Category Archives: Estate Planning

Your trust might be OK after all

Estate Planning, Home Ownership, real estate law, trusts, ,

There is a constant battle between Medicaid applicants and MassHealth that is “David-and-Goliath-Like”. The applicant wants to minimize the amount of assets included in their application so they can qualify for Medicaid Assistance and have their long-term care paid for by the government and MassHealth wants to include as many of the applicant’s assets as possible to limit the assistance provided to the applicant. Many of the debates between applicants and MassHealth involve the use by applicants of trusts. This battle over the use of a nominee trust was brought to the Massachusetts Supreme Judicial Court by Joellen Guilfoil as the personal representative of the estate of Dorothy E. Frank. (Joellen Guilfoil, personal representative vs. Secretary of the Executive Office of Health and Human Services)

As a background to the case, MassHealth governs the Medicaid program in Massachusetts. Medicaid eligibility is based upon the applicant’s countable assets. The value of the applicant’s countable assets cannot exceed $2,000.00. Countable assets are basically those assets of the applicant that are in their control and those assets given away by the applicant for less than fair market value during the 5 years preceding the date of their application. Many applicants will transfer assets to a trust in the hope of excluding them from their countable assets and therefore qualify for Medicaid benefits. In an effort to prevent this from happening, Congress has enacted the “any circumstances” rule. This rule is defined as “if there are any circumstances under which payment from the trust could be made to or for the benefit of the individual, the portion of the corpus from which, or the income on the corpus from which, payment to the individual could be made shall be considered resources available to the individual”. If any circumstances are found, the assets are considered as being in control of the applicant and therefore a countable asset.

Dorothy Frank, the David of the case, created a nominee trust entitled “the Frank Family Realty Trust” on December 16, 1999. She was the trustee of the trust. She also named the beneficiaries of the trust. The beneficiaries were her five children as joint tenants with rights of survivorship and herself with a retained life estate. She then conveyed her Fitchburg home to the trust at the same time she created the Trust. Dorothy applied for long-term benefits from MassHealth, the Goliath, in 2017. The only potential countable assets she had were the Fitchburg home worth $109,000.00 and a credit union account worth less than $2,000.00. MassHealth denied her application ruling that the trust property was in her control and therefore a countable asset. Based upon the value of the credit union account, if the home was not a countable asset Frank would have qualified for Medicaid. A hearing was held next and the MassHealth denial was upheld. The Superior Court later upheld the decision of the hearing officer denying the application. Frank appealed the Superior Court decision and the SJC decided to take the case.

The SJC framed the issue presented to them fairly simply as, “whether the entire interest in a property transferred to a nominee trust is a countable asset in a MassHealth eligibility determination where the trustee retains a life estate in the real property”. The Court, in its discussion, focused on what a nominee trust is and what it is not. A nominee trust is usually created for the sole purpose of holding title to the property. The trustee has a minor role in the application of the trust and its assets. The Court stated that a Nominee Trust is not a “True Trusts”. True Trusts are either revocable or irrevocable trusts. A True Trust creates a fiduciary relationship requiring that the trustee act for the benefit of the beneficiary of the trust, a much greater role than the trustee of the nominee trust.

The Court stated that there are qualitative differences between nominee trusts and True Trusts. The initial difference it discussed was the limitation of the trustee powers.  Trustees iof a Nominee Trust are unable to act with respect to trust property without the direction of the beneficiaries. This limitation was included in the Frank Family Revocable Trust. This limitation creates a principal and agent relationship and not a fiduciary relationship. The central concept of the True Trust is the fiduciary relationship. The trustee of a True Trust may have broad powers it can undertake for the benefit of the beneficiaries without their input. There is a true delegation of power to the trustee.

The next level of review by the Court was whether the grantor of the nominee trust has the power to revoke the trust. If the grantor’s power to revoke does not exist then the beneficiaries become the vested owners of the property, if there is a power to revoke then beneficiary’s interest does not vest until after the grantor’s death. The beneficiaries of the Frank Family Revocable Trust and not the grantor of the Trust had the right to terminate the trust and therefore the property ownership was vested in the beneficiaries. Based upon these factors the SJC ruled that the Frank Family Realty Trust was a nominee trust and not a revocable or irrevocable trust. Therefore, once the property was conveyed by Dorothy Frank to the Trust the property was vested in the beneficiaries.

