Services

 
1. Estate Planning/Trusts & Wills
2. Disability Planning/Powers of Attorney
3. End of Life Planning/Living Wills
4. Planning for Special Needs Children
5. Estate Planning for Second Marriages/Blended Families
6. Asset Protection/Sheltering Assets from Nursing Homes
7. Crisis Medicaid Planning/Sheltering Assets for People Already in a Nursing Home
8. Medicaid Applications
9. Medicaid Appeals
10. Estate Settlement for Families of Deceased Persons
11. Estate Tax Avoidance and Estate Tax Returns
12. Veterans Benefits
13. Real Estate/Selling Real Estate from Trusts
 

1. Estate Planning/Trusts & Wills

Most of our clients share these top five estate-planning goals:

1. Avoid the expense, delay and publicity of probate
2. Protect their lifetime of savings from loss to a nursing home
3. Protect their children’s inheritance from creditors and divorcing spouses
4. Making provisions for a special-needs child
5. Save time and money for their heirs after they die

Our firm uses revocable trusts to accomplish these goals. With a revocable trust, you keep control of your assets, and direct how those assets are handled after you die. Your trust can be very simple, i.e., it can state that all of your assets simply go to your children, or it can be more complex, i.e., it can make provisions for the education and support of your grandchildren, direct how a camp or summer home is to be used, allow protections for children who have creditors or financial problems and generally be customized for the particular situation of you and your family.

The hallmark of a revocable trust is that it avoids probate after death. Because of this, attorney’s fees are minimal or non-existent; processing time is generally much faster than a will which is probated; and, unlike a will, which becomes a public record, a trust protects your family’s privacy.
 

2. Disability Planning/Powers of Attorney

If you become disabled, either physically or mentally, and you do not have the proper legal documents in place, then your family will be forced down a difficult road. They will have to undertake court proceedings to get authority to manage your assets, and these proceedings are expensive, time consuming, and emotionally draining for all involved. Our firm’s goal is for our clients to never have to go to court if one of their loved ones becomes disabled.

To avoid these court proceedings, we use both revocable trusts and durable powers of attorney. Most people think of a revocable trust as being used only after you pass away. This is not true, however. In your trust, you name a successor trustee. The successor trustee not only settles the estate when you die, but he or she assumes management of your assets during life if you become disabled and cannot do so. As to any assets that may not be in your trust (usually IRAs and similar retirement plans) we use a durable power of attorney. The revocable trust and durable power of attorney assure that there will be continued and uninterrupted management of your assets by the person you designate.
 

3. End of Life Planning/Living Wills

The case of Terri Schiavo won’t soon be forgotten. Ms. Schiavo was in a vegetative state for years, and clashes over her care fractured her family. No one wants to repeat this. That’s why a good estate plan will also allow you to control your own body and management of your health care

In order to do this, we use Advance Directives in New Hampshire and Health Care Proxies in Massachusetts. These documents do two things. First, if you are disabled but not terminally ill, you can designate a loved one, usually a spouse or a child, to be your advocate and make decisions about your health care. You can also use these documents to assure that your own personal requirements, due to religious or other reasons, are honored. In the event that you are terminally ill, and there is no hope of recovery, you can use these documents to specify that you be allowed to die naturally, without the use of life support or artificial feeding or water tubes.
 

4. Planning for Special Needs Children

Most parents care for their special-needs children at home for as long as they possibly can. However, there will come a time, whether due to illness, old age, or, ultimately, death, when parents can no longer care for their special-needs child. What will happen then? Where will the child live? Who will take care of him or her, not only to provide shelter, but for support and guidance? Who will pay the bills? You can see that advance planning by parents is essential. It can make all the difference in the life of a special-needs child, and that of his or her siblings as well.

In addition to the “life issues,” such as living arrangements and care planning, there is a legal dilemma posed when it comes to special-needs children. The issue is that such children have a very great need for funds, but will be cut off from government benefits if they own more than a token amount of assets. In addition, there is the practical problem that many special-needs children have, at best, a limited capacity to handle money. In order to deal with this dilemma, people sometimes leave an inheritance intended for the special-needs child to one of the other children, with the expectation that the other child will use it for his or her brother or sister. This option, however, is fraught with difficulties. Legally, the money belongs to the sibling, and not the special-needs child. As such, it is subject to creditor and divorce claims, and is at risk if the sibling dies prematurely or otherwise spends the money.

