Articles Posted in Probate Estate

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The average number of years that a person may expect to live has substantially increased over the past 25 years. Also, the life expectancy of a person now is 25 years longer than it was 100 years ago. Decreased infant mortality, improved living conditions, reductions in poverty levels and gains in medical treatment have resulted in increased longevity for humankind, benefiting a broad spectrum of  people of all race, gender and ethnicity. https://www.brookings.edu/research/the-changing-landscape-of-american-life-expectancy/.

commerce-acts-books-477966-mReviewing records starting with the 20th century discloses that the world is seeing fewer deaths at older and older ages. The National Institute on Aging report puts this in stark terms: “The 85-and-over population is projected to increase 351 percent between 2010 and 2050, compared to a 188 percent increase for the population aged 65 or older and a 22 percent increase for the population under age 65.”

According to Thomas Perls, a geriatrician at Boston Medical Center and professor at Boston University School of Medicine, “Getting to about 110 is really approaching the limit of the human lifespan,” and the oldest documented human life is 120 years. http://www.businessinsider.com/how-has-life-expectancy-changed-throughout-history-2015-6

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The importance of estate planning and the benefits of preparing a Will have been discussed in our previous blogs. Proper estate planning and a carefully drafted Will can ensure that your last wishes are carried out as you intend, wish and instruct. But let’s not kid ourselves, facing one’s mortality is hard. Many of us find it difficult to think of the end of our life and estate planning is often on the bottom of the “to do” list. A recent article from Caring.com reported that nearly six out of ten Americans do not have estate planning documents. This is true across all socio-economic classes.  If you are part of that nearly 60% group of Americans without a Will, what happens to your possessions when you pass away? In Massachusetts, if you pass away without a Will, this is commonly known as dying “intestate”. Any assets or property you own at death will be probated in the county you resided in at date of death (if you lived in Essex County your estate will be probated as intestate in the Essex County Probate Court, if you lived in Middlesex County then it would be in the Middlesex County Probate Court and so on). Distribution of your property would be determined by statute and given to your closest legal heir(s) in a proportion as determined by Massachusetts intestacy law.

commerce-acts-books-477966-mThe Massachusetts intestacy statute is contained in the Massachusetts Uniform Probate Code (the “MUPC”).[1] The MUPC sets forth how your property will be distributed according to the makeup of your surviving family members. Many people believe that the Massachusetts intestacy statute simply divides the property in an estate equally among the surviving relatives, but the determination of “who gets what” is more complicated than that.

If the deceased was married, the portion of the decedent’s estate the decedent’s surviving spouse is entitled to depends on whether or not there are or were children; and in some circumstances, further affected by whether or not the decedent has a surviving parent. If there are no living children and no surviving parents of the deceased, a surviving spouse will get the entire estate. There is a second situation where the surviving spouse gets the entire estate: if all of the children of the decedent are also children of the surviving spouse and the surviving spouse has no other living descendants that are not descendants of the decedent. It gets even more complicated depending on whether or not there is surviving spouse, parents, or children or brothers and sisters of the deceased.  Here are a couple of examples:

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Testamentary Capacity is a legal term “used to describe a person’s legal and mental ability to make or alter a valid Will”.  In order to create a valid and binding Will or Codicil, you must have the requisite testamentary capacity. Throughout the Commonwealth of Massachusetts, including Essex County, Middlesex County or any of the towns and cities here in MA, there are two initial hurdles one must meet to have the testamentary capacity to make a valid Will: 1. be of sufficient age – which is generally 18; and 2. meet the mental capacity threshold; which means to have the ability to know the nature and extent of property, the natural objects of one’s property, the disposition that the Will is making and the ability to connect all of these elements together to form a coherent plan.

commerce-acts-books-477966-mAnother way to say it is one must have the mental ability to understand the nature and purpose of making a Will, have a general idea of what you own and what assets you have, and know who are members of your immediate family or other natural objects of your bounty.

Testamentary capacity requires that you have the ability to understand and to be mindful of the type of property and assets you own as well as who may inherit your property whether you have a Will or do not have a Will.  You are required to be of sound mind and free from any disease or weakness which could influence the way that you choose to dispose of your property. You are also required to have the ability at the time of the execution of the Will to comprehend the nature of the act of making a Will.  You must understand what you are doing by signing the Will.

