Estate Planning

Saturday, January 30, 2016

Medical Orders for Life Sustaining Treatment

What is a MOLST form?

Many individuals are familiar with advanced medical directives,  documents formalize our end of life wishes. These directives become effective when a person is incapacitated and can no longer make decisions for him or herself. Massachusetts has recently introduced a new type of advanced directive called the medical order for life sustaining treatment or MOLST form.

The MOLST form is to be used by individuals with “advanced illnesses” so that their decisions relating to life sustaining treatment are known. These documents are different from the health care proxy and living will as they are medical forms used to communicate a patient’s wishes to every medical professional on the person’s care team. 

Before an individual signs one of these forms they should engage in a discussion with medical care providers and family. This is meant to give the patient an overview of his or her current condition, future possibilities and the advantages and disadvantages of life sustaining treatment. After the appropriate discussions have taken place the clinician and individual both sign the form.

The MOLST form is kept in the individual’s medical record for the remainder of his or her treatment. Care providers should refer to the MOLST form in any situation in which life sustaining treatment is necessary.

Some people have criticized the MOLST form saying that it promotes death. They claim that the form presents the options that promote death before those that promote life. These critics believe the form might persuade those that vulnerable to choose death in these situations.

If you are confused about the MOLST form or any other advanced directive, you should speak to an experienced estate planning attorney. 


Thursday, January 28, 2016

It’s Time to Call The Estate Planning Lawyer

What events trigger the need to discuss your estate plan with your attorney?

It is uncomfortable to talk about our own illness or death or those of the ones we love.  That is why many are hesitant to contact an estate planning attorney, especially early in life.  But, at certain times, you need to put your feelings aside and reach out.  There are a number of events that trigger the need for you to contact your attorney.

Many people are diagnosed with serious, even terminal illnesses, every day.  If you are one of these people, it is likely that you might become incapacitated at some point in the future.  You need to plan for this time and there is no better way than by contacting an estate planning attorney. You might want to execute a durable power of attorney and other advanced medical directives. These documents allow you to name someone you trust to make decisions for you should you be unable to do so yourself.

You should also contact your lawyer if there is a death in the family. While you don’t have to reach out immediately, you should do as soon after the person’s death as practicable to determine what needs to be done with regard to his or her estate. There could be probate or administration, trust or other issues that need to be handled within a certain period of time. If the deceased was part of your estate plan, you should consider making any necessary changes.

While it might not seem like it, marriage or engagement is another event that triggers the need to speak to an estate planning attorney. Marriages have a direct effect on the ownership of property.  The parties entering into the marriage need to determine if a prenuptial agreement is needed.  Prenuptial agreements can be important in first marriages, as well as in second marriages where children from prior relationships are involved.

Other instances in which contacting an estate planning attorney are necessary may be more uncomfortable. These include times when one of your intended heirs is going through a rough patch that affects familial, and often financial, arrangements. Whether the problem is marital trouble, substance abuse or legal difficulties, you will need to determine whether you want the designated person to benefit from an inheritance and/or whether you should consider putting restrictions on such an inheritance.

This is precisely the type of problem an estate planning attorney is prepared to help you with. Not only is such an attorney knowledgeable about legal matters, but he or she has had experience in such matters. In addition, the attorney is not emotionally involved and so can help you maintain a realistic perspective.


Friday, December 25, 2015

Changing Your Estate Plan after a Divorce

How does a divorce affect your estate plan?

Planning an estate is essential for protecting your assets, ensuring your wishes are carried out, and relieving your loved ones of unnecessary burdens. When it comes to divorce, modifying your estate plan is something you cannot afford to overlook. A divorce proceeding is difficult in and of itself, but your estate plan should reflect the changes in your life.

Some of the documents that should quickly be revamped include your health care proxy and your will or trust. If your ex-spouse was listed as the agent in a health care proxy, that appointment is revoked by law when the divorce becomes final; however, you need not wait to name a new proxy. In any case, a new agent needs to be appointed to make healthcare decisions should you become incapacitated.

As for your Will, if you appointed your ex-spouse as executor, a sibling, a parent or a financial agent can assume that role to ensure minor children receive any inheritance you had planned for them. In some cases, the divorce agreement may even require the establishment of a trust for the children. You will also need to name a new durable power of attorney so that your former spouse is not appointed the agent of your financial matters. In addition, the beneficiaries of any life insurance policies, retirement plans and other financial accounts will also need to be updated.