The Frank Family Revocable Trust does give the power to revoke the trust to any beneficiary. Dorothy was a beneficiary and the grantor, so why is she not able to revoke the trust and get the property back? If the Frank Family Revocable Trust was terminated all assets of the Trust must be distributed to the beneficiaries pursuant to the terms of the Trust. So even if Dorothy as one of the beneficiaries was to terminate the Trust each beneficiary would get their interest in the property subject to Dorothy’s life estate. So, the initial transfer of the property to the trust created an irrevocable gift to the beneficiaries subject to Dorothy’s life estate. MassHealth has long held that if an irrevocable gift was made by an applicant and the five-year look-back period has expired the property given is a non-countable asset, here the look back period had long since expired.

The next issue reviewed by the Court, was whether the life estate retained by Dorothy Frank would make her ineligible for Medicaid? The SJC ruled that it did not. The life estate gave her the right to use and occupy the property but not the right to sell it and distribute the proceeds of the sale. Therefore, this property was not a countable asset for Medicaid eligibility purposes and Dorothy’s application should be treated as such. Based upon this the SJC reversed the Judgment of the Superior Court. Confirming that yes David can occasionally take down Goliath.

Making the Most Out of Your Power of Attorney

Estate Planning, Health Care Proxy/HIPPA, real estate law, Reverse Mortgages, trusts, Uncategorized

Present and Future Protections Against the Unknown

A Power of Attorney is a legal document in which you grant a selected person or persons the ability to act on your behalf in financial matters. This can include, but is not limited to: signing on your behalf during a sale, accessing your bank account to pay your bills, adjusting your investments, etc. As such, it is an integral part of any estate plan.

Unfortunately, with this important document come some inevitable risks. The selected person or persons will have access to and control over some of your most valuable assets. More importantly, once the access and control is given, they will be able to take actions without obtaining permission or approval; unless and until the document is revoked.

For many this is cause for concern. They worry that they are sacrificing the safety of their present assets for the sake of future protections against incapacity. And, to some extent they are correct. To protect yourself in the future, there is a certain amount of control that must be given up in the present. But, there are several ways to mitigate these risks.

Here are some of the main ways that this can be accomplished:

Select a Power of Attorney that you trust.

It is very important to think long and hard prior to selecting a person or persons as your Power of Attorney (also known as your POA). But, this choice is more than just finding someone that you can trust not to steal your hard earned money. (Though that is important.)

You should be looking for someone that you trust to make financial decisions in the same manner that you would. To do this, you must first carefully consider your beliefs/opinions/values regarding money. Then, attempt to select someone that mirrors those same beliefs/opinions/values in their own life.

It is also important to consider whether or not the POA you select can handle the responsibility of being your Power of Attorney. Handling the finances of another person can be a difficult responsibility that not everyone is capable of taking on. Carefully consider how the POA will balance their own responsibilities with your own. And, whether the POA will know when to seek assistance if the responsibility becomes too great.

Finally, it is important to make changes to your Power of Attorney Document if circumstances change. As time passes, life events may occur that give you reason to change your POA. Do not hesitate to make such changes, as you never know when you will need your Power of Attorney Document

Carefully Crafted Provisions within the Document.

Even when a POA has been carefully selected, your assets may still be vulnerable. The future is unpredictable and the person you once trusted may disappoint you. Therefore, it is important to have your Power of Attorney Document drafted to restrict the actions your POA can take.

One such provision could be a Restriction on Gift Giving. This provision would not allow your POA to make a gift of your assets to themselves. For example, should the POA wish to acquire your property, they would be forced to pay fair market value for it. Another provision could be to restriction the POA from making amendments to your Estate Plan. This could protect your Will and Trust from being amended in a way you would not have wanted.

Not all protective provisions will work in every situation. Carefully discuss your individual circumstances with your Attorney. They will be able to suggest specific provisions that will fit your needs.

Keep the Signed Power of Attorney Locked Away.

If you are still concerned regarding the safety of your assets, it may be an option to sign your Power of Attorney Document but keep it in your possession. As the signed original is required for the POA to act, without it they are powerless. You could then choose when you wish your POA to have access by simply delivering the signed document to them.

It is important to note that this course of action does not come without risk. If need arises for the POA to act, but they do not have access to the signed original, they will be powerless. If the Power of Attorney Document cannot be located or the POA does not know the document exists, it could then become necessary to petition the court for the authority to act on your behalf. A court petition could be a lengthy and costly procedure. And, it could ultimately result in a POA being selected that you would not have appointed.

