Tag Archives: Estate Planning

Estate Planning Essentials: Your Age Doesn’t Matter

 

The current pace of our lives makes finding time to develop an Estate Plan more and more difficult. Please find below some moves you can make which are not complicated, or expensive, but which can improve your position, and let you sleep at night.

  1. Create or Update Your Will or Revocable Trust

    These documents are the cornerstone of your Estate Plan. They insure that your assets will be distributed exactly as you would like. Failure to keep these documents current may result in disinheritance or financial hardship for loved ones who depend on you.


  2. Review Beneficiary Designations. When you established life insurance or retirement plans, you were asked to name beneficiaries of these accounts who will receive the assets upon your death. It is important to review these designations regularly to ensure that your assets pass to the appropriate loved ones.
  3. Create or Update Your Health Care Proxy and Living Will You need a health care proxy to appoint your spouse, a trusted friend or family member to make medical decisions on your behalf in the event you are unable to make those decisions yourself. Your health care agent will work with your doctors and other health care providers to make sure you get the medical care which is best for you. A living will is a type of advance directive that gives you the opportunity to formalize your wishes as to prolonged health care in the event that your condition is terminal. NOTE: Living Wills give direction but are not legally binding
  4. Create a Durable Power of Attorney. Regardless of the size of your estate or your family circumstances, you should have a durable power of attorney. You may appoint your spouse, a trusted family member or friend to handle all of your financial affairs on your behalf in the event you are not able to do so, yourself.
  5. Establish Guardianships for Minor Children. Have you considered who would take care of your minor children in the event of the untimely passing of you and your spouse? If you do not finalize your wishes in your Will, a court will decide who will care for your children. Do not leave your children’s well-being in the hands of a court. Appoint a Guardian for you minor children in your Will.
  6. Encourage Your Adult Children to Create an Estate Plan. Whether your son or daughter is going off to college or beginning a career, encourage your child to set up an Estate Plan. If your adult child requires medical attention, you have no legal right to their medical records, nor can you participate in health care decision, without a duly executed health care proxy.
  7. Encourage Your Aging Parents to Create, or Update, Their Estate Plans. It becomes increasingly more difficult to discuss finances and health care decisions with your parents as they age. Encourage your parents to put an Estate Plans in place, or review their existing Estate Plans.

Should I draft a Will or should I be placing my assets in a Trust?

When it comes time for you to devise your assets, you may be asking yourself, “Should I draft a Will or should I be placing my assets in a Trust?” A Trust in most instances does not replace a Will. An effective Estate Plan requires a Will. Whether there is a Trust component within the Will, or a Trust outside the Will, you almost always need a Will.

Advantages of Creating a Trust:

Tax Avoidance-Property can be left not outright to your children, but in a Trust for their benefit for life. Eventually, the property is distributed to your grandchildren. No federal or Massachusetts estate tax could be imposed on the property that is in the Trust at the time of your child’s death. However, the federal government does impose “a generation-skipping transfer tax” upon the death of your child; there is an exemption available to your grandchildren.

Control and Flexibility- A trust provides a resolution to different concerns and financial circumstances. If you feel that your children or grandchildren are not wise or old enough to handle your assets, you could appoint a qualified Trustee to handle the financial matters for the benefit of your children or grandchildren.

TYPES OF TRUSTS

  1. Testamentary Trust-This is a type of trust that is created in a Will. The disadvantages of this type of trust are that the Trustee’s handling of the assets is subject to supervision of the Court and in cases where a minor is involved, “a guardian ad litem” will be appointed. Also, the Trustee must file annual accounts with the Probate Court and, ultimately, the assets in the Trust and the activity of the Trust will become a matter of public record.
  2. Revocable Trust-In contrast to a Testamentary Trust, you could create a Revocable Trust during your lifetime while retaining the right to revoke it or amend it. Then you would be providing in your Will that your property is to be added to your Trust. You would have unlimited access to your property and could manage it in any way you want during your lifetime.

Like so many things in life, there are the advantages and disadvantages.

The disadvantages of a Revocable Trust regarding real property are transfer of Title to the Trust requires deed preparation, title examination, and recording. In cases where a mortgage needs to be obtained, a Trust may cause disqualification in certain circumstances. On the other hand, once a piece of real property has been placed in a Revocable Trust, there will be no need to include the property in your Probate Estate, which can make things much easier for your heirs. Relatively recent legislation in Massachusetts permits a Trustee of a Trust to file a Certificate stating only the basic abilities of the Trustee to act for the Trust.

Much more to follow!!!

BY: Caroline J. Hanania

Associate Attorney

Topkins & Bevans

Attorneys At Law

781-890-6230 Ext 225

DISCLAIMER: PLEASE NOTE THAT THIS IS NOT LEGAL ADVICE. PLEASE CONSULT AN ATTORNEY REGARDING ANY LEGAL MATTERS

What would happen to my Estate if I were to die today?

Unfortunately, one does not know what can happen from one day to the next.  That is why it is important to consult an Attorney to create an Estate Plan, which includes a Will and, possibly, a Trust.  If a person fails to dispose of all, or a portion of, his or her estate by a valid Will or Trust, then such property is distributed under the Massachusetts rules of intestacy.  You will need to be especially careful in the coming days, because, as of March 31, 2012, things are scheduled to change.

