836 Washington Street | Braintree, MA 02184 | 781-848-0040

How a Spouse can Derail your Estate Plan

In Massachusetts, a surviving spouse can claim a fixed portion of the decedent’s estate (referred to as an elective share), and in so doing, circumvent the decedent’s wishes. Most commonly, this scenario occurs when the decedent has been married more than once and does not want to provide for their current spouse in their estate plan.

Consider the following example: Pat is married to Kelly and they have no children. Kelly is Pat’s second wife; he was previously married and has two children from his first marriage. Pat passes away leaving a Last Will and Testament (“Will”), which states that he wants the vast majority of his property to go to his children. Kelly is upset about the amount of the share left to her in Pat’s Will.  She thinks she should be entitled to more because of how long she was married to Pat, and feels it is unfair for the children inherit the majority of the estate. When Pat’s estate is probated and his Will is taken to the Court, Kelly can file a waiver of Pat’s Will and elect to take get the amount she is entitled to under Massachusetts law.

How much is Kelly entitled to under Massachusetts law? Unfortunately, the answer to this question is not a simple as many heirs, attorneys, or even surviving spouses would like. In the scenario above, Kelly would be entitled to an interest in 1/3 of Pat’s personal and real property. To the extent that the value of the 1/3 exceeds $25,000, Kelly will receive $25,000 outright, the remainder of her 1/3 share to be held in trust. Kelly would have a life estate in the 1/3 of the real estate. In other states, like Florida, Kelly would simply be entitled to 1/3 of Pat’s property – a much simpler calculation. In Massachusetts, the statute for determining the value of the surviving spouse’s elective share is so needlessly complex, that it often results in a disastrous situation for the decedent’s estate.

Elective shares commonly result in lengthy and expensive litigation which drains funds from the estate and reduces the amount of inheritance the decedent’s loved ones receive. In addition to the financial burden, litigation over elective shares leads to major interpersonal problems, sometimes ruining family relationships.

Lane, Lane & Kelly is experienced and well-versed in litigation related to spousal elective shares. Additionally, we can create an estate plan for you that will eliminate the risk of your estate being challenged and litigated. Elective shares are just one potential pitfall that can occur when your property is being distributed to your loved ones after you pass away. We can help you keep your assets intact and assist you in preventing any turmoil among your family members.

If you would like to create an estate plan or discuss this topic in more detail, please call our office 781-848-0040 to schedule a free consult.

Lottery winners in Massachusetts are often surprised when they go to claim their prize and are then asked by the lottery commission to pose for a photograph and disclose their identity to the public. Most big winners want to conceal their identities from the public and unfortunately, most states – including Massachusetts – do not allow winners to claim prizes anonymously.

However, in Massachusetts, there is still a way to maintain your anonymity when you claim your prize. Winners can establish a trust and have a trustee claim the prize in the name of the trust. Most often, an attorney is hired by the winner to create a trust, and that same attorney also serves as the trustee and claims the prize so the winner can remain anonymous.

Lane, Lane & Kelly, LLP has experience representing Lottery winners of large prizes, including establishing trusts and serving as trustee to claim winnings so that winners can obtain their funds anonymously. Contact our office (781) 848-0040 for more information on establishing a lottery trust to ensure your privacy, and estate planning documents to protect your assets, and provide security for you and your loved ones.

Paul Bella, Esquire

This blog is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By reading this blog you understand that there is no attorney client relationship between you and Lane, Lane & Kelly, LLP.

With the spread of the novel coronavirus (COVID-19), and the abundance of fear and uncertainty that has come with it, many people have questions about creating estate plans or modifying their current estate plans. There is a common misconception that estate planning documents only concern what will happen with your property after you pass away. Considering the potentially tragic health outcomes that can result from contracting the coronavirus, it is not a bad idea to consider how you want your property distributed after you are gone. However, proper estate planning also includes the implementation of documents that will become effective while you are still alive. Among those living documents are the Health Care Proxy, HIPAA Release, and Advanced Directives or Living Will.