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With a little support, adult individuals with intellectual disabilities or mental illnesses often lead independent and fulfilling lives. For example, the Massachusetts Vocational Rehabilitation Services program, with offices throughout the Commonwealth, including in Lawrence, Lowell, Malden, Salem and Somerville on the Northshore, offers assistance to individuals with disabilities to obtain and maintain employment. However, some disabled individuals require additional support in their personal lives when they are unable to make certain decisions on their own behalf. In such situations, a guardianship may be appropriate.

commerce-acts-books-477966-mGuardianship is a formal proceeding in the Probate and Family Court that grants the court appointed guardian legal authority to care for and make decisions on behalf of an incapacitated person. An incapacitated person is defined as “an individual for reasons other than advanced age or minority, has a clinically diagnosed condition that results in an inability to receive and evaluate information or make or communicate decisions to such an extent that the individual lacks the ability to meet essential requirements for physical health, safety, or self-care, even with appropriate technological assistance.” MGLC 190B, §5-101(9). The guardian may be granted plenary or complete authority to make decisions on behalf of the incapacitated person; however, a limited guardianship that only grants the guardian decision making authority where the incapacitated adult cannot make her own effective decisions, is favored. The purpose of a guardianship is to promote the safety and well-being of an incapacitated individual, not to take away an incapacitated person’s independence.

The Probate and Family Court will tailor the guardianship to the incapacitated person’s specific needs in order to promote self-reliance. The question becomes, “what is in the best interest of the incapacitated person?” To answer this question, the court will consider evidence and arguments not only from the person seeking the guardianship, but also from the incapacitated person herself and any other interested person. Last year, in the matter of Guardianship of B.V.G., the Supreme Judicial Court of Massachusetts provided guidance as to who is considered an “interested person.”

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If you read this blog on a regular basis (who doesn’t!!) you may recall an article entry from a year ago about challenges one can face when contesting a Will.  In that entry we cautioned that a challenger to a probate estate can be held responsible for the other parties’ legal fees for an unsuccessful challenge.  Whether you are from Lynn, Saugus, Lynnfield, Peabody, Salem and seeking redress in the Essex Probate Court, or Wakefield, Reading, North Reading or elsewhere in Middlesex County; it is important to know your rights and what limitations and pitfalls could await you in contesting a Will or appointment of a personal representative.

commerce-acts-books-477966-mA recent Probate Court decision illustrates how tricky (and costly) an unsuccessful challenge in a probate court can be.  Here’s what went down in Giroux v. Laranjo, et al., Lawyers Weekly No. 15-007-16.

Ms. Giroux was the attorney in fact for the decedent during his life under a power of attorney and after his death was the estate’s personal representative.  While the decedent was living, Ms. Giroux amended the distribution percentages in the decedent’s realty trust so that her beneficial interest increased and the other beneficiaries’ interests decreased.  She did this under her power as attorney in fact for the principal.  This was apparently what the decedent wanted.

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The North Shore has a number of outstanding facilities to assist in the care and education of special needs minors. For example, the Northshore Education Consortium, with facilities in Beverly and Peabody, is one of the largest provider of special education programs for children with emotional, behavioral or developmental disabilities in Massachusetts. See https://www.nsedu.org/

commerce-acts-books-477966-mFor many parents, their top priority when planning for the future is to ensure that their children will be cared and provided for. The issues may be complicated when there is a child with disabilities as part of the family. Planning for children with disabilities presents unique challenges and considerations. The two main concerns presented by gifting or leaving funds directly to a disabled child are: first, a child with disabilities may be unable to appropriately manage funds themselves; and second, such a gift or inheritance may cause the child to lose important government benefits. A properly drafted Special Needs Trust, also known as a Supplemental Needs Trust, can address these issues and ensure that a disabled child is cared for and financially protected.

Perhaps the main benefit of a Special Needs Trust is that assets held by the trust for the disabled individual are not considered “countable assets” for the purposes of means-tested government benefits. Means-tested government benefits include Supplemental Security Income (SSI), Medicaid (also known as MassHealth in the Commonwealth), and certain housing assistance programs. For example, in order to receive SSI an individual must not have countable assets worth more than a total of $2,000.00.[1]

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Upon the death of a family member, a question often arises as to who is entitled to receive the assets of the deceased. Whether there is a Will or not, family and friends may squabble over the property, and descent and distribution of estate gifts may be the subject of disagreement. On the North Shore of Massachusetts there are probate courts in Salem and Lawrence for Essex County, Cambridge for Middlesex County and Boston for Suffolk County.  Probate of the estate and any disagreement over the estate will likely be handled in the Probate Court for the county where the deceased resided at date of death.

commerce-acts-books-477966-mThe deceased may have expressed his or her wishes for the disposition of property by making a Will and specifying who gets what. The assets may be divided up depending on many factors, including value, type of property (real estate, bank accounts, stocks, cars, personal property or intangible property), or perhaps on the number of heirs, closeness of family, financial need of family members, or just the whim of the decedent.  If no Will is found then the property is divided according to law or state statute, and will generally follow lines of consanguinity (family bloodlines or relatives).

