Questions & Answers

Additional Information:

I am considering a short sale on my home in Sherborn.  What are the resulting tax implications of a short sale?

ATTORNEY ANSWER:

Because a short sale involves the forgiveness of debt (in this case the unpaid balance of the mortgage) the seller may get a 1099-C for the amount of the mortgage deficiency.  There are options available which include bankruptcy or relief if you can be considered insolvent.  Also the Mortgage Forgiveness Debt Relief Act of 2007, may provide relief from debt forgiveness taxation for certain owner occupants until December 31, 2012.  These are fact intensive determinations and tax and/or legal counsel should be involved in the transaction.  [Read more...]

Additional Information:

While preparing our 2011 taxes I realized that there has been an error in the past few year’s MA tax returns (in the government’s favor) related to our Waltham home’s property tax.  What’s the likelihood we will get audited?  What’s our obligation to amend the prior year’s taxes and  how would we go about doing it?

ATTORNEY ANSWER:

The likelihood of audit is hard to judge, but States have been getting more aggressive as revenues have fallen.  Also, states now get more information from all sources and in lieu of full blown audits rely increasingly on return adjustment notices.  There are even situations where the taxing authority can look beyond a three year statute to adjust tax due in more current years.  Obviously, there are a lot of variables and a professional should be consulted to discuss the potential exposure.  [Read more...]

Additional  Information:

How do I know if I have a claim? We paid for a title search/insurance, but found out after buying our Waltham property that the title was never clear.  After we moved to MA and moved in, we received a certified letter in the mail stating that our property had been auctioned off for back taxes and would no longer be ours if we did not pay over two years worth of back taxes, including interest and fees, within months. We consulted a lawyer and found that the title had a lein against it and had never been filed. We paid all of the taxes and filed the deed. We have evidence that we paid for a title search & title insurance. Do we have a claim?

ATTORNEY ANSWER:

If you purchased an Owner’s policy of title insurance, the first thing you should do is to contact the title insurance company and file a claim regarding your title issue.  When you closed, the title insurance policy that you purchased is supposed to protect you against most title issues that occurred prior to the time of your purchase.  The title company will research the claim and if it is decided that your policy does cover you for the title issue, the title company may reimburse you for what you had to pay to make you whole again.

[Read more...]

Additional Information:

The contract has been signed by both parties. I’ve already closed on my new home in the South Boston area and I was counting on this closing. I can’t afford to carry both properties any longer. What are my rights, and what are my options?

ATTORNEY ANSWER:

If the buyer defaults on the Purchase and Sale Agreement by not going through with the purchase (not because he has been denied a loan), then he faces losing his deposit to the Seller as the liquidated damages.  The deposit could be tied up if either party refuses to sign a Release of Deposit in order to release the deposit to the appropriate party.  The other option is to take the party to court to enforce the contract to purchase, but the outcome is not certain as in any litigation and the legal fees will be costly.
[Read more...]

Additional Information:

We had a C Corporation which we sold in 2009. The IRS wants to audit the corporation for tax year 2008. They contacted us. We explained we have given all paperwork to the new owner. It was an entity sale and the new owner took responsibility of all past liabilities. The IRS person said they could not get a hold of the new owner. He has disappeared. So they want all 2008 tax paperwork from us. How can the IRS expect us to have paperwork for a company we’ve sold? We gave it all to the new owner!!!  What paperwork can we show the IRS proving the new owner takes responsibility of all past liabilities, including any possible tax problems? What can the IRS do to us if we can not present any 2008 paperwork? They are currently saying we are liable for $250,000!!!

ATTORNEY ANSWER:

The IRS mandates business records be retained for a minimum amount of time depending on the type of document.  If you do not have the original records or copies of them you may have to do some detective work and see if you can recreate the records.  Create a list of vendors and customers for the business from memory and start to contact them TODAY.  Ask them to provide you with all the records for transactions with your business.  Your bank should have these stored electronically so that would be my first stop.  You should hire an attorney and have them work with the businesses accountant.

[Read more...]

Additional Information:

I agreed to buy a condo in Naples, FL and now I’ve decided that it’s not what we want, we’d be making too many concessions.  How do I cancel with the least financial expense?

