The interplay between inheritance, trusts, and divorce raises a series of issues every estate planning and family law attorney must be prepared to address. What steps should estate planning attorneys take to protect assets prior to or in anticipation of divorce? What is the procedure for courts to value a trust interest for purposes of equitable distribution and/or support payments? What are the recent legal decisions that influence practices related to inheritance, trusts interests, or divorce? Attend this online program to hear expert faculty answer these questions and others that arise when these topics collide.
TURBOCHARGED Estate Planning Practice Upgrade 2019
Leading practitioners and judges analyze advanced next-level issues!
Attorney Sheryl Dennis to Chair MCLE Program on October 25th
Join Attorney Sheryl Dennis for this In-Person Program scheduled for Friday, 10/25/2019, 9:30 am – 4:30 pm,
Courtyard by Marriott, 700 Unicorn Park Drive, Woburn
For more information including registration and agenda. Please visit MCLE.
After the rush of the holidays it’s often a good time to evaluate the more practical aspects of life and make a plan for the future. When people think of estate planning, it is often viewed as inevitable. Like taxes, estate planning is seen as an activity that people undertake because they have no choice.
In actual fact, estate planning can be a way of maximizing your options and planning for a better future. Instead of looking at the major estate planning documents in terms of boxes to tick, here are 5 ways of viewing each document as a way of mapping out a better future.
While the Will gets all the press, it is not the only powerful estate planning tool in the box. The will dictates who will get your property when you die and who will pay your bills, file your tax returns, and who has the power to distribute your property (your executor). These days though, the will is a narrow document that deals only with property in your own name. Many assets pass outside probate, such as joint accounts, retirement plans, life insurance policies and property in trust. The will is excellent for passing on tangible property: family heirlooms, the kinds of things that can’t be divided (like money) and may be fought over. It’s a great way of making sure you bequeath your property as intended and limit the potential for squabbling. It can also be used to appoint guardians for minor children.
2. Durable Power of Attorney
Durable power of attorney appoints one or more people to handle finances and legal matters in the event of incapacity. Doing this in advance prevents delays, squabbling and legal fees in the event that family members have to resort to going to court to be appointed conservator. There are many ways to tailor durable power of attorney to your needs – whether you think it’s best to have multiple people handle your affairs, when power of attorney takes effect (how is incapacity defined), and whether to grant trust powers.
3. Health Care Proxy
A health care proxy is like a durable power of attorney, but an agent is appointed instead to make health care rather than financial or legal decisions. In this case a doctor has to determine when you are incapacitated to the point you can no longer make decisions for yourself. Only one individual can be your health care proxy, so it is very important to educate the person about your health care wishes, your health, and how to communicate with other family members who could give information about your health. It is advisable to name more than one alternates to the principal agent. A medical directive is often needed, and there are is also info out there to help with decisions in the many situations that could occur.
4. HIPAA Release
A HIPAA release is needed in situations when medical providers need to communicate with people, ie family members, about a patient. Without the release the HIPAA law bars medical practitioners from releasing medical information. The health care proxy may not always be available in the event of a medical emergency, and what’s more the health care proxy doesn’t get activated until incapacity is declared. To make sure that vital discussions can be had about a patient with family members and anyone else with relevant information, a HIPAA release should be signed and available.
5. Revocable Trust
A revocable trust is a very flexible tool that can be used to avoid probate, but is also a good way to keep seniors safe and to predefine the passing of your legacy. A revocable trust is sometimes called a “living trust”, in which a person acts as trustee and beneficiary to a trust, often involving family members as co-trustees so the trust can pass smoothly to them when they die. Older adults can involve their children in the trust by naming them as co-trustees or as successor trustees. Amongst other things this means that children can be more active participants in family financial affairs. If there is a problem where a relative with dementia is being exploited they can view the trust’s accounts. Meanwhile the parent doesn’t give up rights or autonomy. Trusts are the “advanced settings” of estate planning tools, which give the power to distribute funds over time or in ways that would be more fitting to the long-term security of beneficiaries.
