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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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North Shore Winter is beautiful but when the roads and highways are snow covered it can also be dangerous.  Plows, sanders and salt trucks work to keep the ways clear but conditions and traffic from Route 95, 128, and Route 1, along with the feeder roads can become treacherous for automobiles during the winter months. For example, recently Massachusetts was hit with a couple of Nor’easters resulting in significant snow and ice accumulations.  According to CBS Boston, a massive car accident on Route 128 involving 55 vehicles occurred around 6:15 a.m. between Exits 39 and 40 in Wakefield, Massachusetts.  The highway was shut down and “eight people were transported to the hospital with… injuries”.  For those injured, a question arises as to damages and causation and compensation. Damages refer to the amount of money you may be entitled to for compensation by someone who has caused you harm as a result of their wrongdoing or negligence.  Massachusetts is a no-fault insurance state.  Under the no fault provisions, among other things, an injured person from a car accident must seek payment from his or her own insurance company for PIP (personal injury protection) for payment of medical bills. Generally, one may not claim damages for economic damages, against another’s insurance company, unless the reasonable medical bills exceed $2,000.00.

commerce-acts-books-477966-mThere is also the issue of different types of Damages. Chiefly they fall into two categories: Economic and Non-Economic. Damages for pain and suffering fall into the non-economic category. Here are some examples of the types of harm covered under economic and non-economic damages:

Economic damages:

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Ownership and title to real property in Massachusetts goes back to the Mayflower Compact. As roads, ways and cart paths were created throughout the Northshore, Middlesex County and other counties, easements to and from land were created for access and passage. An easement may exist over land, privately owned waterways or in the air. An easement may be created various ways: expressly by written contract, in a grant or deed, shown on a record plan, by use over a period of years; or they may be implied or arise due to necessity. Once created, does the easement last forever or may it be lost or extinguished?  The valid creation and the possible extinguishment of an easement is determined by Massachusetts statutes, case law and common law.

commerce-acts-books-477966-mWhen an easement is created on real property in Massachusetts there is a “dominant estate”, meaning the land that is benefitted by the easement. There is also a “servient estate”, or the land that is burdened by the easement.  For example if you have an easement that allows you onto your neighbor’s yard or driveway to access your property, your land is the dominant estate and your neighbor’s the servient estate.  Once an easement exists there are several methods that the burdened estate can free itself.

An easement can be extinguished by adverse use or prescription over a period of 20 years or more.  Massachusetts case law has confirmed extinguishment if the servient estate demonstrates “it, or its predecessors, had ‘used the way in a manner so inconsistent with the easement that it … [worked] an extinguishment of it after the lapse of twenty years.”’  Lemieux v. Rex Leather Finishing Corp., 7 Mass. App. Ct. 417, 423 (1979) (quoting Patterson v. Simonds, 324 Mass. 344, 352 (1949)). ‘“[A]n easement is extinguished by a use of the servient tenement … if, and only if …  (a) the use is adverse as to the owner of the easement and (b) the adverse use is, for the period of prescription, continuous and uninterrupted.”’ Yagjian v. O’Brien, 19 Mass. App. Ct. 733, 737 (1985) (quoting Restatement of Property § 504 (1944)).  However, “Mere non-use [of an easement] no matter how long, will not work an abandonment.” Desotell v. Szczygiel, 388 Mass. 153, 158-159 (1958).  A burden upon the easement must be inconsistent and irreconcilable with the dominant estate holder’s use for that burden to work as extinguishment of the easement.  Id. at 733.

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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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Massachusetts federal and state courts have become a hub of mass tort actions. Mass tort actions are very different from typical North Shore, Lynnfield, Lynn and Saugus torts, accidents and injury law. Mass torts require massive resources and involve high-stakes but what exactly is a mass tort? Many people understand that a tort is a wrongful act that causes harm or injury to a person and exposes the wrongdoer to civil liability. Typically, tort actions involve one plaintiff and one defendant. For example, imagine that you are on your way home from work on Route 128 and the traffic comes to a sudden grinding halt. You come to a complete stop and the car following you slams into the back of your car. This is a classic tort action involving a wrongful act, you as the single plaintiff and the other driver as the defendant. A mass tort is different because where it also involves a single wrongful act; the wrongful act causes harm or injury to numerous victims.

commerce-acts-books-477966-mA majority of the mass tort actions in the Commonwealth are centralized in the Federal District Court District of Massachusetts; however some prominent mass torts are in the state civil courts. Just one mass tort action can involve numerous cases. For example, over 3,000 claims related to a mass tort action involving the dialysis products GranuFlo and NaturaLyte manufactured by Fresenius were filed in the Middlesex County Superior Court in Woburn. See In re: Consolidated Fresenius Cases, CV2013-03400. A settlement for the Fresenius cases in the amount of $250 million was reached earlier this year.

While many mass tort actions involve injuries caused by defective consumer products, specifically pharmaceutical drugs or medical devices, mass torts can also arise from large scale disasters (such as an oil spill) or toxic torts (such as contaminated groundwater). Mass tort actions allow a large number of plaintiffs to sue a common defendant in a consolidated action if their cases arise from a common cause.

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It has been a red-hot residential real estate market all over Massachusetts. Homes in good locations that are updated and priced fairly are going under contract quickly. The weather may be turning colder as we head into 2017 but the sale prices of good housing throughout the North Shore, including Lynnfield, Saugus, Danvers, Lynn and Wakefield have stayed firm.  As New Englanders know, after a snow-filled winter, a warm spring is always welcome.  Traditionally the housing market heats up once the snow begins to melt. However, with the small inventory of available homes today, potential buyers may wish to keep close watch on new listings during the winter too. If 2017 is the year you will buy your house, be mindful that there are many complications involved with purchasing a home, from start to closing. An experienced and knowledgeable real estate attorney to represent your interests only, throughout the process, can be valuable. Actually, is a lawyer required for closing?

commerce-acts-books-477966-mMassachusetts is one of the few states in the country that is considered an “attorney state” for residential real estate transactions. That means that home buyers and sellers in Massachusetts typically have an attorney represent them (unlike other states where most matters are handled by a real estate agent and a title company). An attorney’s involvement is required by G.L. c. 221, s. 46A, which prohibits the unauthorized practice of law by non-lawyers.

The MA Real Estate bar Association (REBA) takes the position that real estate closings conducted by non-attorneys, often called “witness-only closings” or “notary closings”, are not in the best interest of the consumer or buyer.  “Decisions made by home buyers and other mortgage borrowers are particularly susceptible of improper influence, and even predatory behavior, by individuals who are unqualified to give legal advice.” REBA strongly recommends that the Buyer and Seller each have their own attorney in addition to the attorney conducting the closing, to prevent an issue of conflict and to assure that each side is adequately represented.

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Tax planning is an important component of an overall estate plan. Depending on the type and the value of assets owned, the services of an attorney and a tax specialist may be appropriate.  Throughout the Northshore of Massachusetts, including Saugus, Danvers, Wakefield and Lynnfield, it may save significant money and gifts for heirs if one works with an experienced estate planning lawyer. Any number of life events may provide a good time to trigger setting up an appointment to review your estate and discuss options – marriage, divorce, an addition to the family, health issues or simply natural aging.

commerce-acts-books-477966-mOne example of a tax planning issue to consider is the taxable basis at death of assets acquired during one’s lifetime, such as stocks, a home and real estate. A properly prepared estate plan may enable the heirs to use a legal step-up in basis so that the starting point for valuation of an asset will be the value at the date of death – instead of the value at acquisition or some other starting value.

What is a step-up in basis and how does it work?

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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]