The pending changes to the Intestacy Laws will have a significant impact on the Estate of a person who dies without a Will or Trust in place.  For instance, under the new law, a much larger share will be distributed to the surviving spouse than under the current Massachusetts law. Changes like the aforementioned are things that people need to be aware of.  To that end, over the course of the next few months I am going to post a series of questions that are commonly coming up in my daily practice, starting with a basic one: I am married and do not have a will, what would happen to my Estate if I were to die today?

Answer:  The answer to this question varies depending on circumstances.

1.              For instance, if you don’t have a parent or children, then the surviving spouse takes the entire intestate estate.

2.            If, you have a parent, and no children, then the spouse takes the first $200,000.00 and three-fourths of any balance of the intestate estate.

3.            If you have children born into the marriage of you and the surviving spouse and there are not other children of the spouse, then the spouse takes the entire intestate estate.

4.            If, you have a child or your spouse has a child but the child is not common with both of you, then the spouse takes the first $100,000.00 and one-half of any balance of the intestate estate.

If this is not how you would like your property to be distributed upon your death , you need a Will or some kind of Trust. Please contact me to set up an appointment to meet, so we can memorialize the distribution of your assets which you desire. I can be easily reached at chanania@topbev.com.

Much more to follow!!!

BY: Caroline J. Hanania

Associate Attorney

Topkins & Bevans

Attorneys At Law

781-890-6230  Ext 225

The Reverse Mortgage a Possible Salvation to the Senior’s Retirement Plan

Many senior citizens have been significantly impacted by the volatile economy. The downward swing has forced many to dramatically change their retirement plans. One option available to them is the Reverse Mortgage. It is a relatively new product and seems to be very misunderstood. The Reverse Mortgage is designed to allow the borrower the ability to access the equity in their home today. They are not required to make payments to repay the equity taken. The essence of the Reverse Mortgage is that it is a loan with no payments due until some later time, which very well may be after the borrower is no longer in the property for whatever reason. The ability to pay-off a conventional mortgage with a Reverse Mortgage will end that monthly payment which may be draining your funds.

What are the requirements to getting a Reverse Mortgage? You must be 62 years of age or older. The property being used must be your principal residence in other words you must live there. If you do have a mortgage secured by the property the balance on it must be low enough so that it can be paid from the proceeds of the closing. The Reverse Mortgage must be a first mortgage. The property can be a single family home, a 1-4 family dwelling as long as  you reside in one of the units, a HUD-Approved condominium or a manufactured home that meets FHA requirements. Your income levels do not matter. You will also have to work with an independent HUD approved counselor in their local community to review the Reverse Mortgage Process, to make sure you know your rights.

The amount you can borrow is going to depend upon a few factors, your age, the current interest rates, and the appraised value of your home. The amount you borrow can also be limited by the FHA’s mortgage limits for the area where your property is located. Basically the amount you can borrow will be greater the older you are, the more valuable your property is and the lower the interest rates are. The AARP has on its website a calculator to determine the amount the borrowers may have available to them. http://rmc.ibisreverse.com//rmc_pages/rmc_aarp/aarp_index.aspx.

You will have to attend a closing just like any other loan transaction. The documents creating the security interest in your home will be signed then with other disclosures. You will have the next three business days following your closing to cancel the transaction. You can cancel this transaction during that time for any reason at all, provided you cancel it properly. The cancellation period does not apply to purchases transactions using a Reverse Mortgage.

Once you get your loan how can payments be made to you? A lump sum of the loan proceeds can be paid to you after the cancellation period has expired. The funds can be paid to you on a monthly basis. The payment will be the same each month and will continue as long as at least one of the borrowers is living in the house. This is called the Tenure Payment. You can also select the Term Payment which is similar to the Tenure Payment but the number of payments is for a fixed period of months. The next option is the Line of Credit. This allows the borrower the ability to select the times and amounts when you want the money. You can do this until the amount in the Line of Credit is exhausted. The Modified Tenure option is a combination of Line of Credit and monthly payments for as long as one borrower is in the home. The last is the Modified Term, which is a combination of Line of Credit with fixed monthly payments for a set term. These options allow the borrower to plan their retirement with more certainty.

The borrower will have to pay their taxes and homeowner’s insurance. If they do not they may be subject to the bank making the claim that the loan has to be paid. Otherwise as long as one of the borrowers is living in the property no payments will be due. If the property is sold by the borrowers the loan must be paid off. If the borrowers are deceased then it will be the estate’s obligation to pay off the amount due. The estate when it sells the property will then be able to keep the funds that the property sold that exceed the amount due. The amount due from the estate cannot exceed what the property is worth. If the estate wants to keep the home they could pay off the balance of the loan at that time.

Most Reverse Mortgages are taken out on an owner occupied principal residence. There is the option of purchasing a home using a Reverse Mortgage. The borrower must meet all of the requirements mentioned above and also have the funds to purchase the property when added to the available Reverse Mortgage loan proceeds. The rest is the same, no monthly payments due.

The Reverse Mortgage can be a valuable tool in planning your future. You should meet with a trusted advisor that offers Reverse Mortgages. You will now be able to ask the questions you need to based upon this information. The Reverse Mortgage may not be right for everyone but everyone should understand it so they can be aware of all of their options and make sound decisions. You will be the one in charge and making the best decisions for you and your future.
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