While many of these documents cannot be finalized until the divorce is settled, consulting an estate planning attorney during the divorce proceeding can help you make plans in advance and address any issues that may affect your estate.

Whether your divorce proceeding is ongoing or has been settled, it is essential to ensure that the decisions made during the divorce will carry over to your estate plan. In some cases, a divorce agreement may also require you to designate your ex-spouse as a beneficiary on an insurance policy. Other financial agreements included in a divorce settlement may also affect your new estate plan.

In addition to protecting your assets, it is important to get your affairs in order as you enter the next phase of your life. If you are contemplating a divorce or have reached a settlement, you should engage the services of a qualified estate planning attorney.

Monday, December 21, 2015

In the Spirit of Giving

How can I incur the least amount of tax when gifting assets to my loved ones?

It’s the holiday season and giving is in the air.  You have always been told that it is better to give than to receive and now it is time to put that mantra into action.  Many people are interested in gifting assets to their loved ones, either during life or at death.  Can you do this?  If so, can you do it without being taxed?  If you know and understand some simple guidelines the answer is yes.

You might want to give money away so that you can witness your children, grandchildren or other family members enjoy it while you are still alive or to spend down a large estate.  In general, you are permitted to give any one person $14,000 in cash tax-free every year.  If you are married and your spouse wants to join in the gift, you can give any one person $28,000 every year without incurring taxes. However, you must be cautious about gifts given during your life and ensure that you are not giving away money that you might need in the future.

Parents and grandparents are also permitted to give tax-free monetary gifts in the form of college tuition or health insurance payments.  While there is no limit to these gifts, they must be paid directly to the school or health insurance company.

In addition to giving gifts to loved ones during your lifetime, you can also give gifts to your family after your death.  When drafting an estate plan, you want to create a plan that incurs as little tax as possible.  Currently, the federal estate tax exemption is $5.43 million.  The Massachusetts estate tax exemption is $1 million.  This means that you will only pay a federal estate on any amount of $5.43 million and a Massachusetts estate tax on any amount over $1 million.  You can spend down the assets that will be included in your estate by making gifts during your life, such as the ones discussed above, so that you are not subject to the federal or state gift tax.

If you are considering making a gift of your assets but are concerned about the tax consequences  in relation to your estate plan, you should consult with an  attorney. 


Sunday, November 29, 2015

Estate Planning with Digital Assets

How do you incorporate digital assets into your estate plan?


Most of us can’t go a day without checking our email, social media or online banking. We depend on these digital resources for entertainment and other purposes so much that we are spending more time online than ever before.
But, what happens to these accounts after you die? Are they doomed to float on in cyber-space for all eternity or do you have a say? Luckily, you can decide what happens to your digital assets just like other assets.

What is a digital asset?


Almost anything can be considered a digital asset. Computer files, email accounts, social media, online banking and blogs, among an array of other things. Basically, anything that is on a computer and/or is a part of your online presence is a digital asset.

How do you manage digital assets in an estate planning context?

Digital assets should be handled in a similar way to other traditional assets. The first step in this process is to compile a list of all of your digital assets. Once this list is made, use it create another record of the usernames, passwords or other security information for each account listed. This will allow a person of your choice to access the account and follow the instructions that you have given.

Once you have a list of assets and a record that will allow access, you must choose someone to manage these items after your death. While choosing an executor is often based on his or her trustworthiness and relationship with you, it is important to choose someone that understands digital assets as well. Your executor might be wonderful at handling other portions of your estate but have no clue where to start with your digital assets. The last step in this process is leaving detailed instructions for the person you have chosen. Would you like the accounts closed or would you prefer they remain open? If the estate can benefit financially from one of the assets, would you like to designate how? Who do you want important personal and business information to go to? It is crucial to be as detailed as possible when giving instructions on these matters.

As there aren’t many laws relating to digital assets on the books, attorneys are free to be creative when coming up with a plan.


Friday, November 27, 2015

Options in Creating Trusts for Minors

I’d like to leave something to my grandchildren, many of whom are currently small babies. Should I create a trust on their behalf?