For these reasons, any funds that a parent leaves to a special-needs child should be left in the form of a “Special Needs Trust.” This is a type of trust which allows a disabled beneficiary to receive gifts or other funds and still qualify for government benefits. The trust funds are there for your child, but are not considered to be assets when the child applies for SSI or Medicaid. An Special Needs Trust is not meant to substitute for the basic support and medical care that the government will provide. Rather, such a trust pays for the “extras,” such as better clothes, trips, entertainment, education, training and counseling and whatever else your child may need. By using Special Needs Trusts, we are able to achieve these goals, and give parents peace of mind that their children will be cared for in later years.
 

5. Estate Planning for Second Marriages/Blended Families

People don’t always expect to say “I do” more than once, but second marriages are so very common – and the related legal issues are intricate and complex.

For example, are the assets to be kept separate or co-mingled? What happens to the assets of the first spouse to die? Are these assets distributed to his or her children, or are they to be kept on hand for the benefit of the surviving spouse? If the assets are co-mingled, than what is to stop the surviving spouse from disinheriting the children of the first to die? What happens if the surviving spouse marries yet again, after the existing spouse dies? On the second death, are the assets to be distributed in equal shares to the children of both parties, or in proportion to what each spouse brought to the marriage? Who will be in charge to settle the estate at the second death? Should both families be represented in this process? What happens if the children of each party do not get along well? Finally, what happens if one of the spouses needs nursing home care?

As you can see, the above questions, and more, need to be answered in every second marriage situation. Through the use of trusts which are carefully tailored to each case, we can provide solutions to these difficult issues.
 

6. Asset Protection/Sheltering Assets from Nursing Homes

A typical nursing home stay costs over $120,000 per year, which can mean financial ruin for all but the wealthiest families. A cornerstone of our practice is asset protection from long-term care. Through the use of various kinds of trusts, we can help families protect what they have spent a lifetime building up.

The workhorse of our Medicaid Planning practice is the Medicaid Trust. After a mandatory fiveyear waiting period, the assets placed into such a trust become invisible to a nursing home. People use the Medicaid Trust in different ways. Some people use the trust to protect only their home. Others, who have a second home such as a lake house or condo in Florida, use the Medicaid Trust to protect those assets. Yet others use the Medicaid Trust to protect liquid assets, such as CDs or a stock account.

Many people think that if you put your house into a Medicaid Trust it cannot be sold. Nothing can be further from the truth. You sell the house from the trust, and then the proceeds go into the trust. The trust then uses those proceeds to buy another house. If you put investments such as stocks or mutual funds into the Medicaid Trust, you can sell roll them over to other investments if you wish. You can also have access to the income generated by the Trust assets.

The key is that we carefully analyze the client’s assets, as well as his or her needs and concerns, and then customize a Medicaid plan that will meet his or her needs.
 

7. Crisis Medicaid Planning/Sheltering Assets for People Already in a Nursing Home

As mentioned above, a Medicaid Trust requires a five-year waiting period. But what happens if you find that a loved one needs nursing home care right now, and does not have time to wait the five years? In many cases, it is still possible to shelter assets, even at the last minute.

There are a number of ways of doing this. In the case of a married couple, the most powerful technique involves the use of an immediate annuity. Such an annuity must be structured very carefully, as it needs to meet the requirements of state and federal laws. If done correctly, however, such an annuity can save most – if not all- of the assets. There are other techniques as well. With regard to the house, there are protections for children who have lived with their parents and kept them out of a nursing home for two years, and there are protections for siblings who own a house together. There are also protections for rental property.

To be clear, planning in advance is always better. But, if the family has not been able to do this, all is not lost, and there are some very powerful things that can be done.
 

8. Medicaid Applications

In criminal law, you are innocent until proven guilty. A Medicaid application is just the opposite: you are considered ineligible for the benefits until you prove that you are, actually, eligible.

Whether this is intentional or not we do not know, but it seems that the application process is designed to be as difficult as possible. Essentially, a Medicaid application is a full and complete audit of all of your finances for the past five years. You are required to produce a complete set of your monthly or quarterly statements for this timeframe.

In New Hampshire, every transaction above $500 needs to accounted for, and in Massachusetts, every transaction above $1,000 or so needs to be accounted for. If you have closed any accounts or sold any assets in the past five years, you need to prove what happened to the proceeds. If you have given any gifts in the past five years (other than small Christmas or birthday gifts), you can easily find yourself disqualified for benefits. Certain Medicaid caseworkers have been known to request vast amounts of information with impossibly short deadlines. To make matters worse, a 2013 law in New Hampshire can make your power of attorney holder personally liable for your nursing home costs if he or she is negligent in the preparation of an application.