For more information and help with your Estate Plan please contact Wellesley based Estate Planning Attorney Sheryl Dennis today at 781.489.6776
The Massachusetts Supreme Judicial Court in Curt Pfannenstiehl v. Diane Pfannenstiehl recently came to an important decision regarding how Massachusetts treats spendthrift trusts in divorce. By doing so, the court overthrew the controversial decisions of the lower courts, which would have radically adjusted the way trusts are viewed in Massachusetts. The function of these trusts is to protect beneficiaries from outside creditors and overspending, so it may be a relief to many that the Massachusetts Supreme Judicial Court has chosen to interpret the trust as the settlor intended it, rather than, as the lower courts did, viewing it as “property” that can be divided as a marital asset in divorce.
The case concerned a husband and wife who had an arrangement during the marriage to fund their daily living expenses from the husband’s trust. The husband’s income wasn’t sufficient to cover these expenses, and the wife had given up her career in order to look after the couple’s children. The couple used the trust to fund their lives year to year.
The Appeals Court relied upon the trusts “ascertainable standard” to determine that the trustees were “required” to make distributions to the husband Curt Pfannenstiehl. The reasoning behind this was that the trust was to provide for the welfare of the beneficiaries, and during the marriage, it was used to provide for the family’s living expenses. However the court’s interpretation seemed extreme, given that trustees generally have discretion in their distributions rather than being compelled to pay out. In addition, the Massachusetts Supreme Judicial Court disagreed with the lower courts’ opinion that the trust was a certain interest for Curt, instead viewing it as too speculative to be considered “property”. The Supreme Court also disagreed that Curt was entitled to a quantifiable fraction of the trust (the lower courts valued his interest as a simple 1/11th piece because it was shared with 11 other people) because of the history of how the trustees used their discretion to make unequal payments or no payments at all, and of course, the spendthrift clause, which means the trust isn’t supposed to benefit creditors or ex-spouses in the first place.
It was a good thing for Curt Pfannenstiehl that the courts ruled the way they did. When after trial, he was ordered to pay his ex-wife Diane approx. $1.4 million that he didn’t have and couldn’t earn, he was prosecuted for contempt after he couldn’t pay the judgement, and put in shackles. The Appeals Court reversed based on inability to pay, and the Supreme Court eventually decided not to treat the trust as marital property, but there was a brief moment when the protection the trust had seemed to offer Curt evaporated. Pfannenstiehl v. Pfannenstiehl shows that divorce has the potential to derail even the most painstaking plans parents have made for future generations. Thankfully, even in such a fraught situation, the courts have chosen to acknowledge that the original purpose of such a trust is to provide for future generations, and that this should be safeguarded.
Sheryl Dennis is an expert in matters of trusts and estates. With over 24 years of experience in family law helping families resolve complex issues, Sheryl is the right choice for people looking to navigate sensitive family law issues related to estates, inheritances. Please contact Fields and Dennis today to see how we can help.
When we think of “Undue Influence”, we think of contested wills, families divided and older, vulnerable people exploited by self-interested relatives. Declaring undue influence is often used as a reason to contest a will or estate plan, but there are two ways to consider undue influence in estate planning.
If you’re the one drafting a will or estate plan, it’s important to avoid any ambiguity about your estate planning decisions and who may have influenced them. When you distribute an inheritance in a way that’s uneven, questions of undue influence may be raised, especially if the main beneficiaries of the inheritance are involved in the estate planning process to the exclusion of the others. Things you can do to ensure that your wishes appear crystal clear to others and free of undue influence include getting a formal assessment of your mental capabilities before you draft estate planning documents and making sure family members aren’t present at discussions about your will with your attorney. This last step may need to be so clear-cut that you should avoid being driven or accompanied to your attorney’s office by a family member or loved one benefiting from your will.
If you are a family member that suspects undue influence, there are three things you need to be able to prove: firstly, that the affected family member or loved one was acting in an unusual way when he or she allotted property in the estate plan, secondly that the loved one or family member was frail, old, mentally incapable or in some way vulnerable to influence, and thirdly that the person who is alleged to have been the influencer had the opportunity to do so. In general the burden of proof in this situation is on the person or people who are asserting undue influence. Sometimes it works the other way, for example if the alleged influencer had a fiduciary relationship with the relative or loved one. This could
include a child, spouse or agent under a power of attorney.
Some signs of undue influence include evidence of coercion or harassment, and also attempts to isolate the loved one or relative from other family members or friends.
If you suspect undue influence or want to protect a will from being contested on grounds of undue influence, contact Attorney Sheryl Dennis. Attorney Dennis is highly experienced in the areas of estate planning and elder law. She can help you draft a will in which your wishes are clearly outlined or discuss with you the best way to challenge suspected undue influence. Please contact Fields, Dennis & Cooper today, to see how Attorney Dennis can help.
