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ESTATE
PLANNING
LONG
TERM CARE PLANNING / NURSING HOME
PLANNING
PROBATE AND ADMINISTRATION OF ESTATES
REAL ESTATE
AUTOMOBILE ACCIDENT CLAIMS
ESTATE
PLANNING - Back To
Top
Last Will and Testament -
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A Last Will and Testament is one of the
most important legal documents a person
can sign during his or her lifetime.
Everyone should have a Will, even if the
individual has relatively few assets. A
Will does not need to be complicated and
it gives you full control over your
estate. It addresses issues such as:
- Who will manage your estate upon
your death
- Who will inherit your assets
- Who will inherit assets if your
primary beneficiary or beneficiaries
die after you sign your Will but
before you die
- At what age beneficiaries are
entitled to assets
- Who will your minor children
live with
- Other issues relating to the
management and distribution of your
estate.
Without a Will, the laws of your
state decide who your beneficiaries are
and how and when your assets will be
distributed. Without a Will, the laws of
your state also decide who is able to
serve as the estate representative.
Massachusetts Health Care Proxy -
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A Health Care Proxy creates a fiduciary
relationship between the principal and
the agent. The document gives the agent
authority to make medical and health
care decisions for the principal, but
only if the principal is incapacitated.
Health Care Proxies may also contain
directives regarding the principal’s
wishes concerning end-of-life decisions,
such as decisions concerning whether or
not to continue or even commence life
support measures.
- Family Matters. Doctors may look
to your family members for input,
but if family members are not in
agreement, it could lead to conflict
and/or result in decisions that you
would not have made for yourself. A
Health Care Proxy can eliminate
those conflicts and difficulties.
- Guardianship Avoidance/Privacy.
Often a Massachusetts Health Care
Proxy avoids the need for a
guardianship and reduces or
eliminates the delay, expense, and
emotional turmoil sometimes
associated with guardianships.
- Alternate Agents. Only one
health care agent can serve at one
time, but alternate agents can be
named, and are recommended.
- Termination. A Health Care Proxy
can be revoked in any one of the
following ways:
- Agent’s receipt of notice of
revocation;
- Death of the principal;
- Divorce or legal separation,
if the spouse is the agent; or
- Principal signs a new Health
Care Proxy.
Power
Of Attorney - Back To
Top
Like a Health Care Proxy, a Power of
Attorney creates a fiduciary
relationship between the principal and
the agent. However, instead of giving
the agent the authority to make medical
and health care decisions, the Power of
Attorney gives the agent the authority
to make legal and financial decisions
for the principal.
Your spouse suffers a stroke or another
medical emergency. You want to access a
bank account, a certificate of deposit,
or deal with other assets such as an
automobile or stock. You may even want
to transfer or sell your home. Without a
Durable Power of Attorney the courts
become involved. The court will have to
appoint a guardian for your spouse. By
signing a Durable Power of Attorney, the
emotional and financial burdens and the
oftentimes lengthy court process
associated with a guardianship can be
eliminated.
- What It Does. A Power of
Attorney names an agent who is
referred to as your
“Attorney-In-Fact.” Although a Power
of Attorney authorizes the
“Attorney-In-Fact to make legal and
financial decisions for the
principal, it does not prevent the
principal from also participating in
his or her legal and financial
decisions.
- Durable. If the Power of
Attorney is “Durable”, it means that
the document continues to be valid
even if the principal becomes
disabled or incapacitated.
- Powers. The following is a
non-exhaustive list of actions the
designated Attorney-In-Fact is
authorized to perform: conduct
banking transactions; file and
receive tax returns; rent, mortgage,
or sell real estate; make gifts from
your assets; apply for public
assistance; and deal with the United
States Post Office.
- Duration. A Power of Attorney
terminates upon the death of the
principal, upon the agent’s receipt
of a notice of revocation, or when
the principal signs a new Power of
Attorney.
- Privacy. The financial
transactions made by an
Attorney-In-Fact are not public
records. This helps to ensure that
the financial transactions will
remain private and confidential.
- Successor Attorneys-In-Fact.
Although a successor
Attorney-In-Fact is not required, it
is strongly suggested that you
choose a successor Attorney-In-Fact
to be named in your Power of
Attorney. If your primary
Attorney-In-Fact cannot serve
because they have died, declined to
serve, resigned, or become
incapacitated, your successor
Attorney-In-Fact can serve.
- Assurance and Insurance.
