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Legal News: A Well Executed Estate Plan.......

An "estate" consists of all of the items a person owns. These can include cars, bank accounts, retirement accounts, furniture, real estate, and life insurance. An "estate plan" is the method in which the estate is passed on to the next generation.

  1. Will: a will or testament is a legal document by which a person expresses their wishes as to how their property is to be distributed at death. If you do not have a will, the state will determine how your property is distributed. A will also appoints an executor to carry out your wishes and manage the estate until its final distribution. In the event of minor children, a will is especially important because it allows you to appoint a guardian for them. A will only covers probate property. Joint owned property, property in trust, life insurance proceeds and property with a named beneficiary, such as IRAs or 401K plans, all pass outside of probate and won't be covered under a will.
  2. Trust: A trust is an arrangement that allows a third party (trustee) to hold assets on behalf of a beneficiary. The most common reason a trust is established is to avoid probate (a lengthy and costly process whereby the will is "proven" in a court of law).  There are several types of trusts and each has different benefits. One type of trust will terminate when you die and any property in the trust passes immediately to your beneficiaries. This saves your loved ones both time and money. Other types of trust can result in tax advantages for the donor and the beneficiary. Some trusts may be used to protect property from creditors or help the donor qualify for nursing home benefits. Unlike wills, trusts are private documents and only those individuals with a direct interest in the trust need know of trust assets and distribution. Provided they are well drafter by an experienced estate planning attorney, a trust will be continuously effective even if the donor dies or becomes incapacitated.
  3. Power of Attorney: A power of attorney is a legal document you can use to give someone else the authority to take specific actions on your behalf, such as signing your checks to pay your bills or selling a particular piece of real estate for you. A durable power of attorney remains valid and in effect even if you become incapacitated and unable to make decisions for yourself. A durable power of attorney allows a person you appoint (attorney-in-fact) to step in and handle your financial affairs. If a power of attorney document does not explicitly say that the power is durable, it ends if you become incapacitated. In the event you don't have a durable power of attorney, you must go through a court process whereby a conservator or guardian will be appointed. This process takes time, costs money, and the judge may not choose the person you would prefer. Under a guardianship or conservatorship, your representative may have to seek court permission to take planning steps that he or she could implement immediately under a simple durable power of attorney.
  4. Medical Directives: A medical directive (also known as an advanced directive) may encompass a number of different documents including a health care proxy, a durable power of attorney for health care, a living will, and medical instructions. These documents are written legal instructions regarding your preferences for medical care if you are unable to make decisions for yourself. Both a health care proxy and a durable power of attorney for health care designate someone you choose to make health care decisions for you if you are unable to do so yourself. Advance directives also guide choices for doctors and caregivers if you're terminally ill, seriously injured, in a coma, in the late stages of dementia or near the end of life. A living will spells out medical treatments you would and would not want to be used to keep you alive, as well as other decisions such as pain management  or organ donation.
  5. Beneficiary Designations: Most retirement plans, annuities, and life insurance policies let you decide what should become of your assets in the event of your demise. They do this by asking you to designate  beneficiaries. Although not necessarily a part of your estate plan, at the same time you create or tune up your estate plan, you should make sure your retirement plan beneficiary designations are up t0 date. If you don't name a beneficiary, the distribution of benefits may be controlled by state or federal law or according to your particular retirement plan. Some plans automatically distribute money to a spouse or children. Your financial institution's inability to identify could result in a delay in your intended beneficiary receiving the assets and could also cost your beneficiary legal fees if it becomes necessary for the courts to decide who the beneficiary is. The only way to control where the money goes is to name a beneficiary.

If you need help in planning your estate please call Alexander at 508-660-0331 today and get started. Or call for a free consultation. But don't delay.

Legal News: Special Needs Trust

The importance of estate planning when you desire to provide for a disabled loved one after your death Whether it be your child, your sibling, your best friend, or any other disabled individual, if you want to leave some or all of your assets to a disabled individual to ensure they are cared for after your passing and they are receiving benefits of any kind, there are some things you need to know. If planning is not done, or done properly, the individual you are trying to provide for risks losing some or all of the benefits they may be receiving. While you may have the best of intentions, leaving any assets or funds directly to the individual can create a host of problems, such as disqualification of services, programs, and benefits, such as healthcare, housing, and social security, to name a few.

