hospital gave her my father’s personal things ie keys, wallet etc. She went into his house & cleaned it out while he was dying. Now she’s saying he was her son so she could. She says she’s going to sell my dad’s things in a yard sale.

ANSWER BY MARGARET CROSS-BELIVEAU:

Who inherits you father’s assets depends on what his will says.  If he didn’t have a will, under the law of intestacy, (presuming he is single) his children inherit.  If your father owned substantial assets, a probate will have to be opened to transfer the ownership to his heirs.
[Read more…]

Can I get reimbursed? My ex-wife is paying the mortgage late intentionally?

ADDITIONAL INFORMATION:

I divorced my wife 3 years ago. The judge awarded her full custody and residency (not ownership) of my home, even though my name (only) is on the mortgage loan. My ex has paid the mortgage late over the past two years, hurting my credit and has now moved out of the home. It appears she will try to let the home go into foreclosure, while still trying to make it appear that she lives in the home. I am engaged and expecting a new child soon. Is it reasonable to be reimbursed for her intentional financial negligence? Is it possible that I would get rewarded via child support allocation? Please advise.

ANSWER BY MARGARET L. CROSS-BELIVEAU:

As you are the legal title owner and the mortgagee, it is legally your responsibility to make sure the mortgage was paid on time.  If you are on the loan it was your responsibility to make sure the loan was paid on time.  Child support is earmarked for the child.  The fact that you are engaged and expecting is immaterial.

You should consult a family law attorney to determine if she is in contempt of the divorce agreement.

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 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.

 

What can I do if the executor of a will is refusing to follow the wishes in the will?

ADDITIONAL INFORMATION:

My mother left her estate to her 5 daughters equally. (per her will). The executor, one of the daughters, is not executing her wishes. She will not even speak about it. She did not tell us about the will. We found out by writing several lawyers in town. It has been over 2 months since our mother passed. She (the executor) has all ready taken property out of the house which was supposed to be divided equally. What can we do legally?

ATTORNEY ANSWER BY MARGARET L. CROSS-BELIVEAU:

When there is a will, the person in possession of the will is legally required to submit the will to the Probate Court.  You may petition the court for an order to produce the will.  You may object to her appointment as the Personal Representative (aka Executor) as she has refused to file the will and has taken things from the home.  There is an option to file suit against her for the value of the objects taken from the home.  However, the cost of the suit may be far more than the value of the assets.
[Read more…]

Stay prepared to sell your business

If you enjoy running your own business, selling it may be the furthest thing from your mind. But the reality is that eventually an opportunity to sell will come, whether due to your own life changes or a perfect buyer walking in the door. Planning, often years in advance of the sale date, is necessary to get the most value for the love, sweat and tears you’ve invested. Here are some tips to stay prepared:

  • Assemble a great team. Selling a business is a complex process, especially as you grow larger. You’re likely to need three kinds of professionals to help: an accountant, to help review and produce clean and easy-to-understand financial statements; a lawyer, to create the necessary legal documents and help you negotiate terms; and a trusted business broker, to evaluate the worth of your business and find buyers.
  • Develop your exit strategy. With the help of your advisory team, create a clear picture of what selling your business might look like. Outline the risks and opportunities that could affect the valuation of your business. Planning out an ideal scenario as well as a plan B will help you avoid getting backed into a corner and selling at a discount. [Read more…]

Great uses for your tax refund

Most Americans get a refund every year, with the average check weighing in at $2,895 last year. Even though it’s really money that they earned, many people are tempted to treat it like a windfall and splurge. If you can resist that temptation, here are some of the best ways to put your refund to good use:

  • Pay off debt. If you have debt, part of your refund could be used to reduce or eliminate it. Paying off high-interest credit card or auto loan debt means freeing up the money you had been paying in interest for other uses. And making extra payments on your mortgage can put more money in your pocket over the long haul.
  • Save for retirement. Saving for retirement allows the power of compound interest to work for you. Consider depositing some of your refund check into a traditional or Roth IRA. You can contribute a total of $5,500 every year, plus an extra $1,000 if you are at least 50 years old. [Read more…]

When an extension makes sense

While most people should file a tax return by April 17, you have the option of delaying your filing date until Oct. 15 with a tax extension.

When to file an extension

  • Missing or incorrect information. If one of the forms you need to file your return has an error on it, it is often better to receive a corrected form before filing.
  • Recharacterizing Roth IRA rollover amounts. If you’ve rolled funds from a traditional IRA into a Roth IRA, you may want to reverse it later if the investments lose value. This so-called recharacterization process can be done up to the extended tax-filing date of Oct. 15, and in many cases it makes sense to wait until then. Note that 2017 is the last tax year you can use the recharacterization process, which was eliminated for future years by the Tax Cuts and Jobs Act. [Read more…]

Tax filing reminders

April 17 –

  • Individual income tax returns for 2017 are due.
  • 2017 calendar-year C corporation income tax returns are due.
  • 2017 annual gift tax returns are due.
  • Deadline for making 2017 IRA contributions.
  • First installment of 2018 individual estimated tax is due.