Obviously, while the law does not
require that you have a Durable
Power of Attorney, the law also does
not require that you have homeowners
insurance, but wouldn’t you be
thankful that you have that
insurance if there was a fire or a
burglary? Likewise, you will be
fortunate if you or your loved ones
never need to use a Power of
Attorney, but you will have peace of
mind that the document is available
in the event of a disability or
incapacity.
Trusts -
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Each person is a legal entity, and so is
a trust. Because you and the trust are
separate legal entities, anything you
transfer from you to the trust becomes
an asset of the trust. The trust then
holds the assets for your benefit, or
for the benefit of those whom you
designate.
- Why Have a Trust:
- To manage assets in order to
produce income for a
beneficiary, conserve assets, or
provide for the growth of the
assets;
- To reduce or possibly
eliminate estate taxes;
- To control the use and/or
disposition of assets long after
you have passed away;
- To provide for your spouse
and/or your children;
- To provide for children
during minority or if disabled;
and
- To protect beneficiaries
from claims by creditors.
- Components of a Trust:
- Grantor: Creator of the
trust.
- Beneficiary or
Beneficiaries: Individual or
individuals who receive the
benefits (income and/or
principal) of the trust. The
grantor can also be a
beneficiary.
- Assets: Items of economic
value that are transferred to
the trust.
- Trustee: Individual or
entity that manages the trust's
assets and distributes the
assets according to terms
established by the grantor. The
grantor can also be the trustee,
while the grantor is alive.
Living Trusts (Inter-vivos Trusts):
Trusts that are set up and funded (even
if nominally funded) during your
lifetime.
Testamentary Trusts: Trusts that are
incorporated into your Will, and thus
court-approved (if necessary) after your
death.
Revocable v. Irrevocable Trusts:
Revocable trusts can be changed or
revoked by the grantor. Irrevocable
trusts cannot be changed after they are
created.
Life Insurance Trusts: Life Insurance
Trusts are used to transfer ownership of
life insurance policies out of an
individual’s taxable estate. This
reduces the value of the estate subject
to taxation, and thus, it reduces estate
taxes. Life Insurance Trusts must be
irrevocable. Therefore, the grantor may
not assign the policy, cash in the
policy, and/or change the beneficiary.
Special Needs Trusts: The purpose of a
Special Needs Trust is to preserve
public benefits for the beneficiary.
Usually, someone other than the
beneficiary funds the trust. These
private funds are then used to
supplement the beneficiary’s lifestyle,
while still enabling the beneficiary to
receive governmental assistance. The
beneficiary has no right to revoke the
trust or compel distributions for
support and maintenance.
Life
Estate Deeds - Back
To Top
A Life Estate Deed is an effective tool
that can remove real estate from your
Probate estate. Other assets that are in
your name individually, such as cars,
bank accounts, stock etc. can still be
controlled by the terms of your Will.
Basically, a Life Estate Deed can add
remaindermen (usually the client’s
children) to a deed while creating and
reserving a Life Estate, or Life Estates
in the property for the current owner or
owners. A Life Estate Deed enables
people to live in their home for the
rest of their life and continue to
maintain a legal interest in the home.
The Life Tenant(s) are still be
responsible for paying real estate
taxes, insurance, maintenance, municipal
assessments, fees, charges, and expenses
relating to the property. A Life Estate
Deed also avoids Probate (only with
regard to the home). Your Will would
control other assets that are in your
name individually, and your trust
controls the assets that are in the
trust.
A Life Estate Deed can also be
beneficial in certain circumstances
because the remaindermen can get a
higher “tax basis” which can reduce or
eliminate their capital gains taxes if
and when they sell the property.
Caveat: After signing a Life Estate
Deed, you do lose some control over the
property. For example, if you ever want
the property sold, or if you are
interested in having it utilized as
collateral for a mortgage or home equity
loan, you would have to obtain the
assent of the remaindermen, and they
would have to voluntarily participate in
any proposed transaction(s). Also, as in
all cases, if a remainderman named in a
Life Estate Deed were to file
bankruptcy, divorce, or be sued, their
interest in the property could be
subject to those proceedings. Also, if
the remaindermen were to predecease the
Life Tenant(s), the Life Estate(s) would
still remain in place. The interest of
any deceased remaindermen would then
pass through his or her Estate.
Homestead
Protection -
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The homestead exemption protects your
primary residence from certain creditors
so that they cannot force a sale of the
home to satisfy payment of a debt.