While you may know that many of the services and programs your loved one is involved with are income and asset eligible, often times individuals do not stop to think that if they provide for the individual in their last will and testament, or name a disabled individual as a beneficiary of any accounts, it can do much more harm than good. This of course does not mean that you should not provide for the disabled individual, it just means you want to plan ahead, to make sure your estate planning documents are set up properly. Oftentimes when a disabled individual receives an inheritance, it is not enough for the disabled individual to privatel pay for all the services they are receiving, however it is too much of an inheritance for them to continue to qualify for services and benefits. There are several ways to go about providing for the disabled individual and ensuring that they still get their benefits.

A Special Needs Trust can be created. This allows the individual to still receive services yet have a special needs trust or supplemental Needs Trust as they are sometimes called, to provide for things that they need in addition to what they are receiving.  So instead of leaving funds directly to the individual you can bequest funds to the Special Needs Trust, or make a Special Needs Trust the beneficiary on an account.  Another option is for the disabled individual to have a 529a account.

The ABLE Act provides for disabled individuals to have an account to save for future needs. It is similar to a 529 College account for typical individuals. This office was recently contacted by a Foxboro resident who reached out to us because her ex-husband passed away and left their disabled daughter half of all of his assets and she individually was the co-beneficiary of his Thrift Savings Plan and pension.  The disabled child is in a residential facility and receives many different benefits from the state and other agencies. As referenced above, this is a case where the individual was not left enough money to private pay for the rest of her life but was left enough to disqualify her from many programs. In addition, half of the estate property is due to be inherited by her as well. This has caused a lot of problems, even though dad had the best of intentions to provide for his child. There are still options, such as a self-settled Special Needs Trust, where the individual themselves, create Trust, but the situation is certainly less than ideal, it has caused the mother and family a great amount of stress, time, and money, to address their daughter's inheritance...all of which could have been avoided with proper planning. We cannot stress enough the importance of planning ahead when preparing to provide for disabled individual after your passing. It will save a great amount of time, effort, and expense and in addition, it will give you the peace of mind to know your disabled loved one will be provided for just as you had intended.

Legal News: What you need to know....Road Safety Law in Massachusetts

We wanted to send a quick reminder about an important new road-safety law in Massachusetts. As you may have heard, drivers are now prohibited from holding a cell phone or other hand-held mobile devices while operating a vehicle . The new law went into effect on February 23.

Under the new law:

  • You can operate an electronic device if you are stationary and not in an active travel or bike lane
  • You can use a device while driving, but only if it’s in hands-free mode
  • You can use a device to help with navigation if it’s appropriately mounted
  • You can make phone calls if you’re able to do so without holding the phone, using mobile technology
  • You can use a device in an emergency
  • You can use hands-free technology such as Bluetooth, and you can “single tap” or “swipe” your device to activate or deactivate the hands-free mode

Violations:

  • Beginning April 1, police will issue tickets with a $100 penalty for first offense
  • A second violation carries a $250 fine, and a third or subsequent offense carries a $500 fine
  • A third or subsequent offense will count as a surchargeable incident on a driver’s insurance
  • Drivers who commit multiple offenses must complete an educational program focused on distracted driving prevention

Junior Operators
Existing Massachusetts state law prohibits “junior operators,” or drivers between the ages of 16½ and 18, from using an electronic device while driving except to report an emergency. A junior driver caught talking on a phone or using an electronic device while driving will now be subject not only to fines, but to loss of license ranging from 60 days to a year, depending on the number of offenses.

Legal News: Why You Must Check Your Estate Plan EVERY YEAR....

Why You Must Check Your Estate Plan Every Year

Revisit for Your Welfare

Certain things happen every year: holidays, birthdays, anniversaries…and estate plan reviews.

That’s right! Checking your estate plan is worth turning into an annual event. Having an up-to-date estate plan is as much of a gift as anything you’d give a loved one on a special day. By ensuring your plan reflects any changes in your life, you can prevent conflicts down the road while protecting the people and causes you care about most.

