Tag Archives: Probate

Choosing a Trustee

Creating a trust can be important for several reasons – a few of which include avoiding probate, protecting assets, and protecting minor children. However, choosing someone as your trustee can be a difficult decision. You must choose someone you trust to make responsible decisions regarding your assets should you become incapacitated and unable to do so yourself. Here are a few of the different types of trustees you may choose to appoint:

Family Trustee

In many cases a family member, such as an adult child, is chosen as one’s trustee. Typically, there is a high level of trust for family members and oftentimes adult children are already responsible for helping out with many financial decisions. Usually a family member will also carry out the duties as a trustee for little or no compensation which can make this a very appealing option.

Co-trusteesLiving Trusts

However, when appointing a family trustee there may be reasons to also designate a “co-trustee.” For instance, if you have any feeling that a single trustee might not consistently make the best decisions possible it might be a good idea to appoint a co-trustee to balance the situation. In this case two signatures must be obtained whenever a decision is made. While this can be a bit burdensome, having a co-trustee can often be a way to ensure that responsible action is taken.

Corporate Trustee

Depending on your situation it may be best to choose an outside party as a trustee. Although this is generally a more expensive option than choosing a family member, appointing a corporate trustee ensures that professional and impartial decisions are made. This option also provides longevity – a corporate trustee is more likely to be around in 25 years, whereas a family member may not.

When creating a living trust there are several options available in deciding who will be your trustee. You must evaluate your individual situation to decide what would make the most sense for you. For help with this process contact Living Trust Attorney Adam J. Tobin today!

Why You Should Create an Estate Plan Today

Estate planning is not only for the elderly. Even if you don’t think you have any significant assets to protect, it could be beneficial to consult an estate planning attorney and discuss your options. If you know anyone who has had to deal with the loss of a loved one who didn’t have an estate plan they will probably tell you, in retrospect, that they wish they had made specific arrangements. There’s a reason why people say “Always be prepared!” Here are some major reasons why you should consider creating an estate plan today:

Avoid Probate

The main reason that many people create an estate plan is to avoid probate. Probate is the process of the administration and distribution of the estate of a deceased person. This legal process is typically carried out according to the person’s legal will. However, if the person does not draft a will the probate court will administer the person’s estate according to state statute. As a result of horror stories in the media of families dealing with probate, most people often want to avoid probate at all costs. Creating an estate plan is an effective solution.

Reduce EstateEstate Planning Taxes

Another good reason to consult an estate planning attorney about creating a plan is to reduce estate taxes and/or state inheritance taxes. Depending upon the individual’s situation, the payment of these taxes can account for a significant loss of an estate. Through simple planning you can make estate or inheritance tax much less burdensome or nonexistent.

Avoid Stress

Many times when people have personal experience, or witness someone, go through the process of dealing with the administration of a loved one’s estate they’re more likely to meet with an estate planning lawyer. Not having a plan in case you become mentally incapacitated or pass away can be overwhelmingly stressful for loved ones to deal with. Creating an estate plan is a proactive way to avoid family feuds and costly court proceedings.

Protect Beneficiaries

One of the main reasons for creating an estate plan is to protect beneficiaries. Beneficiaries could be either minors or adults. When creating an estate plan with minor beneficiaries in mind you should appoint a guardian and trustee to oversee the minor’s finances until they are of age (either 18 or 21 years old, depending on the state in which they live). If the beneficiary is already an adult but has trouble managing money you should create an estate plan which will protect the beneficiary from their own bad decisions.

It’s always good to plan ahead – contact elder law attorney Adam J. Tobin today to discuss the best steps toward creating your own estate plan.

How to Locate a Lost Will

massachusetts-elder-law-attorneyMisplaced wills can be a source of stress and confusion after a loved one has passed away and can cause frustrating legal issues for their heirs. A missing Will could indicate that the deceased had the original revoked or replaced, which can open up an even messier can of worms. Even if you are able to obtain a photocopy or an original will, it may be considered invalid if there are other natural heirs to the estate. Each state has differing rules on photocopies. If you are only able to locate a photocopy, seek out the advice of a lawyer.

–Check for obvious hiding places: under a mattress, between the pages of a book, desks, filing cabinets, stored boxes, cars, and wall or floor safes. Safes are often located in closets or garages and are usually found in places that are not obvious to the casual viewer.

–Search the house for a safe deposit box key. Keys are over-sized and are often aluminum or silver in color; they will also often have “Do not duplicate” written on the face of the key.

–Locate the bank or savings papers of the deceased and call the institution to see if there is a safe deposit box that is rented in the name of the deceased. You may need to obtain a court order to gain access to the box if you’re not listed on the signature card.

–Check the belongings of the deceased to see if there are any cards, canceled checks, or correspondence from a lawyer. Call the law firm to see if they drew up papers or referred the deceased to another firm that handles wills.