ATTORNEY ANSWER:

When a buyer enters into a Purchase and Sale Agreement, the buyer needs to be aware that the only reason he or she can get out of the agreement is if the mortgage is denied, the property is damaged to a certain degree or if there is a cloud on title that is not easily resolved.  Changing one’s mind is not a valid reason where one’s deposit will be returned and the Seller is in fact entitled to retain the entire deposit as liquidated damages.  The Buyer can try to negotiate with the Seller and explain his or her circumstances and see if the Seller is willing to give back a portion of the deposit.

[Read more...]

Additional Information:

We are in the process of buying a home in Danvers, MA but the seller is unable to find a replacement property by the time the sixty day escrow closes. They have requested an extension of thirty days. If we do not agree to that extension, what will happen?  Will we lose the appraisal fee, the home inspection fee, and our deposit?  If we do agree, do we get any thing in return?

ATTORNEY ANSWER:

In a standard Purchase and sale agreement where the parties have agreed to close on a certain date and the seller agrees to vacate on or before the closing date and there is no provision saying the sale is subject to the seller finding replacement housing, then the Seller has no legal right to postpone the closing.  Unwilling or unable to move out is not a valid reason to extend the closing date unlike a title issue where Seller does have an automatic 30 day extension  built into the Purchase and Sale agreement.  However, Buyer may accommodate Seller’s desire to extend and ask Seller to reimburse him or her for any additional fees incurred due to the lender fees involved for such extension.  If the Seller is unwilling to cover the additional costs and will not close on time, then Buyer will need to consider whether the costs of taking legal action is worth the additional extension fees, if any.
[Read more...]

Additional Information:

My wife and I are working on our estate planning.  If there is a Federal or MA state gift tax exemption can you please explain it to me?  How do I give gifts to our grandchildren with this tax benefit?

ATTORNEY ANSWER:

There is only a Federal Gift Tax; Massachusetts does not impose a transfer tax on gifts.  Every U.S. Citizen has a cumulative lifetime gifting exemption that was $1,000,000 up until the passage of the recent tax law which increased it to $5,000,000 (but this may only be until the end of 2013).  Additionally, every person has an annual gift tax exclusion of $13,000.  Gifts do, however, have an effect on the Massachusetts Estate Tax.  Furthermore, gifts to grandchildren carry an additional problem at the Federal level due to the Generation-Skipping Transfer Tax.  A comprehensive review of a persons estate plan should be performed you are giving substantial gifts.

[Read more...]

Additional Information:

My mother currently owes back property tax for a few years and just found out that she can apply for a statutory exemption. My question is does the statutory exemption only cover the current year or can it be applied to the past years that she owes taxes for?

ATTORNEY ANSWER:

In some cases a Property Tax exemption that was not taken in a prior year can be obtained in the current year.  Even if the taxes were not paid the exemption may still be available.

[Read more...]

Additional Information:

I have a traditional 401(k), ROTH 401(k), ROTH IRA, a checking account, a savings account, a health savings account, and a taxable brokerage account.  I’m in my early 30s and my total of all these accounts is less than $1 million.  I believe I can designate a beneficiary for all of these accounts to avoid probate. But I don’t want to grant these accounts to beneficiaries outright.  For one, most of the beneficiaries (my nieces and nephew) are minors.   If I grant the funds to their parents (my sisters) I’m concerned that I cannot prevent them from squandering it.  Plus I have other ideas for the funds too (making loans or investments in businesses started by the kids, etc.).  A trust makes sense.  What should I be wary of when naming a trust as a beneficiary as these types of accounts?

ATTORNEY ANSWER:

A trust is a wonderful vehicle to avoid probate and make sure that your beneficiaries will receive their inheritance in the time frame which you envision. Also, it preserves your privacy and the privacy of your beneficiaries because a trust that is created and funded during your lifetime will not have to be filed at the probate court which is open to public scrutiny. [Read more...]

Additional Information:

My great grandmother had Alzheimer’s for several years, but was of sound mind when she made her will. She gave POA to a family member.

Her physical health began failing two months ago and she passed away last month.

Today I received a letter informing me that, in her will, she had left me a considerable sum in an IRA account. It also informed me that the relative with the POA had cleaned out the account just weeks before my great grandmother’s death.

Can he legally do this?

ATTORNEY ANSWER:

The short answer is yes, a power of attorney would have the power to access financial accounts for your great grandmother.  The important question is why the power of attorney tapped the IRA account. [Read more...]

Additional Information:

According to the widow a will did exist but was torn up & a new will was never done prior to the husbands death.  Isn’t is a law that you have to record or register a will in your county seat?   I have been told that before.  The widow is withholding information from the children he had from a prior marriage. She claims everything is hers ..is that true?