Mark a specific date on the calendar — maybe close to tax time, when finances are on your mind — and put a reminder in your phone. Then, when the day arrives, revisit these eight things:

8 Areas to Consider

  1. Review your will or trust to ensure it reflects your current situation as well as any tax law changes.
  2. Evaluate your life insurance policies to make sure there is adequate coverage for your loved ones. If you no longer need a policy, consider using it to make a gift to support the Foundation.
  3. Review the beneficiary designations of any life insurance policies and retirement plans so they coordinate with your overall estate plan. If you want to remember the Foundation in your plan, consider retirement plan assets. They are one of the most highly taxed assets to leave your family, but come to a nonprofit tax-free.
  4. If you are nearing retirement, talk with a financial advisor to map out strategies for maximizing your savings.
  5. Update your health care power of attorney to ensure that someone you trust makes medical decisions on your behalf in the event of an illness or disability. You should also create or update your living will to protect your wishes regarding prolonged health care and end-of-life decisions.
  6. Formalize your financial power of attorney to ensure someone will handle your financial decisions if you become unable to do so.
  7. Encourage your adult children to create or update their own estate plan. Remind your parents to review their plans so their financial intentions are followed and you know what steps to take in the future.
  8. Call Alex Matulewicz at 508-660-0331 to schedule your free consultation today!

Legal News: My friend put my unflattering photo of me on the Internet, CAN SHE?

IT DEPENDS. If you are famous, your friend can get away with placing your badly-posed photo on the Internet. However, if you are a private individual, you can try to assert your right to privacy. If your friend or someone else is actually benefitting from this posting, financially that is, then it might be a different story. The question is whether you have the right of publicity, which limits the commercial use of one's name, image, likeness and/or identity. The basic idea is that you can almost always stop others form using your name, likeness or identity for commercial gain.

Rights of publicity are based on state laws, which vary greatly from state to state. Most states recognize claims based on the right of publicity through statute, common law or both. Many of these laws extend the right of publicity to all people, not just celebrities or other famous individuals. The basic concept of these laws is this: You cannot use someone's name, identify, likeness or personal without consent in a way that causes harm. This is especially unlawful if the person also receives some kind of benefit or advantage based on that use.

It is easy to see whether a person is harmed. If someone puts your picture in an unflattering pose on the Internet, you could be ridiculed and probably even lose your job. But you should also prove that your friend financially benefitted from doing this. For example, did your friend sell the picture or gave it to someone to use as financial leverage against you?

Legal News: Can you Film People in Public?

I saw a man taking pictures of kids playing in the park, swinging on swings, going down the slide, spinning around a merry-go-round, in a public area. IS THIS LEGAL?

YES!

If you are simply walking around with your camera and shooting casually, you generally do not need a permit. You will, however, need a permit if you are filming on public property such as a police station, OR if your filming impacts others and/or the environment.

It is almost always lawful to photograph people in a public place without their consent.

However, you cannot film or take photos of people if they are in a place where they can expect privacy, such as their home, a public changing area, or a toilet.

Moreover, if you follow someone or a group and continue to film them, after a while, they can have a claim against you for harassment or disturbing the peace or even stalking. The situation is different if you are on private property like someone's house. There, the owner sets the rules. You cannot film if the owner does not want you to. If you refuse to go by the property owners' rules, they can order you off their property (and even have you arrested for trespassing if you do not comply).

Police should not order you to stop taking pictures or video, unless instructed by the property owner.

As for recording audio, states have eavesdropping laws, which criminalize recording oral conversations without permission. This has led to numerous charges brought against those recording videos. This is particularly so since videos are almost always not silent. In order to get around these restrictions, try filming without sound.

It is not against the law to record your own conversations with others without their consent, be it face to face or over the phone, as long as you yourself consent to recording it.

However, it is illegal to record conversations between others that you are not participating in.

If you have still have questions, ask Alex and call him at 508-660-0331. It's free advice!

Legal News: Do I Need to Update My Will?

YES!!

Any real change in your life setting, such as new baby, marriage, divorce, death in the family, and a sudden financial windfall, can be the reason for updating your will. The following are some of the reasons to update your will:

  1. People you named are dead.
  2. New people (birth, adoption).
  3. Divorce or marriage.
  4. New state laws. These laws can affect your will directly. This is especially so if you move to a new state.
  5. Change in guardians, personal representatives or trustees.
  6. Children become adults after the age of eighteen.
  7. New job with much higher financial expectations.

Don't delay. It's easy to make changes, all you have to do is call the law office. Call Alex today at 508-660-0331.

You Need a REAL ID to Board All Domestic Flights: Find out how to get one....

The deadline for needing REAL IDs to board domestic flights or access federal facilities or nuclear power plants is coming quick. Massachusetts drivers' licenses and state IDs must be REAL ID compliant by Oct. 1, 2020, when the change to bring state-issued identification in line with federal standards takes full effect.