Qualifications: You must have
an ownership interest in the home and
occupy it as your principal place of
residence.
Coverage: The protection
extends to your spouse and dependent
children. The protection does not extend
to “second homes.”
Automatic $125,000.00 Protection:
Massachusetts homeowners will receive
automatic protection of $125,000.00
against debt collectors. The homeowner
does not have to take any action to
obtain the automatic protection.
Enhanced $500,000.00 Protection:
Massachusetts homeowners may elect to
record a Declaration of Homestead in the
Registry of Deeds. The Declaration of
Homestead will protect up to $500,000.00
of equity in the home from certain
creditors. Enhanced homestead protection
is not an additional $500,000.00 of
protection. Rather, this document
increases the automatic protection from
$125,000.00 to $500,000.00. The
Declaration of Homestead is recorded in
the Registry of Deeds in the county
where the home is located. If you ever
sell your home the homestead protection
ends. When a homeowner purchases a new
residence, he/she/they must sign a new
Declaration of Homestead in order to
obtain the enhanced $500,000.00 of
protection.
Signatures: If the home is
co-owned by a married couple, and the
couple elects to record a Declaration of
Homestead, both spouses must sign the
document. If a single person declares
the homestead protection and
subsequently marries, the homestead
automatically protects the new spouse.
Mortgaging/Refinancing:
Mortgages will no longer terminate a
previously existing homestead. If a
homeowner refinances their home, they DO
NOT have to re-file a homestead. Under
the new law, homesteads are
automatically subordinate to mortgages.
Lenders are specifically prohibited from
having borrowers waive or release a
homestead.
Homes Held in Trust: An
important benefit of the new law is that
homestead protection now applies to
homes held in a trust. This change is
very important for estate planning
purposes.
Elderly Homestead Protection:
Elderly (age 62 or older) and disabled
persons who sign a Declaration of
Homestead are each entitled to a
separate exemption of up to $500,000.00.
This protection applies to the elderly
or disabled person alone and is not
shared with any other co-owners of the
home.
Existing Homesteads: The new
law does not require Homeowners with
existing homesteads to record a new
Declaration of Homestead.
Transfers Among Family Members:
Transfers among family members will not
terminate an existing homestead
protection, even if the homestead is not
reserved in the deed.
Termination: Homestead
protection is not terminated upon the
recording of a later Declaration of
Homestead. The later recording relates
back to the earlier one.
Sale of Home: Homestead
protection applies to the proceeds from
a home sale and will be protected from
creditors for up to one year from the
date of the sale.
Not Covered:
- Debts contracted prior to the
acquisition of the Declaration of
Homestead;
- Federal, state, and local taxes,
assessments, claims, and liens;
Probate Court execution to enforce a
judgment for spousal or child
support;
- Upon a court order to enforce a
judgment based upon fraud, mistake,
duress, undue influence or lack of
capacity.
- Mortgages and Equity Lines held
by financial institutions and
others; and
- Recovery by MassHealth, and
certain other governmental claims.
Guardianships and Conservatorships
of Incapacitated Persons -
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When a person becomes incapacitated, and
has not signed a Power of Attorney
and/or a Health Care proxy, it may be
necessary to have the Probate Court
appoint a Guardian or Conservator to
manage the person’s affairs. We offer
representation for individuals and
families in these situations, but a good
adage is “an ounce of prevention is
worth a pound of cure.”
Absent an adjudication of incompetency,
a person is presumed competent. The
person for whom the Petition is brought
is referred to as the incapacitated
person. A Guardian controls the person
and the property of the incapacitated
person. A Conservator controls only
property of incapacitated person, not
the person.
- Who may petition for
Guardianship
A parent
The Department of Mental Health
Any person interested in the
incapacitated person's welfare
Mental illness
Mental retardation
Inability to make or communicate
informed decisions
Remedial legal procedures can be more
time-consuming and more costly then
preventative legal procedures. Before
the court can appoint a Guardian or a
Conservator, the incapacitated person
must first undergo a medical examination
and a Medical Certificate must be filed
with the court. Guardians and
Conservators are required to file a Bond
with the Court. Also, in certain
circumstances, the court will require
the appointment of an attorney for the
incapacitated person who cannot be the
same attorney who is representing the
petitioner. In addition to the guardian,
the court may also require the
appointment of a Guardian-Ad-Litem
(GAL), who double-checks that the action
(or proposed action) of the Guardian is
appropriate.