ATTORNEY ANSWER:

There is no law that a Will must be recorded before death.  A will may be revoked or amended at any time. A valid way to revoke a will is to destroy the original.  [Read more...]

Additional Information:

My ex is an alcoholic and died one. I believed he knows he does not have long to live, when he was given the package to leave the company, was he allowed to take all his 401K and Pension Fund out before retiring age? He was 47 when he died and it was 2 years after he left the company. Is he entitled to take all the funds and spend since he knows he has not much time to live? He has a son who was a minor when he passed. We just realized that his Trustee had not informed his company about his death so I believed there might be some money left for his son now since he had not received any?

ATTORNEY ANSWER:

Once a person retires, the retiree can either roll the money out of the pension plan into an individual retirement account (IRA) or leave the money in the company’s plan, provided the company’s pension plan allows for that option. Your ex could have very easily spent all of the money from the pension plan. There is no prohibition from withdrawing the money early. He would have had to pay an early withdrawal penalty and taxes.

He also may have left the money in the pension plan.  The executor should contact the plan administrator.

Margaret L. Cross-Beliveau, Esq., LL.M.

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.

The Beliveau Law Group: Massachusetts | Florida | New Hampshire

The attorneys at The Beliveau Law Group provides legal services for estate planning (wills and trusts), Medicaid (planning and applications), probate (estate and trust administration), business law (formation and operation), real estate (residential and commercial), taxation (federal and state), and civil litigation (in connection with these practice areas). The law firm has offices and attorneys in Naples, Florida; Boca Raton, Florida; Danvers, Massachusetts; Waltham, Massachusetts; Quincy, Massachusetts; Manchester, New Hampshire and Salem, New Hampshire.

Additional Information:

My mom and sister died within two days of each other. I am my mom’s representative and her will states that my sister or her estate was to receive a portion of her assets. My sister’s husband (the trustee) is willing to disclaim any proceeds but the insurance company wants a letter of testamentary to validate his right to do so. Since my sister’s estate was not probated what do I do now. My mom was in Colorado and my sister from California.

ATTORNEY ANSWER:

You cannot obtain what you are looking to do without opening a probate for your sister’s estate. Only the fiduciary of your sister’s estate can disclaim or accept the assets. A probate for you sister will have to be opened in either case.

Margaret L. Cross-Beliveau, Esq., LL.M.

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.

The Beliveau Law Group: Massachusetts | Florida | New Hampshire

The attorneys at The Beliveau Law Group provides legal services for estate planning (wills and trusts), Medicaid (planning and applications), probate (estate and trust administration), business law (formation and operation), real estate (residential and commercial), taxation (federal and state), and civil litigation (in connection with these practice areas). The law firm has offices and attorneys in Naples, Florida; Boca Raton, Florida; Danvers, Massachusetts; Waltham, Massachusetts; Quincy, Massachusetts; Manchester, New Hampshire and Salem, New Hampshire.

Additional Information:

Father died 1 year ago, will and small estate affidavit filed at that time.  Bank holds an equity line of credit on home,$70,000.  Estate worth less than $100,000.  Bank demands letter of office, obtained from probate.  Funds to pay for filing of probate by lawyer are in the bank ,we can not access the funds.  We can’t pay until we have access, we can’t access until we probate.  Catch 22, [Read more...]

Additional Information:

I am receiving approximately $200,000 in inheritance with approx $100,000 in a personal residence. I would like to keep property as a rental income to help with my living expenses. Due to multiple sclerosis I have been on work disability for 15 years and need the disability income to live. How do I position my inheritance so that I do not put my disability income at risk? Is there some sort of trust that I can set up so I personally do not get income from the inheritance property?

ATTORNEY ANSWER:

There is only one type of trust available for a person receiving an inheritance who is currently also receiving SSI (social security income). It is a special needs trust with a payback provision to reimburse the state for money it paid for your care. Special needs trusts can also be called supplemental needs trusts. As this is a specialized trust under federal laws, it may also be referred to as a (d)(4)(A) trust. [Read more...]

Additional Information:

We have my mother’s trust accounting & in the accounting there is major amount of money that can not be accounted for & he can not provide the proof of were the money went & for what it went for. Also 2 of her life insurance policies can not be accounted for either. We know they were pd to the trust because the insurance companies told us. But just like the money it just isn’t there we looked all threw the accounting and it is no where. So at this point we are questioning everything he has done. She lived in a Senior living home in her own apartment & when we started looking at her tax returns from before she passed we noticed his address on the returns for the 3 yrs she lived there Not the Senior living home. Can he do this or does it have to be the place where she actually lived ?