It is our belief that, except in the very simplest of cases, you should get professional legal help in preparing and filing a Medicaid Application. Our firm has done thousands of Medicaid applications over the past 25 years, and we can provide the help that you need.
 

9. Medicaid Appeals

Denied. Is there a more unsettling word than that when you’re planning for your future or for the well-being of a loved one?

This is a troubling reality: some Medicaid applications are denied. If that happens, you have the right to file an appeal. A Medicaid appeal is held before a hearings officer. The hearings officer is not a judge, but rather is an official who works for the appeals unit of the Medicaid agency. An appeal is not a second bite at the apple. Rather, the job of the hearings officer is to determine whether the Medicaid agency made a mistake in assessing the facts or a mistake in applying the law.

Although a Medicaid appeal is not exactly a trial, it is quite similar, in that there can be testimony of witnesses, exhibits, legal briefs and legal arguments. The state Medicaid agency will have an attorney to represent it. The burden is on you to prove that the Medicaid agency made a mistake. Therefore, in most cases, unless you have competent legal representation, the odds will be greatly stacked against you. Our firm has many years’ worth of experience in handling Medicaid appeals, and can provide representation in these cases.
 

10. Estate Settlement for Families of Deceased Persons

Although our firm believes that most people should avoid the expense, delays and publicity of probate, not everyone does this. Sometimes it is necessary to probate wills and estates through the courts, and our firm has many years’ worth of experience in doing so. We work in every Probate Court in New Hampshire as well as in Essex and Middlesex Counties in Massachusetts.

In this type of work, we take responsibility for filing the necessary documents with the Probate Court and the IRS, and assist and guide the executor in carrying out his or her duties. When the estate has been settled, we prepare an accounting of the estate, if necessary, and help in making the final disbursements.

In cases where all of the assets were in trust, so that no probate is necessary, we also meet with the successor trustees, and give them guidance in what they need to do in order to process the trust quickly and efficiently.

In short, we take a difficult and stressful process and make it as painless as possible.

 

11. Estate Tax Avoidance and Estate Tax Returns

Now that the federal estate tax exemption is $5.25 million dollars, there is little need to do estate tax returns any more. The exception, however, is the Massachusetts Estate Tax. If someone dies with assets worth over $1 million in Massachusetts, his or her estate may be subject to tax.

If a tax is due, the return must be filed within nine months of death. Preparation of the estate tax return is complex. In essence, all of the assets need to be valued as of the date of death. If there is real estate, it needs to be appraised. All supporting documentation needs to be submitted with the return. Each return is thoroughly looked at by a tax examiner, and the process is not complete until the state is satisfied with the documentation and the appraisals. Doing an estate tax return is sophisticated, and it is very different from doing your annual income tax return. Our firm has been doing Massachusetts estate tax returns for many years.

If a married couple in Massachusetts has assets that exceed $1 million in value, then they can minimize, and sometimes entirely avoid the tax for their heirs. Essentially, each spouse puts together a revocable trust, so that a married couple has two trusts. These trusts are then broken down into sub-trusts known as the Marital Trust and Family Trust. As you can imagine, trusts of this nature are far more technical and advanced than trusts for people with under $1 million in assets. Our firm has vast experience in preparing trusts for estate tax avoidance.
 

12. Veterans Benefits

The Veterans’ Administration “Aid and Attendance” benefit is a well-kept secret. This benefit is available to a veteran (or spouse of a veteran) who has served in the military for at least 90 days, during WWII, Korea, Vietnam and the Gulf War, and who received an honorable discharge. This benefit may help if you need to cover the cost of long-term care, whether at home, in an assisted living facility or in a nursing home. In 2014, the benefits are as follows, and are in addition to pension and Social Security:

Single – $1,759
Married Veteran – $2,085
Surviving Spouse – $1,130

In order to qualify, the veteran or spouse must need assistance in the activities of daily living, such as personal hygiene, eating, cleaning or using the bathroom. Although there is no strict asset limit to get this benefit, $80,000 is considered the benchmark. Qualifying for benefits is a lengthy process, and there are state agencies that can help qualifying Veterans or spouses. We can give you general information about the benefit, and then can refer you to the relevant agency to assist you in the application process.
 

13. Real Estate/Selling Real Estate from Trusts

Most of our clients put their home or other property into a trust. Selling property from a trust is no more difficult or complex than selling property that is not in trust. However, many of our clients do not have relationships with any attorney other than us. For these clients, we provide representation in the sales process, including review of the purchase and sales agreement and closing statement, preparation of the deed, review of the closing documents and attendance at the closing, if necessary.
 
Return to top