–Contact friends and business partners of the deceased to see if any of them were there to witness the will signing or if they were involved in discussions about it with the deceased. Address books and email accounts of the departed may have the names of those who they were in contact with regularly.

–Find out if the state you are in required the will to be filed at the courthouse as a public record. If so, call the courthouse and ask for the Probate department to see if you can gain access to a copy of the will.

If you need assistance from a qualified Massachusetts Elder Law Attorney concerning anything from Wills to Nursing Homes, please contact Adam Tobin.

Estate Planning 101

The idea of “estate planning” can be a bit intimidating for some people, which is unfortunate since the main reason of doing so is making sure your loved ones are provided and cared for.

Estate Planning 101

Another misconception of estate planning is that it is only for the elderly, however, if you are a parent with children who will need care and direction, it is better to start planning your estate earlier in case you suddenly become incapacitated or worse.

Estate planning needs to be factored into your overall financial plan, along with your children’s college tuition and your retirement needs in order to be really effective. Your estate consists of all your property, which includes your home, personal property like cars and furniture, and intangible property like insurance, stocks and bonds, bank accounts, and pension and social security benefits.

If you die without a will, your property will still be distributed, and essentially, by not leaving a valid estate plan, state law will end up writing your will for you. So what can estate planning do for you?

Provide for your immediate family

A good estate plan makes sure that your spouse and loved ones are provided for. Couples with children can ensure their education and upbringing is not left to chance. For children under 18 years of age, both you and your spouse should have a will that nominates personal guardians for them. If that is not specified, a court would have to decide where your kids will live and who will make all important decisions for them regarding their money, education, and way of life.

Provide for other relatives who need help and guidance

If you have a family member, such as an elderly parent or disabled child, whose life would become more difficult without you, establishing a special trust fund would be a good way to ensure their future.

Get your property to beneficiaries quickly

By planning ahead, you can make certain that your beneficiaries receive the property you’ve left them promptly and without unnecessary expenses and court interference.

Plan for incapacity

Use living wills and durable powers of attorney to plan for possible mental or physical incapacity; pick someone you really trust to make important health and financial decisions for you in the event that you are incapable of doing so for yourself.

Minimize expense

Estate planning can reduce the expenses associated with transferring property to beneficiaries, such as probate costs, and by reducing these expenses you will be leaving more to your loved ones.

Choose executors/trustees for your estate

By choosing competent executors/trustees, you can save your estate money, reduce the burden on your survivors, and simplify the administration of your estate.

Ease the strain on your family

You can take a lot of the burden off your grieving loved ones by planning ahead for funeral arrangements and other expenses, and by letting your loved ones know how you want your affairs to be handled so they do not have to deal with unnecessary added stress.

Help a favorite cause

Your estate plan can help support religious, educational, and other charitable causes, either during your lifetime or upon your death, and at the same time take advantage of tax benefits designed to encourage charitable giving.

Reduce taxes on your estate

The idea is to get the maximum amount possible to go to your loved ones and designated beneficiaries. Properly planning your estate can help you with that, giving the maximum allowed by law to your beneficiaries and the minimum to the government.

Make sure your business runs smoothly

If you have a small business, the operation could turn to chaos without you there to guide it. A good estate plan can provide for an orderly succession and continuation of your business affairs by spelling out what will happen to your interest in the business.


Consulting an elder law attorney, such as Adam Tobin, could prove very helpful when it comes to planning your estate. Contact Adam Tobin to get helpful advice from a knowledgeable estate planning attorney.

10 Incentives to Write Your Estate Plan Today

Though many people don’t feel as though estate plans are for them, they may not realize how beneficial having an estate plan is. Elderlawanswers.com makes a compelling case for why creating an estate plan is important. Take a look at the following list to understand the value of estate planning, and get started on one with an estate planning lawyer today!

1. Loss of capacity. There is a chance that you could one day become too incompetent to handle your own affairs. An estate plan can designate who exactly you want to take over control via power of attorney.

2. Minors. If you happen to pass while you still have children who are minors, do you know who will raise them? Again, an estate plan can determine your own guardian, and you can avoid a potential court decision.

3. No Will.
How will your loved ones know what assets will be inherited and to whom? Each state has laws of intestacy, which decides the distribution of assets passing on to your heirs in the absence of a will. Creating an estate plan with a Massachusetts estate planning attorney will designate your assets to whom you want and how you want them.
4. Blended families. Multiple-marriage families can have children that may not be treated as you would like if you pass. Estate plans can select what goes to your current husband or wife, and to the children of prior marriage(s).

5. Special living_trust_and_estate_planNeeds Children. If you have a child with special needs, not having an estate plan could risk their disqualification from Medicaid or SSI benefits in the event of your passing. In this instance, they would have to use their inheritance to pay for the care they receive. Estate plans, with MA elder attorney supervision,  allow for a Supplemental Needs Trust, which will allow special needs children to continue to remain eligible for government benefits, while simultaneously using your trust assets to pay for other expenses that are not covered.