ATTORNEY ANSWER:

It appears that the Trustee of your mother’s trust has committed a breach of his fiduciary duty. You should contact an attorney immediately. The longer you wait, the bigger the change the lost money may stay lost. [Read more...]

Additional Information:

I BELIEVE A FAMILY MEMBER HAD TWO WILLS AND I WAS IN ONE OF THEM, BUT THE ONE I WAS IN WAS NOT GIVEN TO THE COURTS AND EVERYTHING WAS LEFT TO THE OTHER PERSON.

ATTORNEY ANSWER:

The Last Will and Testament which was submitted to the Probate Court must be the last Will which was executed by the Testator. All prior Wills are revoked upon the signing of a new Will.  If you are the beneficiary of the last Will executed you must bring it to the attention of the Probate Court. [Read more...]

Additional Information:

What are my right since my mother pass away and there are 10 other siblings involved concerning our mother house and any money that she may have left behind after her final expense has been taking care of?

ATTORNEY ANSWER:

First, you need to determine which assets will need to be probated.  Any assets which were owned by your mother jointly with another person or had a beneficiary designation on them will pass directly to the joint owner or beneficiary. [Read more...]

Additional Information:

A man now only holds a life estate for the house he lives in and signed the deed over to his 2 daughters. Can he sell the house and avoid the capital gain fees because he has lived there for 2+ years out of the past 5 years. Or do his daughters have to sell the house and property and pay the capital gain?

ATTORNEY ANSWER:

Currently the father owns a life estate and the daughters own the remainder interest.  The family can sell the home together but no owner in this situation can force the sell of the entire property without a court order.

Once the family members determine they wish to sell the property, each member will be compensated based on the ownership interests.  The father’s interest is based on his life expectancy.  [Read more...]

Additional Information:

According to an irrevocable trust, as a income beneficiary, I am allowed access to the principal of my trust share trust only under certain ascertainable standards–h/e/m/s. Also, the “trustee’s determination shall be conclusive.  The trustee “shall” take into consideration my “income or capital resources from any source.”  Does this mean that if I have a large amount of resources outside the trust that it will be hard for me to access the principal, if at all? And if I do get access, will there be taxes I have to pay?

ATTORNEY ANSWER:

Under the terms of the trust, the Trustee may only distribute principal to you for your health, education, maintenance and support. As the trust instruments uses the verb “shall”, you will need to prove that your income and capital resources are not meeting your needs.

[Read more...]

Additional Information:

If the deceased had a pour over will filed in probate and any of this assets that wasn’t put into the trust, would pour over from his estate into the trust? If the estate has a independent representative administering the estate, if the administer doesn’t follow the pour over will and by pass the trust without pour over the estate to the trust. Is that illegal? A trust is business; would it have a EIN number?

ATTORNEY ANSWER:

A decedent’s will only governs those assets which pass through the probate estate. Certain assets such as IRAs and life insurance have listed beneficiaries who would inherit the property directly upon the decedent’s death and not be placed into the trust unless the beneficiary is the estate.

[Read more...]

Additional Information:

The spouse would like to leave all assets, tangible items, and insurance payouts to the children only.

ATTORNEY ANSWER:

There is no requirement that a spouse leave assets to the other spouse in a revocable trust or a will. However, most states have statutes which allow the disinherited spouse to make an election against the decedent’s estate to claim a spousal share.  [Read more...]

Additional Information:

I am in charge of an estate and I put the will in probate on 2/2010 and the estate was left 45% of a company and the other 55%.  The man who is running the company was left the 55% and we asked him to buy us out and he said no and is not willing to negotiate a purchase price.   How do I go forward with this situation ?

Also he has not done anything to take over the company legally. The 55% was left to him by the deceased and 45 to his family he was an employee of the company prior to the owners death.

ATTORNEY ANSWER:

An operating agreement is the document which governs how the shares of a company can be transferred and if there are any restrictions on the transfer. You should review the operating agreement, if there is one, carefully. You may be able to sell the shares to an outside investor. [Read more...]

Additional Information:

My Mom, who is 87 yrs. old and has dementia/early Alzheimer’s, is living with me.  She owns a home, which my daughter and her family are living in currently.  What can I do to prevent the seizure by Medicaid of her home when she has to enter a nursing home, if anything? What are my options with this?