Consider a Limited Power of Attorney.

This may be a good option for you if you have a specific task that you need done that you either cannot or do not want to do on your own. Often, this document is used during real estate transactions. For example, an attorney will be requested to attend a closing on behalf of a buyer or seller. In this case, the Limited Power of Attorney Document will allow the POA the ability to sign documents at the closing. Once the closing is complete, the powers granted to the POA by the Limited Power of Attorney Document cease.

Though this type of document may assist with protecting present interests by limiting the POA powers, it leaves much to be desired. A Limited Power of Attorney Document does not and cannot anticipate every need you may have in the future. Therefore, when the unexpected occurs, your POA may be left seeking court approval to handle the matter.

Consider a Springing Power of Attorney.

A Springing Power of Attorney is as all encompassing as a general Power of Attorney but it includes a specific provision that requires a certain event to occur before it becomes active. Normally, this event is incapacity.

Theoretically, this document offers the best of both worlds. You maintain sole control over your assets while you are capable then your POA can take over as soon as the activating event occurs. However, there can be significant downsides.

The significant downside and a reason why this type of Power of Attorney Document is not always recommended is the trigger event. If a need arises prior to the triggering event, a court order will be necessary. And, if the triggering event is incapacity, there can be several steps necessary to activate the Power of Attorney Document. These can include providing incapacity to a Doctor or court, which can take time that the POA may not have.

Do I need a Healthcare Proxy and/or Power of Attorney?

Estate Planning, Health Care Proxy/HIPPA, trusts, Uncategorized

The short answer is… YES.

The Basics: A Health Care Proxy is a legal document that allows another person to make medical decisions on your behalf. A Power of Attorney, on the other hand, is a legal document that allows another person to make and/or execute financial decisions on your behalf.

Why a Health Care Proxy is Important: Medical emergencies can occur at any age. If or when that day comes, someone must make medical decisions on your behalf.

Every person has different beliefs/opinions regarding medical decisions. These decisions range from long term care facility preferences to medical procedures you would and would not like performed. These are intensely personal decisions that have taken you a lifetime to develop. By selecting a Health Care Proxy (HCP for short) in advance of a medical emergency, you have the ability to choose someone that shares in these beliefs/opinions. Without such a document, family members or a court appointed individual may make decisions on your behalf without this knowledge. And, in some cases, this results in actions being taken or not taken that you do not agree with.

Therefore, a HCP is an essential document, in order to make sure that your wishes are carried out, when you are no longer able to make the decisions yourself.

Why a Power of Attorney is Important: Again, medical emergencies can occur at any age. If or when that day comes, someone must make and execute financial decisions on your behalf.

One of the biggest reason to select a Power of Attorney (POA for short) prior to a medical emergency is TRUST. As with health decisions, financial matters are intensely personal. By creating a POA, you can select someone that you know has similar beliefs/opinions regarding money as you do.

A second major reason to select a POA is that the future is UNPREDICTABLE. For years you have planned for your future. You have been putting away money for a house, children’s college tuition, retirement, etc. But then the unexpected happens. That money you have been saving now needs to be used for a different and unforeseen purpose; such as a child with disabilities, the unexpected loss of a job or medical bills. When you are in charge of your finances, you can make these alterations and move forward. However, if you are unable to make financial decisions on your own, a POA will be able to continually monitor your finances and make the necessary changes to protect you into the future. Without such an individual, you may be stuck with the plan that you created prior to your incapacitation that is no longer in your best interest.

As with the HCP, if you do not have a POA the court can appoint someone to act on your behalf. However, this person may not share your beliefs/opinions, may be appointed too late to correct financial errors or may be unwilling/unable to make the decisions/changes you would have. Therefore, it is important to select your own POA, and understand how your finances will be handled when you are no longer capable of handling them on your own.

Conclusion: The future is unpredictable. Put together a Healthcare Proxy and Power of Attorney now so that your future is a little more protected from the unpredictably negative turns life can take.

Should I Put My Child On My Deed?

Estate Planning, Home Ownership, real estate law, title, trusts

There are many options when it comes to estate planning. These options can often seem overwhelming and unnecessary. This can feel especially true when dealing with relatively small estates.

In an attempt to avoid the estate planning process, many consider placing their children on the deed of their home. The thought is this: The home is the only asset they have of great value and this will allow the property to go to their children upon their death without dealing with the courts. It is also seen as a relatively cheap alternative to estate planning; making it even more appealing. However, under most circumstances, this is ill advised and can have disastrous consequences.