6. Keeping assets within the family. Without an estate plan, the spouse of your child may end up with your money in the event your child passes away. Additionally, if your child gets a divorce, half of your own assets after your passing could be given to the ex-spouse. Elder lawyers specialize in creating estate plans where you can prevent both scenarios in your plan, and assure that your assets remain within the family, and potentially pass on to your grandchildren.

7. Financial security. In the event that you pass on, will your surviving children or spouse be able to financially survive? The current standard by which your family lives may be unable to be maintained without a plan specifying income replacement through life insurance. This can be prevented by an estate plan!

8. Retirement accounts. Your IRA or other retirement account beneficiary in the event of your death may not reflect your wishes, and large tax consequences for your heirs can result. Make a plan with a Massachusetts estate planning attorney and select your ideal retirement account beneficiary.

9. Business ownership.
If you are a business owner and decline to name a successor with an estate plan, you can risk your family loosing control of your business. You can name who will resume control of the business after you pass with your plan.

10. Avoiding probate. An estate plan eliminates the delays, excess fees, and publicized asset records. You can structure your estate plan with the assistance of an estate planning attorney to avoid probate entirely.

Convinced yet? Contact Adam Tobin and get started on creating an estate plan today.

Source article here.

Do you need an estate planning attorney?

Do you need a Massachusetts Estate Planning Attorney?Estate plans are both relevant and necessary if any of the following apply to you:

  • If it matters to you who inherits your assets
  • The future of your health care should you fall ill or otherwise incapacitated
  • Desire to avoid the inconveniences and hassles of probate court

The use of an estate plan is no longer associated for the upper classes looking to pay less taxes. Should anything happen to you, a probate court judge can have control over the fates of your assets and any children you may have under the age of 18 – unless you have an estate plan. The systematic process involved with probate is both financially draining and lengthy: a situation that can be avoided for your loved ones if you have an estate plan.

For these reasons, an estate plan is very beneficial. However, yours must be constructed correctly. An estate plan that is old, filled with loopholes and other potential issues for compromising your assets can be easily avoided by hiring an estate planning attorney. With the increasing trend of “do-it-yourself” trust or will-template websites, this can be a risky alternative to a very  important document. You need an estate planning lawyer to provide individualized legal advice for not just your estate planning, but for trusts, applicable laws for estate taxes, and probate.

Make the investment in your loved ones future, and assure that your wishes are followed through. Contact a Massachusetts estate planning attorney like Adam Tobin today to get you started on an estate plan or will that is right for you!

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Finding a Probate Lawyer

The unfortunate need for a probate lawyer is typically due to death of a relative or loved one. Although this is a difficult time, your efforts should go into finding a good attorney.

So what type of probate lawyer do you need? There are two overarching types that you should be aware of: those that handle administrative duties, and those who will represent clients in court. There is the instance where a lawyer can practice both – but as a general rule, they will sway in one direction. If you are in a suit over an estate, you should look for a litigator: if not, a transaction attorney may be your best bet. An elder lawyer with expertise in trusts or estate planning will be skilled in these situations.
You’ve determined that you need an elder attorney, and even understand which one you should get. Now, how do you find them?

Do some research – start by asking friends and family. This is a trusted source for referrals, as they will have first-hand experience on a suitable lawyer. Then, do some internet searches:  make sure that you read comments and reviews to gain some insight on the elder lawyer.

Once you’ve come up with a list, follow these steps to come up with some appropriate finalists:

1. Check the practice website for biographical information, including specialties, and probateeducation.
2. Contact the state bar to determine whether or not they are in good standing.
3. Check the membership directory of local, state, and national associations. Do you see a listing for your candidate?
4. Look for individuals with practices located in the same area.
5. Ask for references.

When you are about to make a selection, make sure to factor in your instinct to your decision. It’s important to feel a connection with your lawyer, as chances are you will be embarking on an emotional journey – and they will be at your side. Make sure to contact elder lawyer Adam Tobin today to see what he can do for you.

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Paying your Estate Taxes

If you have done everything possible to minimize any estate tax liability and ultimately still owe estate tax, the question that often arises is “what is the best way to pay the estate tax?”

One of the most important goals of estate planning is to provide for sufficient liquidity in a decedent’s estate.  In addition to probate costs, funeral expenses, legal fees and debt that may come due at death, the federal estate tax is generally due nine months after the date of death.  Without liquidity in the estate, the executor and the heirs of the estate may need to sell illiquid assets such as real estate, or liquidate marketable securities in an unfavorable market, such as we are experiencing now, to raise cash within a short period of time.