With or without a Will, surviving family, friends and institutions such as charities or religious groups, may seek to claim an interest in the assets of the deceased. Disputes as to where the property and assets go may arise from promises made during the lifetime of the deceased, expectations of presumed recipients of the gift(s), the mental capacity of the deceased or possibly from alleged failure of the fiduciary of the estate to properly carry out the handling of the estate or assets.

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Contesting the terms and provisions of a Will or the mental capacity of the testator can be difficult in Massachusetts. The burden of proof lies with the party raising the challenge and that burden is often hard to overcome.  The probate court judges in Essex County and Middlesex County and throughout Massachusetts are experienced and knowledgeable. They will expect facts and require proof.  In addition, if the contesting party cannot prove its case it could be subject to an award of attorney’s fees to the other side.  While this sounds scary, if you have a reasonable or good faith basis to challenge a Will, you are entitled to make your case.   Before proceeding you should first consider whether or not the Will contains an in terrorem clause.

An in terrorem clause, or “no-contest clause” is:

commerce-acts-books-477966-mfrom Latin for “in fear,” a provision in a will which threatens that if anyone challenges the legality of the will or any part of it, then that person will be cut off or given only a dollar, instead of getting the full gift provided in the will. The clause is intended to discourage beneficiaries from causing a legal ruckus after the will writer is gone. However, if the will is challenged and found to be invalid (due to lack of mental capacity, undue influence or failure to have it properly executed), then such a clause also fails. So a prospective challenger takes his/her chances. TFD, copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill.

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Under Massachusetts law, MassHealth has an interest in the estate of a decedent that received recoverable benefits during his/her lifetime.

commerce-acts-books-477966-mAny time you petition to probate the estate of a deceased family member, loved one, or friend in Massachusetts, you must send a copy of the petition to the Massachusetts Division of Medical Assistance (“DMA”).  If you hire a probate lawyer to help, the attorney will file a petition and take care of this detail but if you choose to probate an estate without legal counsel, notice to the DMA is required.   The Petition for the estate must be filed in the county where the decedent resided at the date of death (Essex County, Middlesex County, etc.).  The petition must include a sworn statement that copies of the petition and death certificate have been sent to the DMA by certified mailM.G.L. c. 118E, s. 32.  The purpose for the notice is to allow MassHealth its right to pursue recovery of any medical assistance or benefits the decedent received from MassHealth.  If benefits were provided to a decedent while alive for which the DMA is authorized to recover, it can (and likely will) pursue recovery from the Estate.

A copy of the petition and a death certificate of the decedent must be sent to the DMA, for both formal or informal probate, by certified mail M.G.L. c. 190B s. 3-403(g).  In a formal probate, the petitioner must give notice by certified mail along with a copy of the petition and death certificate.  In an informal probate, M.G.L. c. 190B s. 3-306(g) requires the petitioner to give written notice 7 days prior to filing the petition.

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Planning for the future, after you are gone, is hard and can be unpleasant.  People rationalize putting off estate planning by thinking “I’m going to live forever” or, “I’m healthy, it won’t happen to me”, or “I don’t want to think about it”.  The problem is, you never know and can’t predict when an accident will happen or possible serious illness will strike.  Speaking with an experienced North Shore attorney about estate planning can put your mind at ease and help you understand your options.

Whether you are single, living with a significant other, newly commerce-acts-books-477966-mmarried, or have been married for 30+ years or have a blended family, estate planning is important.  A basic Estate Plan may include a Will, Health Care Proxy, Living Will and perhaps also a Power of Attorney and a Trust, depending upon your circumstances.

As we mature and take on more adult responsibilities, have relationships, start families, try hang gliding (ha!), it makes sense to think through what happens to your stuff if the unexpected occurs.  Preparing an Estate Plan can also help if you are seriously injured in a car accident.