The main problems with adding a child to your deed are:

  1. Creditors
  2. Control; and
  3. Spouses

Creditors:

As the largest asset that most people own, a home is very valuable. It is often more than just a place to live but is used as collateral to pay for college, weddings, and/or retirement. The home is also one of the first assets creditors go after when a debt is owed. Once a child is placed on a deed, that property becomes open to that child’s creditors. Even if the child has little to no interaction with the property (i.e. does not live there or contribute to mortgage payments) creditors will still have rights over the property.

Though many believe their children to be financially stable, the future can be unpredictable. Unforeseen events, including sickness, can lead to financial instability. This instability can jeopardize your property and leave you with little choice or control. Your children’s creditors may then end up with rights to the equity you have developed, putting you into financial situations you are ill equipped to handle or recover from.

Control:

Once placed on the deed, a child will have an interest in the property. This means that they will need to sign off on any decision made by their parents; whether that is refinancing, selling or otherwise. Though for most this will only be a slight inconvenience, for some it can become more.

If a child decides they do not wish to cooperate, wish to have more control in what happens to the property or wish to gain something financially from the property, a child may have rights to do so. Though the problems may be fixable, it could cost an incredible amount of time and money in court.

Spouses

We all hope that we love, or at least like, our child’s spouse and that their love lasts forever. Unfortunately, for many that is not the case. And, as a child has a degree of control over the property once they are on the deed, so will their spouse.

This control can come in the form of influence over the child or through divorce. If it does turn out that the parents do not care for the spouse, this could lead to animosity that is taken out on the property. Also, in the event of divorce, the property may be up for debate when assets are split.

Conclusion

It is only natural to want to find the quickest and cheapest way to accomplish your goals. However, it is important to understand the risks involved in those decisions. For most, their home is the most valuable asset they own and decisions regarding title should not be taken lightly. Always consult an Attorney prior to making decisions regarding title, to fully understand your options and the consequences of any action.

March 2015 Newsletter Trending Now

closing, Estate Planning, Health Care Proxy/HIPPA, Home Ownership, Marketing / Communication, real estate law, title, trusts, Uncategorized
T&B Trending March 2015 Vol 2-2015
 

Housing Market Continues Slow Climb Toward Stable Levels

 

Source: Dsnews.com

 

The latest Multi-Indicator Market Index (MiMi) from Freddie Mac, released Wednesday, showed that the U.S. housing market showed continued stabilization for the fourth straight month in December.
Read more >>

 

 

Q4 2014 Commercial Real Estate Cycles from Dividend Capital

Source: Ted C. Jones

There is one blog topic that I write about quarterly that is preceded by several calls and emails as to when it is scheduled to be available – The Cycle Monitor – Real Estate Market Cycles from Dividend Capital, prepared by Dr. Glenn Mueller from the University of Denver. Read more >>

 

FHA launches historic homebuyer ‘care package’ for 2015

 

Source: Inman.com

 

After several years of lackluster participation in the housing market, first-time homebuyers are getting a boost from the Federal Housing Administration (FHA) this year.
Read more >>

 

March 2015 Newsletter Trending Now

 

Source: Topkins & Bevans Blog

 

This is the time of the year when all of us have no choice but to pour through our bank statements, credit card statements, checks and acknowledgments from charities regarding contributions….. While you are going through this data-producing exercise, you might want to consider your Will, and other elements of your Estate Plan, at the same time.
Read more >>

 

Topkins & Bevans

Offices in

Boston, Braintree and Waltham

rbevans@topbev.com

www.topkinsandbevans.com

Tax Time Considerations: Estate Plan? Yes

Estate Planning, Health Care Proxy/HIPPA, real estate law, Reverse Mortgages, trusts, Uncategorized

This is the time of the year when all of us have no choice but to pour through our bank statements, credit card statements, checks and acknowledgments from charities regarding contributions. Whether you prepare your own tax returns, or have a professional assist you, the first step is always to gather together data from the past year and assemble it into a form which will permit the preparation of an accurate tax return.