The Importance of Having Health Care Documents During the Pandemic

In the midst of a health crisis such as a pandemic, it is important to execute or update health care documents. Under Massachusetts law, a Health Care Proxy is a document appointing a health care agent to make decisions for you in the event that a doctor determines you lack the ability to understand and appreciate the nature and consequences of health care decisions. A HIPAA Release form allows the family members and loved ones named in the document to access your protected health information in the event that you are hospitalized. Finally, the Advanced Directives or Living Will allows you to state your wishes and preferences for your end-of-life care. However, in Massachusetts, Living Wills are not officially recognized and are therefore not binding. For that reason, we often incorporate our clients’ end-of-life wishes in their Health Care Proxy. Most often, those wishes include the desire to not have their life artificially prolonged in the event that a doctor determines that they have no chance to recover. At a minimum, your estate plan should include a Health Care Proxy and a HIPAA Release. If you have a Health Care Proxy, you should make sure that it is up to date, and that you still want the people you named to be your health care agent, and that they are still available to do so. If it has been several years since you executed a Health Care Proxy, you may want to consider executing a new one.

Of the documents listed above, the Health Care Proxy is the most important one to have. In the event that you are medically incapacitated, a Health Care Proxy names a person you know and trust to automatically have the authority to make medical decisions for you, in accordance with your wishes that are stated in the document. The person you name in the document becomes your agent automatically in the event of your incapacity – they do not have to go to court and be appointed by a judge. If you do not have an executed Health Care Proxy, one of your loved ones will have to petition the court to become your appointed guardian. The process to have a guardian appointed is needlessly lengthy and expensive – and it can be avoided by executing a simple document. Having a Health Care Proxy is a positive step towards ensuring your health and safety in the event of a catastrophe, but more importantly, it makes things much easier for your loved ones.

The Impact of the Pandemic on your Current Health Care Documents

One of the more concerning threats of the coronavirus is that people sometimes end up being intubated and placed on ventilators. I have spoken with clients who have expressed concern about the impact of this threat on their health care documents, and many have wondered if there should be specific language in their documents to address their concerns.  Additionally, some people are worried that if they have language that they do not want to have their life artificially prolonged, that a doctor will pull them off a ventilator, or will deny them a ventilator. In my opinion, the issue is not so much the drafting of the language, as much as what the clients wishes are.

As stated above, most people state their desire to not have their life artificially prolonged in the event that a doctor determines that they have no chance to recover. Technically, this language shouldn’t have any special impact or be interpreted any differently in the case of coronavirus. In other words, if you have this language in your health care documents, doctors should not take you off a ventilator if you have coronavirus unless they believe you have no hope of recovering. A person with coronavirus will likely have the opportunity to state their wishes without the doctor having to defer to the health care agent that the principal appointed in their Health Care Proxy. Now, if you have specific wishes that you want to explicitly state in your health care documents regarding the coronavirus, you can absolutely do so. However, the most important estate planning you can do during the pandemic is have an up to date Health Care Proxy and a HIPAA Release, along with an updated Will, to make life easier for your loved ones in the event that tragedy strikes.

If you have any questions or concerns about executing health care documents or modifying your current ones, please contact our office. Telephone: (781) 848-0040

Paul Bella, Esquire

This blog is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By reading this blog you understand that there is no attorney client relationship between you and Lane, Lane & Kelly, LLP.

Our duties on behalf of the lender require that we examine the title to the premises. In addition, under the provisions of Massachusetts General Laws, Chapter 93, Section 70, we will also certify title to the premises you are buying. This statute states in part:

“In connection with the granting of any loan or credit to be secured by a purchase money first mortgage on real estate improved with a dwelling designed to be occupied or to be occupied in whole or in part by the mortgagor, the mortgagor is required or agrees to pay or be responsible for any fee or expense charged or incurred by an attorney acting for or on behalf of the mortgagee in connection with the rendering of a certification of title to the mortgaged premises such certification shall be referenced to the mortgagor and to the mortgagee.” (more…)

Real estate title insurance very simply is an insured statement of the conditions of one’s title or ownership rights to a certain piece of real estate. The policy guarantees that the property being purchased or mortgaged is free from undisclosed liens or rights and it guarantees additionally that any confusion as to rights of ownership will be resolved in favor of the party owning the real estate or the title insurance company will be liable for loss in value to the policy holder up to the policy limits.

