Trusts and asset protection


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.


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


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.


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 ?


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


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


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?


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?


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?


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.


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?


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.


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?


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?


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.