I will explore some funding options for paying the federal estate tax:

  1. Borrow money to pay the estate tax liability: Most banks and financial institutions will provide an individual or an estate loan as long as there is sufficient collateral (estate assets) against the loan.  If the estate tax liability is $1,000,000, you may be able to get a loan for the $1,000,000 estate tax liability, but it comes at a price… large payments of interest.
  2. Selling estate assets to pay the estate tax liability: This is the often the most logical choice to fund the liability when no formal plans have been made to pay the tax.  It can, however, have drastic financial consequences.  On the same $1,000,000 estate tax liability, the executor or trustee would need to sell $1,000,000 of the estate assets to pay the tax.  The problem with this approach is that you may be forced to sell property and securities possibly at depressed values.  Housing values and investment portfolios have taken a severe beating over the last few years.
  3. Use discounted dollars: By setting up an Irrevocable Life Insurance Trust (ILIT) with crummy provisions, you could fund the potential $1,000,000 estate tax liability in a more cost efficient manner.  For most clients, it would work like this:  You and/or your spouse would set up the ILIT and fund it with annual gifts of $13,000 each totaling $26,000 per year.  These gifts are gift tax free.  The life insurance death benefit is income tax free.  The trust, because it is outside of your estate, is estate tax free.  The trustee would purchase an insurance policy on one or both spouses and use the annual gifts to fund the premiums.  For example, a couple, both age 70 and in average health, gifts $26,000 per year could allow the trustee of the ILIT to purchase a life insurance policy with a death benefit of $1,250,000.  This death benefit would be income and estate tax free as it would be owned by the trust and  outside of their estate.  So in this situation, if both spouses died at age 90, they would have paid $520,000 ($26,000 x 20) and the death benefit would be $1,250,000.  Thus they have funded their estate tax liability and saved $730,000.00.

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How a Living Trust protects the Grantor in the event of incapacity

Advice on Elder Law trust in Massachusetts.Revocable Living Trusts have become popular for probate avoidance and maintaining private information about assets and loved ones.  In addition to these two very important features, many people may not fully understand the living trusts protective power in the event the grantor, the one who establishes the trust, becomes unwilling or unable to manage the trust, often due to incapacity.

The grantor of a living trust is most commonly named the trustee of the trust.  During his or her lifetime the grantor, acting as trustee, continues to make his or her own decisions regarding the management of the trusts’ assets.  The trustee manages the trust property in accordance with his or her own wishes and also for the benefit of the beneficiaries of the trust, usually a spouse or children.  A very common question arises when I meet with clients to discuss utilizing a living trust:

What happens to my Living Trust if I become incapacitated?

A benefit of a properly drafted Living Trust is that the grantor can name co-trustees, or successor trustees to simply step into the shoes of the grantor in the event the grantor is unable to serve as trustee.  This helps to insure the grantor’s continuity of asset management.  Assets held in a Living Trust can continue to be held and invested as the grantor desires even after the original trustee (often the grantor) has been replaced by a successor trustee. Moreover, a change of trustee due to the original trustee’s death, incapacity or resignation does not cause a delay in the successor trustee’s authority to manage the trust assets.

In summary, a Living Trust allows the grantor to plan for the possibility of his or her own disability or incapacity and to chose their own successor trustee.  Otherwise, in some cases, a person who becomes unable to manage his or her own assets and make financial decisions on their own behalf may need to have a court appoint a conservator or guardian of his property to act for him. Not only is this a clumsy and comparatively expensive process, but it may even result in the court’s appointment of a stranger as the conservator or legal guardian if the court is not satisfied that any of the incapacitated person’s relatives would make a suitable fiduciary.  The result is that the property owner’s assets will be managed by someone who does not know the owner, their investment preferences, their values, or what their relationship with various family members may be.

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Once I execute my Trust do I need to fund my Living Trust?

In order for the revocable trust to eliminate probate, it is imperative that all family assets be transferred into the trust prior to death. Unfortunately, a large number of people go to the expense of forming a revocable trust but never actually fund the trust during their lifetime.

Funding the trust simply requires transferring legal title from husband and wife into the name of the trust. For example, if John and Mary Smith are funding their revocable trust, they will substitute their existing title to their assets from “John Smith and Mary Smith, husband and wife” to “John Smith and Mary Smith as Trustees of the Smith Family Trust, Dated March 24, 2009.”

For real estate, title is changed by executing and recording a deed. Whereas bank accounts and brokerage accounts can be transferred by simply changing the name on the accounts to reflect the trust as the new owner. This can be done by completing a new account application and assignment paperwork from the particular bank or brokerage house. Shares of stock and bonds in registered form are changed by notifying the transfer agent for the issuing company and requesting that the certificates be reissued in the name of the trust, using the transfer agent’s paperwork and protocol.  Many other types of property can be transferred by a simple written declaration called an Assignment.

If you have questions on trust funding options or estate planning call me for a free consultation.