ATTORNEY ANSWER:

Medicaid will not seize a home if your mother enters a nursing and is approved for Medicaid. A home is considered a non-countable asset, so as long as she has met the other financial requirements, Medicaid will approve your mother. A lien will be placed on the house during your mother’s lifetime and enforced during the probate process.

[Read more...]

Additional Information:

My Father died intestate & my surviving 93 year old mother refuses to discuss a will so she will also die intestate. I would like to add my sister’s name to the deed on my Mother’s house so the house will be owned as Joint Tenants with rights of survivorship. This way when my Mother dies, we can avoid probate. Right now the deed has both my deceased Father & living Mother as owners. How do I go about getting my sister on the deed as a Joint tenant?

ATTORNEY ANSWER:

You need to take your mother to see an elder law attorney who can explain to her the ramifications of not having a Last Will and Testament. If it is her wish to have the house go to your sister, that will not be accomplished by having the house go through probate. Under the laws of intestacy, her children will inherit her property equally. If one of her children has creditor issues, the creditor will be able to attach the house after her death. [Read more...]

Additional Information:

My dad broke his hip at his house, there are just too many stairs for him to safely navigate.  We sold my dad’s house; used the money as a downpayment on our new ranch style house for myself, my wife and my dad. We went though an Massachusetts eldercare lawyer who created the deed giving my dad a life estate and my wife and myself ownership after my father’s death. My name is the only name on the mortgage. My Dad lived with us for 1 year and 4 months; his dementia has really increased and we had to put him in a nursing home. We are applying him for Medicaid. Any ideas on how Medicaid will treat the life estate?

ATTORNEY ANSWER:

Your father purchased a life estate in your home.  The question is whether MassHealth will treat this as a disqualifying transfer.  I will assume that he paid fair market value for the life estate.  (If he had paid more, he would have been making a gift to you and your wife.)  MassHealth will scrutinize this transaction.  The rule of thumb is that the elder would have had to live in the home for at least a year for MassHealth to consider this a purchase for fair market value.  MassHealth treats an ownership in a residence as a non-countable asset.

[Read more...]

Additional Information:

My friend had a will and then wanted changes.  She had the lawyer draft the changes but she never signed the changes.  Does the lawyer refer to the original will or can the changes be added without her signature?

ATTORNEY ANSWER:

Your friend’s Last Will and Testament will be the controlling document. The court will not honor an unsigned Codicil.

Margaret L. Cross-Beliveau, Esq., LL.M.

Legal Disclaimer: [Read more...]

Additional Information:

I am in the position where I have to decide whether to put my father in a Massachusetts nursing home or not. I have found a facility in Greater Boston area that seems appropriate, it costs $4,500 per month. My brother has said he would like to keep him out of a nursing home.  Could my father pay my brother the $4,500 per month instead of paying it into a nursing home? What are the legal/tax implications if any, and can we do this? It would be great solution for all as my brother has had some financial difficulties over the last few years, and it would keep my father out of the nursing home.

ATTORNEY ANSWER:

The answer is yes, your brother can be paid but with some very big restrictions.  In Massachusetts, MassHealth assumes that all work a child does for a parent is from familial love.  All payments to a child are counted as disqualifying transfers unless the parent and child have entered into a valid contract for services rendered called a personal care contract.  The contract should be executed before the payments have begun.  [Read more...]

Additional Information:

My grandmother and I live in Danvers, MA.  We are co-owners of a mutual fund account. She purchased it around March of 2005 and thought she had named me as co-owner, but truly named me as beneficiary. We caught the mistake and had my name added as joint owner about 2.5 years ago. She is currently in assisted living but may require nursing care in the future. She tells me to take the money (as my family is in financial need), but my father tells me to leave it because if she were to go into a nursing home under Medicaid, the state would come back for it. If I am co-owner, can I use that money without needing to pay it back should she go on Medicaid?

ATTORNEY ANSWER:

The down and dirty answer is that no, you should not be spending the money on yourself.

When an applicant applies for Medicaid, the applicant must report any gifts made within the past 5 years. Once the applicant is “otherwise eligible” for MassHealth, MassHealth imposes a disqualification period for the gift. For a single person, this means less than $2,000 of liquid assets. [Read more...]