Harper Lee, legendary and reclusive author of the literary classic, “To Kill a Mockingbird,” passed away in February 2016 at the age of 89. Though Lee fiercely maintained her privacy, she did publish another novel before the end of her life entitled “Go Set a Watchman.” As a result of her literary success, Lee reportedly made $3 million per year in royalties from book sales—just from “To Kill a Mockingbird.” Her estate may be worth an estimated $35 million or more.
What makes Lee’s estate planning a unique case study is, first, that she was not married nor did she have children. Therefore, no apparent, direct heirs exist. However, she did have family, who are still living, including a nephew. Most likely, the estate will be awarded to them. The second part of Lee’s unique and fascinating estate planning is that we don’t know if she set up trusts for her family. Wealthy people often set up trusts for family members, because trusts are kept private. A trust is a secure way to keep one’s finances and who receives the person’s assets after death private. For the author, who was named number four on TIME’s Top 10 Most Reclusive Celebrities list, she would doubtless have wanted to keep her affairs out of the public eye. We have no way of knowing whether Lee got her affairs in order before her death, and her case was certainly one in which not preparing an adequate estate plan would have been against the author’s wishes in life.
According to the American Academy of Estate Planning Attorneys, “A trust is the best way for celebrities and others to maximize their privacy. A will is a public document. Assets titled in the name of the individual are disclosed in a probate proceeding. But, if a trust is funded during lifetime, neither the assets owned by the trust, nor the terms of the trust, become public.” Thus, setting up a trust or trusts would have probably been a suitable course of action for Harper Lee.
At Fields and Dennis LLP, Boston estate planning lawyer Sheryl Dennis is happy to set up trusts for those who want to preserve their privacy, even after they have passed on. As an estate planning lawyer, Sheryl understands that privacy is of vital importance, especially if a person has considerable finances and assets. She is a member of WealthCounsel, ElderCounsel and the Academy of Special Needs Planners. Please contact Sheryl Dennis today if you are looking to set up a trust.
Maintaining an updated estate plan is an important aspect of financial care. It is especially important to update following a divorce and/or the start of a second marriage. Blended families and new marriages create an interesting problem for will-makers, as they must find a way to honor the new spouse and children without disregarding children from the previous marriage.
This sort of incorporation is a difficult and delicate task, but not impossible with the proper guidance. The key to success is fully understanding the current family dynamics of the client. Family dynamics can shift over time, and so providing grounded advice on how to pass down assets and what estate planning tools work best for the situation is crucial.
A spousal trust tool is one of the most useful tools; it ensures that the surviving spouse will have access to trust assets during their lifetime and that these remaining assets will pass onto the children of the predeceased spouse. This form of trust allows for rollover treatments and graduated rates of taxation. Other estate planning tools could include careful splitting of assets, and the designation of life insurance to children.
At Fields and Dennis LLP, we treat our clients with the utmost respect during the delicate process of estate planning. We are a trusted firm that openly communicates with our clients during this planning process. Please contact us today if you are looking for a trusted and strategic Boston divorce lawyer.For more on estate planning in a second marriage: http://www.huffingtonpost.ca/suzana-popovicmontag/second-family-will_b_8010438.html
Sheryl Dennis was recently quoted in the March 12, 2015 issue of Massachusetts Lawyers Weekly. Attorney Dennis was consulted on digital legacy planning as it pertains to a new Facebook feature that allows individuals to choose a “legacy contact” to manage their account in the event of their death. Read the article.
Fields and Dennis, LLP was recently featured in Massachusetts Lawyers Weekly as part of their News Briefs. Celebrating 10 years as a firm is an exciting and special occasion and we are proud to share this milestone with our colleagues. Read more about our 10-year anniversary celebration here.
When considering your estate plan, one of the things you will have to think about is who your beneficiaries will be. If you have a significant estate, this decision is made even more complex. How will you divvy up your assets, who will receive an inheritance and are there those who you will deliberately exclude?
The decision to leave close family members out of your estate plan is one wrought with difficulty, and it is without doubt an emotional experience. It is surely not a decision made lightly, and it brings with it a lot to think about from a personal and legal standpoint. For the sake of this discussion, we will refer to disinheriting a child, but the advice is also applicable to other close family members. Read more.