While you are going through this data-producing exercise, you might want to consider your Will, and other elements of your Estate Plan, at the same time. While your Estate Planning documents focus more on whom you would want to take charge of your assets, and to whom, and in what amounts you wish your assets to be distributed, preparation for getting your Estate Plan in shape is not that much different from getting your tax information together. Perhaps, you have an Estate Plan, but it was executed many years ago and the people you selected to serve as executors and trustees, or health care agents, are no longer living or have moved away. Maybe, your children have achieved a level of maturity where you can trust them to take care of things when you are no longer able. Maybe you have developed a relationship with a bank, or other financial institution, which you are comfortable with, and whom you want to get involved.

The point is just like your tax returns take some effort to gather information; your Estate Plan requires the same type of thinking and assembling. It matters not that you have located all the information concerning your income for 2014, if you do not get same on the return; you are in jeopardy with Federal and Massachusetts tax-collecting authorities. Similarly, even if you have located your old Will or Trust, your wishes will not be served unless you make the effort to meet with an attorney and inform him or her whom you want to be in charge, and to whom your assets should be distributed. Sometimes, all you need to do is “tweak” your current Will or Trust with a Codicil or Trust Amendment. Other times, you may need to prepare entirely new instruments, because the ones you have in place are so “dated”.

If you are one of that majority of Americans who have no Will or Trust in place, AT ALL, tax time may be the time that you climb off the fence and stop procrastinating with your family’s future. You really owe it to your spouse and children to put down in writing to whom you want your assets distributed, and which people you want involved in making it happen. Not everyone in your family will be happy with your choices, but no one will be able to say “Mom would have wanted this” or “Dad would have wanted that”. You do not have to rely on the laws of the Commonwealth of Massachusetts to distribute your wealth. You will have made it perfectly clear what you want.

Estate Planning Essentials: Your Age Doesn’t Matter

Estate Planning, Health Care Proxy/HIPPA, trusts, Uncategorized, , ,

 

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.

Massachusetts Court of Appeals rules that a deed notarized improperly is unenforceable?

Estate Planning, Home Ownership, Litigation/Disputes, real estate law, trusts, Uncategorized

The Massachusetts Appeals Court in Allen V. Allen ruled that a deed signed by a grantor but not acknowledged by the grantor before a notary was not enforceable. This was family transaction involving the family home in Lexington. The matriarch of the family Ethel began the process of moving from her Lexington home to live with one of her daughters, Nancy in 2001. Ethel’s son Harold claims that a deed from Ethel executed on July 23, 2001, conveyed the house to him and Ethel as joint tenants. This deed is the subject of the litigation. An Attorney prepared the deed and notarized it. The acknowledgement (notary) was dated July 23, 2001, and it read: “Then personally appeared the above named Ethel M. Allen and acknowledged the foregoing instrument to be her free act and deed, before me”. The attorney then recorded the deed on August 10, 2001.

Later that year, on November 30, 2001, Ethel established the Allen Realty Trust and executed a deed conveying the Lexington property to herself and to her daughter Deborah as co-trustees of the Trust, reserving a life estate for herself. Ethel specified in the trust that the property would be sold upon her death and the proceeds divided among several of her descendants, including Deborah. This deed was recorded on February 8, 2002. Ethel died on December 20, 2009. It was at this time that Harold revealed the July 23, 2001, deed. Neither Deborah nor her sister Nancy nor the attorney who prepared the November deed had discovered Harold’s deed. When the second deed was recorded no title examination was done. Deborah commenced a litigation in January of 2010. Her suit disputed Harold’s claim to the property and sought to declare the deed to him was unenforceable.

The judge at the trial found that Ethel’s signature on the July deed was authentic. But he determined that Ethel never appeared before the attorney/notary to acknowledge the deed. The judge found that Ethel had signed the deed in front of Harold; he then brought it to attorney/notary for his signature, and then the attorney had notarized the deed without Ethel in his presence.

The Land Court ruled that the deed was unenforceable because it was improperly notarized. It was not sufficient that Ethel had signed the deed. She had not confirmed before the notary that the deed had been her free act and deed. The deed because of the invalid acknowledgement was not entitled to be recorded as the Registry of Deeds. The Court stated “We therefore conclude that the latent defect in the certificate of acknowledgment of the July deed prevented it from giving constructive notice to Deborah of the prior conveyance.” The Appeals Court affirmed the Land Court’s findings in its decision.

There were other arguments made by Harold which all also failed. Always remember that a document cannot be notarized unless you are in the presence of the notary when you execute it or when you acknowledge that your signature was your free act and deed. Also whenever you have a document conveying an interest in real estate recorded, have the title checked for any other matters first and then record your document.

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