Guardians and Conservators are also
required to file an Inventory and Annual
Accounts. Those documents become "public
records" and privacy is lost. As stated
previously, if the estate plan includes
a Power of Attorney, a Massachusetts
Health Care Proxy, and potentially
trusts, the client is able to maintain
complete privacy by avoiding financial
and/or medical documents becoming
"public records."
PROBATE AND ADMINISTRATION OF ESTATES
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When a person dies their estate may be
comprised of both non-probate and
probate assets.
Administration of Estates -
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Non-probate assets are those assets that
are in joint ownership or are contractual in
nature. Assets that are owned jointly,
with rights of survivorship are not
subject to probate. The best examples of
contractual assets are life insurance
policies, retirement benefits, and
assets that have been transferred to a
trust.
Probate of
Wills - Back To Top
Probate assets are those assets that
were held in the decedent’s name alone.
Those assets are subject to the probate
process. Probate is a court process that
transfers legal title of assets from the
estate of a person who has died to those
entitled to the assets. If a person dies
without a Will, the process is called
Administration and involves the same
steps as below, except obviously there
is no Will to prove in court and the
people entitled to receive the assets
are determined by Massachusetts law
rather than by the decedent.
Court
Proceedings - Back To
Top
The basic steps involved in the probate
and administration processes are as
follows:
- If a Will is involved, proving
in court that the deceased person's
Will is valid;
- Identifying and inventorying the
decedent’s property;
- Determining and notifying heirs;
- Locating missing heirs;
- Appraising property;
- Paying debts, taxes, and the
costs of administration/probate;
- Potentially selling real estate
(Court approval required if there is
no Will authorizing it);
- Filing Estate Tax Returns (if
necessary);
- Filing Fiduciary Tax Returns (if
necessary);
- Accounting of assets to the
court; and
- Distributing the net estate as
the Will directs (or as state law
mandates if there is no Will).
Our attorneys are experienced in
probate and estate administration and
can help simplify this complicated
process. We can navigate our clients
through the probate process and
effectively administer the estate
because of our understanding of probate
and tax laws. We can help ensure that
the deceased individual’s intentions are
followed.
The Probate Court also determines
questions involving property if a Will
is contested or unclear. We also offer
representation in these situations.
Long-Term Care Planning/Nursing Home
Planning - Back To
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Long-Term Care Planning -
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Many of our maturing clients have spent
a lifetime saving and building wealth,
with the intent to pass it on to their
chosen beneficiary or beneficiaries.
Atty. Farrissey, as a Member of the
Massachusetts Chapter of the National
Association of Elder Law Attorneys (NAELA),
and Atty. Grochmal can help to protect
those hard-earned assets in the event
nursing home care becomes necessary.
If you have purchased long-term-care
insurance, that insurance may be able to
pay some or all of the nursing home
expenses. For those people who have not
purchased long-term-care insurance,
either you pay for the nursing home
care, or the government pays. Medicare
may pay if the services are
rehabilitative, but the primary program
is Medicaid.
In Massachusetts, Medicaid is known as
MassHealth. It is the program that deals
with the payment to nursing homes for
individuals who have exhausted their own
resources. Our goal is to preserve the
assets, in advance, so they will not be
quickly exhausted by nursing home
expenses.
If you take the time to plan far enough
ahead, Atty. Farrissey and Atty. Grochmal can help protect significant
assets from being exhausted on nursing
home expenses. We also help to prevent
the assets from being exposed to recovery
if a MassHealth Lien is filed.
Although the changes to the MassHealth
laws have made it harder and harder to
preserve assets, we encourage you not to
delay any longer. Even if you find
yourself in a crisis situation (a spouse
or loved one needs nursing home care now
or in the very near future) we can still
provide advice and guidance concerning
the protection assets, and we can assist
in the MassHealth application process.
Applying For Medicaid (MassHealth) -
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We prepare MassHealth applications so
that you and your family can focus on
rehabilitation and health care
responsibilities, while we focus on the
complexities of MassHealth rules and
regulations. If you choose, we will also
contact banks, credit unions,
stockbrokers, and other financial
institutions for the documents and
information that MassHealth will
require. We can also obtain assessors
records, real estate records from the
registry of deeds, and contact life
insurance companies. If a MassHealth
application is denied, we can also
appeal that decision, and represent the
applicant at a Fair Hearing.