When it comes leaving significant assets to minors, creating a trust on their behalf if usually the most secure way to ensure the assets are protected and the children are able to benefit from their inheritance when the time comes. When a minor inherits money or assets, these bequests are almost always kept in trust whether the estate plan so directs or not. By preplanning the terms of the trust, however, the testator can ensure the proper trustees are selected and any desired conditions are contained within the terms of the trust. Moreover, the testator can rest assured knowing that the assets will be carefully and prudently handled by a trusted relative or institution. This is one of the most important components of a comprehensive estate plan.

Children’s trusts can come in a variety of formats. One of the most common types of children’s trusts is the basic Individual Child’s Trust. As the name suggests, this arrangement creates a separate trust for each minor child named in the estate plan. The trust creator is able to attach conditions unique to each child, and may include different directives depending on the child’s needs and proclivities.

A Children’s Pot Trust is an alternative format that creates a single trust for the benefit of multiple children. In some scenarios, this can help ensure a more equal and even-handed distribution of assets, ensuring that children have equal access to the funds regardless of their age and/or station in life. In most cases, the pot trust is terminated once the youngest beneficiary reaches age 18, and the remaining assets are then distributed equally amongst all beneficiaries – a format which is favored by some families in certain scenarios.

If you are considering setting up a trust on behalf of a minor, there are a number of factors and criteria to consider along the way. It is always wise to work with a reputable, experienced estate planning attorney to ensure that your assets are distributed according to your specific wishes.

Thursday, October 22, 2015

Including a Pet Trust in Your Estate Plan

I live alone and would like to ensure my pets are adequately cared for when I pass away. How is this accomplished?

For many, pets are considered to be (four-legged) members of the family, offering security, love and support. As such, it is not uncommon for owners to experience anxiety when making future arrangements, particularly if pets are still relatively young or extremely valuable.

A pet trust is a relatively simple estate planning tool that can ensure pets receive the care they need and are able to maintain their accustomed lifestyle in the event the owner passes away. Like any trust, the individual creating the agreement (known as the trustor) elects one or several trustees to manage a sum of money pursuant to the terms of the trust agreement. In a pet trust agreement, any of the following provisions may be appropriate:

  • Identification of an individual or facility to house and care for the pet
  • Specific care instructions
  • Ways in which trust funds are to be used for the pet’s benefit
  • Charitable donations to a facility or welfare group
  • Medical care directives for the animal

In addition to the terms and directives of the agreement, the pet trust should include alternate plans in the event the named caretakers are unavailable or unwilling to house the animal when the time comes. Often, trustors direct that the animal’s trusted veterinarian make these decisions if no other custodian is available. Moreover, the pet trust should address the situation in which the pet predeceases the owner, and should include alternative directives for the placement of the pet trust funds.

If you are considering an estate plan and would like to discuss your options, please do not hesitate to contact Hutchings Barsamian today: 781-207-1717.


Wednesday, October 21, 2015

The Use of LLCs in Estate Planning

How can establishing a family LLC ensure that your loved ones will benefit as much as possible from your estate?

There is no question that you have worked long and hard to earn a living and acquire your assets.  Therefore, it is only natural to be concerned about passing your assets onto loved ones after you die. If you are seeking to transfer some assets during your life and to reduce gift and estate taxes as much as possible, a family LLC (limited liability company) might be the right choice for you.

An LLC is a legal entity, usually created in the business context, that offers its owners or members shelter from personal liability. LLCs are similar to corporations but are subject to less regulation and are, therefore, more flexible. Once an LLC is established according to state law, assets such as cash, real property and personal property can be transferred into it. The LLC can then be used for estate planning purposes.

A family LLC is usually set up with the parents as controlling or managing members and the children, grandchildren or other loved ones as members with limited rights. Because certain members have limited rights, the controlling members are able to transfer LLC units, which are similar to shares of stock, to the other members at a discount. This effectively allows the managing members to transfer their assets to their loved ones during their lifetimes. It also results in a reduced number of gift taxes. By making transfers during their lives, the managing members are spending down the assets that make up their estate, thereby increasing the chances that they will fall under the amount of the federal estate tax exemption, which is $5.43 million in the year 2015. In other words, using lifetime transfers, managing members can reduce their estate to an amount that is less than $5.43 million and avoid paying any federal estate taxes at all. 