A buyer purchasing real estate is offered the opportunity to purchase an owner’s policy of title insurance by the settlement agent, attorney, escrow company or title agent conducting the real estate closing. For example, you decide to purchase a house in Boston and are obtaining a mortgage to help you finance the purchase from a bank or mortgage company. That institution will require an examination of the title to the property and have the party reviewing the title issue to them a lender’s policy of title insurance insuring that the property is or will be owned by the purchaser and that there are no defects, liens or encumbrances on the property which would adversely affect the marketability of its mortgage. (more…)

Our duties on behalf of the lender require that we examine the title to the premises. In addition, under the provisions of Massachusetts General Laws, Chapter 93, Section 70, we will also certify title to the premises you are buying. This statute states in part:

“In connection with the granting of any loan or credit to be secured by a purchase money first mortgage on real estate improved with a dwelling designed to be occupied or to be occupied in whole or in part by the mortgagor, the mortgagor is required or agrees to pay or be responsible for any fee or expense charged or incurred by an attorney acting for or on behalf of the mortgagee in connection with the rendering of a certification of title to the mortgaged premises such certification shall be referenced to the mortgagor and to the mortgagee.” (more…)

THE FOLLOWING INFORMATION IS INTENDED ONLY TO GIVE A BRIEF DESCRIPTION OF THE THREE COMMON WAYS OF HOLDING TITLE AND IS NOT PROVIDED FOR THE PURPOSE OF ADVISING YOU HOW TO TAKE TITLE. IF FURTHER INFORMATION IS DESIRED ABOUT CREDITORS’ RIGHTS AGAINST THE TITLE, ADVANTAGES AND DISADVANTAGES WITH RESPECT TO ESTATE PLANNING AND OTHER PRACTICALITIES, YOU SHOULD SEEK LEGAL COUNSEL FROM YOUR ATTORNEY OR RETAIN AN ATTORNEY FOR ADVICE IN THESE MATTERS.

In order to properly prepare the mortgage documents we require information from you as to how you intend to take title to the real estate.

The three most common ways two or more persons may hold title to real estate are: TENANTS IN COMMON, JOINT TENANTS or as TENANTS BY THE ENTIRETY (tenants by the entirety is only available for married couples.) (more…)

INSURANCE. At the time of closing, please bring with you a homeowner Fire and Extended Coverage insurance policy or binder for such insurance either in an amount at least equal to the total of all new mortgages on the property or 100% of the replacement cost of all insurable buildings and other improvements on the land. IF YOU ARE GOING TO RELY ON THE 100% REPLACEMENT COST AMOUNT AS SUFFICIENT INSURANCE, THEN THE POLICY OR BINDER MUST STATE THAT 100% REPLACEMENT COST IS IN EFFECT. The insurance policy or binder must name all of the persons who will hold title to the property. The mortgage clause adding the mortgagee’s insurable interest to all policies MUST BE WORDED in accordance with the instructions listed in your commitment letter issued by your lender.

Your insurance agent MUST fax or deliver to our office a copy of a binder for such insurance along with a receipt showing that the first year’s premium is paid in full, at least three (3) business days prior to closing. (more…)

If this is your first home purchase, or perhaps you haven’t purchased a new home in a while, the process may seem confusing. We hope that our office can make the entire purchase process easy and enjoyable for you. There are a few things to remember.

First, understand that the lender’s closing attorney, and this includes our office if we are representing your new lender, represents the interests of the lender. Therefore, it is not the responsibility of lender’s counsel to advise you on your rights and obligations regarding your new home purchase. Because of this, we highly recommend that you retain your own attorney to represent your interests in this process. Our office can represent you, even if we are handling the closing for your new lender, for a reasonable fee and give you the comfort you need to proceed confidently toward the purchase of your new home. Some of the services we provide when representing buyers are: (more…)

As you may know, our office represents your lender in matters relating to your request for a mortgage loan in order to purchase real estate. We have commenced an examination of the title and have ordered necessary information to complete the closing.

When these matters are completed and reviewed by our staff we will notify you to arrange a time to close the loan. We will also advise you of any funds you may need to complete the transaction. You must bring CERTIFIED or BANK CASHIER’S CHECKS made payable to our firm for these funds. In addition, you must bring a valid drivers license or passport with you to closing for proper identification. We cannot close your transaction without this. Please do not forget as this is very important. (more…)