Here are eight common REAL ID questions answered:

Do I have to get a REAL ID?

No. REAL IDs are optional. If you have a passport, you can use that form of identification to board flights and obtain entry into federal facilities. REAL IDs are not required to drive in Massachusetts.

Who needs a REAL ID?

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You need a REAL ID if:

  • You do not have a valid U.S. passport or passport card; AND
  • You use airplanes as a mode of domestic transportation; or
  • You visit military bases; or
  • You visit secure federal facilities.

Do I need a REAL ID to vote?

No. You do not need a REAL ID to vote.

How and where do I get a REAL ID?

Obtaining a REAL ID requires an in-person visit to an RMV location. You can find those here.

What documents do I need to get a REAL ID?

The requirements are different from a standard ID. 

One must provide any ONE of the following:

  • SSN Card (cannot be laminated)
  • W-2 Form
  • SSA-1099 Form
  • Non-SSA-1099 Form
  • A pay stub with the applicant's name and full SSN on it
  • SSN Denial Notice with passport, visa, and I-94

ONE of the following:

  • Valid, unexpired U.S. passport or passport card
  • Certified copy of a birth certificate filed with a State Office of Vital Statistics or equivalent agency in the individual's state of birth — A Puerto Rican birth certificate will only be accepted for identification if it was issued on or after July 1, 2010. For more information on the Puerto Rican birth certificate law, visit the Puerto Rico Federal Affairs Administration website at prfaa.pr.gov
  • Consular Report of Birth Abroad (CRBA) issued by the U.S. Department of State, Form FS-240, DS-1350, or FS-545
  • Valid, unexpired Permanent Resident Card (Form I-551) issued by DHS or INS
  • Temporary I-551 stamp in foreign passport
  • Unexpired employment authorization document (EAD) issued by DHS, Form I-766, or Form I-688B
  • Unexpired foreign passport with a valid, unexpired U.S. visa affixed — A non-US passport must contain a current visa and be presented with an I-94 Record of Arrival and Departure, unless you have a Permanent Resident Card or other change in status. The I-94 can be either a paper version from U.S. Customs and Border Protection or a printout of an electronic version downloaded from their website at cbp.gov/i94 — For applicable customers who have a Certificate of Eligibility (I-20) or Certificate of Eligibility for Exchange Visitor Status (DS-2019) documentation verifying the applicant's most recent admittance into the United States must be shown.
  • Certificate of Citizenship, Form N-560, or Form N-561, issued by DHS
  • Certificate of Naturalization (Form N-550 or N-570)
  • Re-Entry Permit (I-327)
  • Refugee Travel Document (I-571)

TWO of the following:

Massachusetts RMV- issued documents (can use one from the options below):

  • Current license, Massachusetts ID card, or learner's permit (liquor ID not accepted)
  • RMV-issued correspondence dated within 60 days and received via U.S. mail (including license/registration reminders) 

State/federal/municipal/city/town/county agency-issued documents:

  • 1st class mail dated within 60 days
  • Current MA-issued professional license with photograph
  • Medicaid statement dated within 60 days
  • Current firearms card
  • Jury duty summons dated within 60 days
  • Court correspondence dated within 60 days
  • Property tax for current year
  • Excise tax for current year

Bills

  • Utility bill (electric, telephone, water, sewer, cable, satellite, heating) dated within 60 days
  • Credit card statement dated within 60 days
  • Medical/hospital statement dated within 60 days
  • Cell phone bill dated within 60 days

Lease/Mortgage

  • Current lease/mortgage or similar rental contract

Financial-related documents

  • Bank statement that contains images of cancelled personal checks dated within 60 days
  • W-2 wage and tax statement from immediate prior year
  • Current pension statement (401k, 457, SEP, etc.)
  • Current retirement statement
  • Pay stub dated within 60 days
  • Current SSA statement
  • Current installment loan contract (car loan)

School-issued document

  • Official school transcript for current year
  • Official letter from school (proof of enrollment) dated within 60 days
  • Tuition bill for current year
  • Certified school record for current year

Insurance-related documents

  • Auto insurance policy for current year
  • Renter's insurance policy for current year
  • Homeowner's insurance policy for current year

Alternative Residency Affidavit

  • For applicants under the age of 18 only

What happens after I apply for a REAL ID?