While family LLCs are commonly used in larger estates, they can be beneficial to anyone seeking to reduce taxes and make lifetime transfers. An experienced trusts and estates attorney can evaluate whether a family LLC should be used in your situation. 


Thursday, October 8, 2015

Using a Power of Attorney to Avoid Costly Guardianship Proceedings

What is the most efficient way to plan for possible future mental incapacity?

Planning for mental incapacity is actually an important component of a comprehensive estate plan, and can help save beneficiaries (and your own estate) thousands of dollars in costly guardianship costs.

As a general starting point, understand that once a person reaches the point of incapacity, there are a number of legally binding transactions that he or she will no longer be able to complete. For instance, an incapacitated person (e.g., one suffering from the effects of dementia) cannot sign a contract, borrow money, sell real estate, make changes to an estate plan, or engage in financial transactions. In effect, the signature of such person becomes legally voidable upon contest from an interested party, which can create significant unnecessary stress for family members.

There are generally two ways in which a person can arrange for another person to step into their shoes and sign documents on their behalf: the easy way and the hard way. By going the easy route, an individual can execute a durable power of attorney, appointing another person or group of people with the authority to act as agent for the individual. Under Massachusetts law, an agent’s authority may be as broad or narrow as the language in the document – and the specific agent powers will be listed in the power of attorney. In addition, the “durability” of the document signifies it remains enforceable even past the point of incapacity, allowing the agents to take over on behalf of the principal for purposes of conducting financial and legal transactions.

If there is no power of attorney in place, and an individual becomes permanently disabled under the effects of a severe mental condition, it will be necessary to pursue an adult guardianship. This process can take several months to complete, and will require attendance at a hearing to determine if guardianship is in the individual’s best interests. What’s more, next-of-kin may contest the guardianship or file cross-petitions if there is an objection to a certain individual serving as guardian. By establishing a simple power of attorney in advance, however, this process can be avoided.

To discuss your estate planning options, including provisions to protect your loved ones if you should ever become incapacitated, please contact the skilled Massachusetts attorneys of Hutchings, Barsamian, Mandelcorn & Robinson, LLP at: 781.207.1717 or 781.222.0080.


Sunday, September 27, 2015

Medicaid Planning: Placing Assets in Trust vs. Making Outright Gifts

For purposes of long-term care planning, is it better to transfer property to my children now or to place it in an irrevocable trust?

As you have likely discovered, the costs of skilled nursing care are rising – and Medicare will only cover approximately 120 days in a long-term care facility. Accordingly, many seniors are considering their options and have concluded that it may be beneficial to begin the process of qualifying for Medicaid – which is a government-sponsored needs-based healthcare program offering long-term care coverage to those who qualify.

One of the more difficult aspects of long-term care planning is determining the best course of action for reducing personal assets. Under Medicaid guidelines, an applicant may only have approximately $2,000 in personal assets, excluding the family home and one vehicle. For applicants with a second home, moderate personal wealth, or other valuable assets, this could mean disqualification from Medicaid coverage – or at least a significant penalty period.

In preparing for eventual long-term care, applicants must reduce their assets in order to get below the threshold. There are generally two ways to do this: gifting to family or placing assets in an irrevocable trust. When it comes to gifting, it is important to consider the recipient’s responsibility and maturity level, as an outright gift of valuable land or assets could be quickly squandered. Moreover, gift recipients may make decisions with regard to the assets that are in their own best interests as opposed to those of the one making the gift.

By contrast, an irrevocable trust is an option that allows the placement of assets in an irreversible trust controlled by a chosen trustee who is under a fiduciary duty to engage in fair dealing and loyalty to the trustor. Due to the irrevocable nature of the trust, the trustors are not permitted to control the assets. They can, however, rest assured that their real and personal property will be handled with prudence and wisdom.

If you are considering long-term care and would like to discuss your options, please contact one of our skilled attorneys at Hutchings, Barsamian, Mandelcorn & Robinson, LLP at: 781.207.1717 or 781.222.0080.





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110 Cedar Street, Suite 250, Wellesley Hills, MA 02481
| Phone: 781.431.2231
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