Additional Information:

Dad died without a will. He and our mother are both on the deed to the house, he continued to live in and were divorced a few years ago. What will happen to the house, will it go to her automatically? And would we have to go into probate? (not really sure what that means)

ATTORNEY ANSWER:

You should first review the divorce decree. If the decree awards the property to your father, he owned it in his own name at the time of his death and the house will have to be probated. If the decree awarded it equally between your parents, the divorce would have broken the joint tenancy into tenant in common interest and half of the house would have to be probated. Both of your parents should have been provided with a copy of the decree.

When a person dies with property in his own name without a will, the property passes through the state’s intestate succession laws. I am assuming that your father died a resident of Massachusetts. As your father died a single person, your mother would not inherit property under that statute. You should consult an estate and probate attorney familiar with the laws of your father’s domicile. You should provide the attorney with a copy of the divorce decree.

[Read more...]

Additional Information:

There are 3 equal beneficiaries to the trust.  One of the beneficiaries is wanting to sell and the other 2 do not want to.  At any point can the house be sold or rented without all 3 in agreement?  Thank you.

ATTORNEY ANSWER:

In order to ascertain what the beneficiaries’ rights are under the trust agreement, you must first look at the trust agreement. Typically, the beneficiaries cannot demand from the Trustee that the trust assets are to be sold. The grantor of the trust would have to have been written into the trust document.

The terms of the trust govern all aspects on the ownership of the property. If the terms of the trust are unclear, you can petition a court for instructions, but that is a costly and time comsuming process. You may wish to consult with a trust attorney in your area.

[Read more...]

ADDITIONAL INFORMATION:

My grandfather, a PA resident, passed away earlier this month and left no will. He and my grandmother (still living) held accounts jointly as well as separately. Because he died intestate, his personal accounts will be divided between my grandmother and the three children. The children do not want the money and would rather let my grandmother keep it. If they each file a disclaimer, does the money go to my grandmother or to myself and my cousins? If transferred to my grandmother, is this amount free of Federal and State estate tax? If not, is it subject to gift tax if it exceeds the annual limit? Even if it is subject to inheritance tax, would disclaimer still be an option to avoid the gift tax of a subsequent transfer to my grandmother?

ATTORNEY ANSWER:
The legal effect of a Disclaimer is that the person disclaiming is deemed to have predeceased the decedent. According to 20 Pa. CS. section 2102 § 2102. Share of surviving spouse. The intestate share of a decedent’s surviving spouse is:

(1) If there is no surviving issue or parent of the decedent, the entire intestate estate.
[Read more...]

ADDITIONAL INFORMATION:

Can the executor of an estate bill on a flat fee hourly basis or does the executor charge for their services according to a percentage of the value of the estate?

ATTORNEY ANSWER:

The Executor of the estate in Massachusetts may be paid reasonable compensation for the type of work he preformed. The Executor must list the payment to himself in the Accountings. If you disagree with the amount the Executor has paid himself, you will have the opportunity to object.

[Read more...]

ADDITIONAL INFORMATION:

Social Security will now start with-holding back child support from payment made to nursing home. He has no income and no way to pay the difference.

ATTORNEY ANSWER:

I am going to assume from your question that the nursing home resident is receiving Mediciad benefits. For patients who are on Medicaid in the nursing home, the nursing home is paid partially by the resident through the resident’s income and Medicaid pays the balance. The person who is representing the resident (health care agent/power of attorney) should contact the state’s Medicaid office to notify the office that there has been a change in the resident’s income.

[Read more...]

ADDITIONAL INFORMATION:

My mom died and my brother was the “executor” of the estate and his name was on the deed of her main house.  Now there was no will but all of her assets and bills were taken care of by my brother. This is in Massachusetts, but she had a vacation home in NH. I was told we would have put that home through a separate probate or wait a certain number of years and it automatically is inherited by her children. Then we could have my brothers and sister sign that they don’t want it and put it in my name. If we really don’t have to go through probate, how long do we have to wait until it is automatically inherited and we can put it in my name?

ATTORNEY ANSWER:

The probate process must be endured for any asset that your mother owned in her name alone. No amount of time can take away the probate requirement.   In New Hampshire, the creditors of your mother’s estate have two years to file a claim against your mother’s estate for an unopened probate. Had your mother’s estate not be probated, the creditor could petition the court to begin the probate process.
[Read more...]

ADDITIONAL INFORMATION:

I am in a dispute over a house between myself and my mother.  We both own the house we need to settle in court.  How can we get a hearing and how long does it take to get one?