First, you'll receive a temporary, secure paper DL/ID at the facility — but TSA and federal agents will not accept the temporary, paper document. After review and verification of documents have been conducted, your new permanent REAL ID card will be mailed to you within 15 business days.

How much does it cost?

$50, sorry.

Legal News: Social Security Scams.......be aware!

There are many scammers out there trying to get your money.

Please heed the following if you get a call:

Warning Signs

  • You get an unsolicited call from someone claiming to work for SSA. Except in rare circumstances, you will not get a call from Social Security unless you have already been in contact with the agency.
  • The caller asks for your Social Security number — again, something an actual SSA employee wouldn’t do.
  • A call or email threatens consequences, such as arrest, loss of benefits or suspension of your Social Security number, if you do not provide a payment or personal information.

Do's

  • Do hang up if someone calls you out of the blue and claims to be from SSA.
  • Do be skeptical if a caller claims to be an “officer with the Inspector General of Social Security.” Scammers appropriate official-sounding and often actual government titles to make a ruse seem authentic.
  • Do set up a My Social Security account online and check it on a monthly basis for signs of anything unusual, even if you have not yet started collecting benefits.
  • Do install a robocall-blocking app on your smartphone, or sign up for a robocall-blocking service from your mobile network provider.

Don'ts

  • Don’t call a phone number left on your voice mail by a robocaller. If you want to contact SSA, call the customer-service line at 800-772-1213.
  • Don’t assume a call is legitimate because it appears to come from 800-772-1213. Scammers use “spoofing” technology to trick caller ID.
  • Don’t give your Social Security number or other personal information to someone who contacts you by email. SSA never requests information that way.
  • Don’t click links in purported SSA emails without checking them. Mouse over the link to reveal the actual destination address. The main part of the address should end with “.gov/” — including the forward slash. If there’s anything between .gov and the slash, it’s fake.

It's better to hang up and not wait for their spiel than be taken in by what they have to say. The Social Security office will NEVER call you for anything over the phone unless previously connected with a specific person.

Legal News: Wills and Trusts: Rule Against Perpetuities

Copied from the Lawyers Weekly Newspaper 2/10/2020 (This Week's Decisions):

Where a 1956 will devised real property to a congregational church on the condition that it be used as a parsonage or for church purposes, a judgment declaring that the church's title to the property is absolute should be affirmed based on changes to the statutory rule against perpetuities, G.L.c. 184A, S3.

"In this case, decided on summary judgment, a church seeks to sell real estate restricted to church use by a bequest. Our resolution of this appeal requires us to consider the interplay between the terms of a testamentary gift of real property to a charitable entity, the applicable rule against perpetuities, and other provisions of the Massachusetts Uniform Probate Code. We also consider whether a 1989 decision of a judge of the Probate and Family Court has preclusive effect on the issues before us. For the reasons that follow, we affirm the judgment of the Superior Court, in which the judge concluded that a charity's fee simple subject to a right of entry for condition broken became a fee simple absolute as a result of changes to the statutory rule against perpetuities, G.L.c. 184A, S3, as amended by St. 1961, c. 448, S2. ...

"Sara Joy Mayhew (decedent) died testate on March 12, 1956, having executed a will on January 2, 1956. The will provided in pertinent part: 'I hereby give, devise and bequeath the family homestead property (75 South Water Street, Edgartown) in which I now live and all the land on which it stands and adjoining, which I own and the improvements thereon ... to the Congregational Church in ... Edgartown so long as said homestead is used as a parsonage for the minister of said church or the Federated Church or so long as said property is used for church purposes (ental being one of such purposes), but if said homestead property is not so used as a parsonage or for church purposes, I give, devise and bequeath the said homestead property to The Society for the Preservation of New England Antiquities, Inc., a corporation having a usual place of business in Boston.' ...

"On September 26, 2016, the church commenced this action in the Superior Court seeking declarations that (1) it owned the homestead property in fee simple absolute and Historic New England had no enforecable right to the homstead property; (2) Historic New England had no right to impose preservation restrictions on the homestead property; and (3) the church was authorized to sell the homestead property and devote the funds to 'church purposes' either under the terms of the will or by application of the doctrine of deviation or cy pres pursuant to G.L.c. 214, S10B. A Superior Court judge declared that, pursuant to G.L.c. 184A, S7, inserted by St. 1989, c. 668, S1, the church owned the homestead property in fee simple absolute, and he dismissed the remaining requests for relief as moot.