Areas Of Practice
Specializing Estate Planning, Elder Law
and Probate in Fall River, MA
Estate Planning
Years ago, estate planning was all about death, dying and taxes. We encourage our estate planning clients to shift their thinking; we want your primary focus to be providing for your own personal, legal and financial security during your lifetime. Then we can address how your estate will be administered after you have passed away.
To accomplish this, we prepare “Lifetime Estate Planning Documents” according to your personal circumstances. These include:
In sickness and in health
Facing a serious medical diagnosis for a loved one is devastating enough without adding the stress of looking for legal advice. Rest assured – we know what to do and how to help – whether it’s navigating the complexities of Long Term Care Planning or Medicaid Planning.
When there is no advance planning in place, we guide you through the confusing Probate maze of Guardianships and Conservatorships, so that you secure the legal authority to care for your loved one and protect and preserve their assets. For families with children with special needs, we assist with planning to preserve their continued eligibility for needs based benefits.
In the event of a death
When a loved one passes away, we are ready to represent you in all aspects of the administration of the Estate, including:
Areas of Practice
Healthcare Documents
Sadly, we are all familiar with some well-publicized cases of family strife regarding the withholding of heroic life support measures, most notably, the Terry Schiavo case. The intrusion of the legal system in such tremendously personal and difficult decisions can be avoided by the following:
- Execution of a Health Care Proxy or Durable Power of Attorney for Health Care, in which an Agent is appointed and granted the authority to make medical decisions on your behalf when your physician determines that you are incapable of making such decisions for yourself.
- Specific directives can be included in a Health Care Proxy, or a separate Living Will Declaration can include such directives.
- A general HIPAA Authorization grants immediate authority to another individual to act as your HIPAA Representative and gives them immediate, present access to privileged medical information.
- Consideration of health care issues is a delicate subject that we handle with sensitivity to your needs and wishes.
Powers of Attorney
Equally important to making sure your wishes are carried out upon your death is making sure that you and your assets are protected and administered in the event you become incapacitated.
- A Durable Power of Attorney is a document that names someone to manage your legal and financial affairs on your behalf in the event of your absence, illness or incapacity.
- This grant of authority can be very broad (a general Power of Attorney) or limited to a specific act (for example, banking transactions, or representation at a real estate closing).
- A Power of Attorney remains in effect until you revoke it, or until you pass away.
- A properly drafted Durable Power of Attorney will keep you and your family out of the Probate Court during your lifetime; it is a key component of every estate plan.
Homestead Protection
The Massachusetts Homestead Act provides creditor protection for the principal residence of the Declarant.
- The current Act now provides for automatic protection of $125,000.00.
- The execution and recording of a Homestead Declaration in Massachusetts provides a total of $500,000.00 of creditor protection.
- It is important to note that a Homestead Declaration does NOT provide any protection from a Medicaid Estate Recovery Lien.
- We can advise you about other estate planning techniques that are available to protect the principal residence for Medicaid Planning purposes.
Wills & Trusts
This area of Estate Planning ensures that your wishes are carried out with the distribution of your estate upon your death.
- A Will is the cornerstone of the estate plan and provides for your probate assets to be distributed to the designated beneficiaries that you select.
- The Personal Representative (formerly known as the "Executor") of the Will is charged with the duty of seeing that the terms of your Will are fulfilled.
- If you die “intestate”, or without a Will, your probate assets will be distributed according to the laws of the state of your domicile.
- A Trust is a legal entity that is created through the execution of a written Trust Agreement or Declaration of Trust, which provides for the Trust assets to be distributed without any Probate Court involvement, thus saving considerable time and expense.
- The Trustee is the fiduciary who carries out the provisions of the Trust.
- We can help you determine if a Trust should be part of your estate plan.
Estate Tax Planning
The Estate Tax is a tax based upon the total value of what an individual owns, has access to or control over at the time of death. Years ago, this tax was commonly referred to as the “Inheritance Tax”.
- Effective January 1, 2023, the Federal Estate Tax exemption equivalent is $12,920,000.00.
In the Commonwealth of Massachusetts, however, the estate tax exemption remains at $1,000,000.00. - We can assist with the review of existing Estate Tax Plans, especially involving Trusts and Gifting.
- As Estate Tax Law continues to evolve, we will continue to monitor Estate Tax Planning as it pertains to your Estate and recommend amendments, as necessary.
- We also address the interplay of Tax and Long Term Care Planning.
Long Term Care Planning
There has been an evolution in the realm of Retirement Planning, with the proliferation of retirement savings vehicles, such as IRA’s and 401k’s. Similarly, we are witnessing a dramatic change in the degree of individual responsibility that must be assumed for the costs of long term care, whether in the home, in retirement communities, in independent and assisted living facilities, and ultimately in skilled nursing facilities.
Navigating this complex system is a daunting task for the layperson.
- Long term Care Insurance products are proliferating.
- Veterans Benefits Planning is confusing.
- Community and Long Term Care Medicaid eligibility and estate recovery rules are becoming more and more draconian.
- Appeals are becoming necessary with increasing frequency to protect and enforce the rights of the individual applicant, and in many cases, the community spouse.
Our expertise and experience enable us to assist families with planning for the costs of long term care and eligibility for all available forms of assistance, with the ultimate goal of remaining in your own home being paramount.
Special Needs Planning
Many government entitlement programs are “needs based”, that is, the recipient must qualify for the program financially, both in terms of income and asset limitations. Typically, these recipients have some form of special needs or disability. Unfortunately, well-intentioned relatives are often unaware of the havoc that can result from a lifetime gift or an inheritance that is not properly structured.
- Special Needs Trusts can preserve and protect the continued eligibility of the disabled individual, while at the same time, improving the quality of the individual’s life and supporting the independence of the individual.
- We include a discussion of these issues in every estate plan, with particular emphasis for those clients with a potential beneficiary with special needs.
Estate Administration
When a loved one fails to do the appropriate advance estate planning and illness strikes, we can guide you through the complexities of the Massachusetts Probate Court, minimizing the time, expense and level of stress involved.
We assist families with the filing of:
- Probate Guardianships for personal decision-making authority for incapacitated individuals.
- Probate Conservatorships for legal and financial decision-making authority over the income and assets of a protected person.
- Similarly, when a loved one passes away, the Probate of the Will or the Administration of the Intestate Estate can be a daunting task.
- Assistance with Trust Administration can also save considerable time and expense. If a Trust is not properly funded prior to death, Probate is often the result.
- Necessary Income and Estate Tax filings must also be addressed, along with pertinent capital gains tax issues.
The enactment of the Massachusetts Uniform Probate Code has increased the ongoing responsibilities and reporting requirements of court-appointed fiduciaries, making prompt and effective legal representation essential. Sadly, stressful events such as the incapacity or death of a loved one often lead to family conflict. Our sensitivity in addressing these issues enables our clients to have them remain private family matters rather than public probate battles.
Frequently Asked Questions
Not necessarily. Probate is the process of having the provisions of your Will carried out. It is how your assets are titled at the time of your death that determines whether your Will must be probated. Your probate assets consist of those assets that are titled in your name individually, without a beneficiary or surviving joint owner.
Resources
Estate Planning, Elder Law and Probate
Estate Planning Dictionary
2023 Medicaid Basics Summary