ATTORNEY ANSWER:

First, I do not know that Probate Court is the appropriate venue for your hearing. If all parties who own the property are alive, Land Court may be the correct forum.   Secondly, a hearing requires that once you apply to the court, notice must be provided to the other party. There are all sorts of procedural issues that you will encounter.  While you can represent yourself pro se, I would suggest consulting an attorney.

[Read more...]

ADDITIONAL INFORMATION:

ATTORNEY ANSWER:

If your mother died without a will, she died “intestate”. Each state has its own statute on how property passes to family members and in what percentages under intestate succession. You did not post where your mother was a resident at her death. The laws of the resident state would control.   Any property that your mother owned in her own name alone at her death must go through a probate process. You father cannot automatically claim possession of them without putting the property through the probate process. You may or may not have rights to your mother’s probate estate. I suggest that you consult a probate attorney in order to determine your rights.

[Read more...]

ADDITIONAL INFORMATION:

I just needed my will updated so that my daughter instead of brother in law is the executor of the will. What is a reasonable fee?

ATTORNEY ANSWER:

Each attorney sets his own fee schedule and some attorneys do not charge for an initial meeting. Also, attorney fees vary according to the attorney’s experience as well as the location of the attorney within the state.   Usually the attorney who originally drafted the documents charges a minimal fee to update this documents. However, if you have moved from another state, you would need to meet with a Massachusetts attorney.

[Read more...]

Additional  Infgormation:

My sister resides in an estate property. My mom passed about 2 1/2 years ago & I have repeatedly asked my sister to pay rent as she is living there for free. She has waffled back & forth repeatedly as to her desires to purchase the house. When I attempted to put it on the market, she removed the lockbox & denies me access to the property. Now, with pressure put upon her, she has offered a ridiculously low price for the property. Also, how would I get an appraiser into the property?

ATTORNEY ANSWER:

In order to answer your questions, we would first need to look at the provisions of your mother’s will. Did she instruct that the real estate be sold? If not, did she state that her estate should be divide equally among her beneficiaries? In Massachusetts, real estate ownership vests immediately upon death in the beneficiaries subject to divestiture. Therefore it is the beneficiaries’ right to use the property provided there is not a creditor lurking out there with a claim against the property.

If the will stated the estate was to be transferred to the children equally, you have the same rights as your sister to use the property and there is no right to restrict her use or charge rent. It also means that you are a co-owner of the property. You may force the sale of the home by filing a petition to partition the property.  Please keep in mind that this is all conjecture as I have not read your mother’s will. I would be happy to review your mother’s will and discuss your options with you. There is no charge for an initial conference.

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Additional Information:

What does the lawyer who stores your last will required to do upon your death?

ATTORNEY ANSWER:

An attorney can take no legal steps to probate your will unless directed by the executor who is named in the will. Upon your death, your executor may request your will from the attorney and proceed with any probate filings himself, retain your original attorney to open the probate, or retain his own attorney to open the probate.  Also, in Massachusetts, there is a procedure where a copy of a lost will can be submitted to the Probate Court in lieu of the original.

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I am trustee of my fathers estate. I have attempted to communicate with one of the beneficiaries who was left a designated amount but she refuses to reply to my letters. I have been told by a family member that she does not want the money but as stated, I have received no replies to my letters.

ATTORNEY ANSWER:

A beneficiary is always free to refuse to accept benefits under a trust or a will. You should ask the beneficiary to execute what is called a disclaimer. Once a beneficiary disclaims her interest, she is treated as predeceasing the Donor of the trust and you are free to distribute the bequest to the next beneficiary in line. The beneficiary may be willing to sign a disclaimer as she does not wish to accept the bequest. The disclaimer would protect you as Trustee from a breach of a fiduciary duty by distributing the assets to a different beneficiary.
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I told him that I didn’t think it’s a good idea, but he refuses to listen. Any suggestions of what to tell my dad.

ATTORNEY ANSWER:

I suggest that you and your father consult with an elder law attorney in your area. (You can visit the website for the National Academy of Elder Law Attorneys’ website to obtain elder law attorneys in your area.)  By transferring the home to you ten years ago, the disqualification period for long term care planning has expired and thus the transfer will not be held against him in the event he enters a nursing home. He apparently has developed concerns over your outright ownership of the property. An elder law attorney may be able to broker a compromise between you. One option that may be possible is that you could create a trust for your father and transfer the home to the trust.

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Rev. Trust was setup by WESI Family of Comanies/American Family Legal Centers now called the Estate Services Group/Michael Fisher. He is being sued by the other party claiming to represent our trust: United Integrity Group. They transferred our trust to Puritan Life Insurance Services. Michael Fisher claims he still handles the trust. Originally when we opened the trust for aprox $900, we were told we would have lifetime free changes annually, and reviews. We are now told there is a $150 charge for changes. Our income is reduced, and I am currently working for my spouse and seeking employment. Should we takeover handling our trust ourselves? Do we need to file any legal papers to do so? I am so overwhelmed with this mess. Thank you!

ATTORNEY ANSWER:
A revocable trust is a trust that can be amended or revoked by the grantor of the trust at any time. Typically the grantor of the revocable trust also serves as the Trustee and a successor Trustee is named within the document. If you are unhappy with the service which is being provided to you, you have the option to amend the trust and name new trustees. No attorney or corporation has ownership over your trust.

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Moved into this apartment when I was pregnant, and found out that there are bedbugs in the apartment. Told the landlord and they exterminated my bedroom. After the extermination, still getting bitten, reported again and they exterminated again and still seeing bedbugs not just in the bedroom but in other parts of the apartment. We were told that they will continue to exterminate until they are gone, but how long will that take? We have a new born baby and very concern for his health in this situation. Do we have the right to break the lease or move into another unit that does not have bedbugs? Please help. Thank you!

ATTORNEY ANSWER:

Sorry to hear (especially since you have a newborn baby). My firm through our litigation attorney is currently handling a bed bug case for a client. Unfortunately, I keep hearing about more such cases. I recommend you hire a landlord tenant attorney to represent you. The attorney will prepare and send a letter to the landlord citing the legalease of your case. Based on the facts of your case, the attorney may recomend that you move out and claim constructive eviction. I hope the matter is resolved soon.

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My father in law wants to transfer the house to my husband now due to health issues. My questions is do my husband and I have to get rid of our credit card debt before the transfer can take place. We aren’t purchasing the house it’s just being transferred now.

ATTORNEY ANSWER:

Your father-in-law should consult with an elder law attorney before making the contemplated property transfer. Also: You should make sure you can manage your credit card debt if your father-in-law is going to transfer his property to you. If you default on your credit card debt, your credit card company could bring suit against you to recover the debt. The property you received from your father-in-law could be attached if your credit card company obtained a judgment against you. [Read more...]

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ATTORNEY ANSWER:

Is there a contract between X and Y for the respective work (there should have been one)? If so, what does the contract say? This is a matter between two businesses. Consequently, both parties probably will be considered to be informed and savy with respect business dealings between them. I think X has a tough case. I don’t think Y’s actions rise to the level of duress. Y did not force X to sign the deed. X did not have to sign the deed. X could have come up with money (through a loan or otherwise) to pay Y.

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If I start an LLC, and the only employee currently is me, should I file it in MA or a different state?

ATTORNEY ANSWER:

You would not be an employee of your LLC. Instead, you would be a member of your LLC. You would report your LLC’s activity on Schedule C with IRS Form 1040 (assuming you will be the sole owner of the entity). All of your gross profit would be subject to self employment tax. If your are going to do business (as an operarting business) in Massachusetts, it makes sense for you to establish your business in Massachusetts. You may want to consider establishing your business as an S corporation (assuming you are a US citizen). By doing so, you would have to prepare and file annually IRS Form 1120S. You would have to pay Massachusetts annually $456. However, you would be able to massage (minimize) the self employment tax. You may want to consult with a combination attorney/CPA.

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Can the executor of an estate bill on a flat fee hourly basis or does the executor charge for their services according to a percentage of the value of the estate?

ATTORNEY ANSWER:

In Massachusetts (unlike in Florida for example), an executor cannot charge for his/her services according to a percentage of the value of the estate. Instead, an executor should charge a reasonable hourly fee for his/her services performed as such. The executor’s fee is disclosed on the probate court account and ultimately may be subject to probate court approval.

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Florida attorney prepared will and trust for Florida resident. Client subsequently moved to North Carolina. Is there a statute permitting Florida attorney to file will with North Carolina court. Second marriage surviving spouse is not personal representative.

ATTORNEY ANSWER:

If the decedent moved from Florida to North Carolina and died a North Carolina resident, then the decedent’s Florida will (assuming the decedent did not execute a subsequent North Carolina will) should be filed with the applicable North Carolina probate court.

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