Life Estate Deeds -
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In addition to avoiding Probate, a Life
Estate Deed can be an effective tool
that can eliminate future recovery by
MassHealth against your home. Basically,
the Life Estate Deed can add
remaindermen (usually your children) to
your deed, while creating and reserving
a Life Estate, or Life Estates in the
property for the current owner or
owners. This procedure enables people to
live in their home for the rest of their
life and continue to maintain a legal
interest in the home. The Life Tenant(s)
are still be responsible for paying real
estate taxes, insurance, maintenance,
municipal assessments, fees, charges,
and expenses relating to the property. A
Life Estate Deed also avoids Probate
(only with regard to the home). Your
Will would control other assets that are
in your name individually, and your
trust controls the assets that are in
the trust.
- Caveat: After signing a Life
Estate Deed, you do lose some
control over the property. For
example, if you ever want the
property sold, or if you are
interested in having it utilized as
collateral for a mortgage or home
equity loan, you would have to
obtain the assent of the
remaindermen, and they would have to
voluntarily participate in any
proposed transaction(s). Also, as in
all cases, if a remainderman named
in a Life Estate Deed were to file
bankruptcy, divorce, or be sued,
their interest in the property could
be subject to those proceedings.
Also, if the remaindermen were to
predecease the Life Tenant(s), the
Life Estate(s) would still remain in
place. The interest of any deceased
remaindermen would then pass through
his or her Estate.
REAL ESTATE -
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Whether you are buying, selling, or
leasing residential or commercial
property, we will negotiate the terms,
draft the necessary legal documentation,
and represent you at the Closing. Our
services are designed to simplify the
Closing process so you can easily
understand what is involved.
The Law Offices of John C. Farrissey &
Associates represents St. Anne’s Credit
Union concerning Conveyancing and
Refinancing of residential Real Estate.
Our Attorneys and staff are skillful
professionals who will perform the
following to ensure that your Closing
goes smoothly:
- Conduct a thorough title
examination
- Resolve issues relating to any
potential title difficulties
- Oversee the preparation of the
necessary legal documentation
- Oversee the signing of the
Closing documentation including an
explanation all legal documents
- Record all relevant documents at
the appropriate Registry of Deeds
- Handle the funds concerning the
property (including paying off the
existing mortgage and any other
liens)
- Issue title insurance to the
lender
- Offer title a insurance policy
to the buyer
We represent St. Anne’s Credit Union
concerning real estate purchases and
refinancing. When representing St.
Anne’s Credit Union, it is a conflict of
interest to represent Buyers and/or
Borrowers concerning the purchase and/or
refinancing. Therefore, Buyers and/or
Borrowers should decide if they will
hire their own attorney to represent
their interests.
AUTOMOBILE ACCIDENT CLAIMS -
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Many automobile accident victims never
receive the full amount of damages that
they are entitled to. This can occur
when the victim does not know the full
value of her/his claims and accepts an
insufficient offer made by the insurance
company.
Our attorneys can identify the full
value of your claim and will skillfully
negotiate with the insurance company to
obtain the maximum compensation to which
you are entitled.
Evaluating A Claim:
The two primary factors involved in the
insurance carrier’s evaluation of a
claim are issues of liability and the
calculation of damages.
1. Liability: The insurance carrier will
make an assessment as to which
individual was negligent or at fault in
the accident.
2. Calculation of Damages: Below is a
non-exhaustive list of certain
circumstances when an individual victim
can pursue a claim arising out of the
use of an automobile:
- Medical bills totaling $2,000.00
or more; (this threshold amount
usually applies to victims
sustaining back and/or neck
injuries);
- A bone fracture;
- Permanent or serious
disfigurement (scarring);
- Loss of body part(s);
- Loss of sight, hearing, smell,
taste, or touch;
- Death
- What We Can Do To Help:
We, at the Law Offices of John C.
Farrissey & Associates realize that an
automobile accident can be emotionally
draining, financially stressful and
confusing.
Whether you have been injured in an
automobile accident as a driver, a
passenger, or a pedestrian, due to
someone’s negligence, we can assist you with all
the paperwork and issues that need to be
addressed at the outset of your case.
We also know that money can never fully
compensate for all of the damages caused
by an automobile accident. However, it
can provide necessary medical care,
rehabilitation and income replacement.
In addition, it can provide a measure of
justice, particularly in cases of
wrongful death.
1. Notification of Representation: We
will notify the insurance carriers that
we represent you so you will not have to
deal with emotionally draining telephone
calls from them, thus protecting you
from having to give statements that you
are not required to give.
2. Personal Injury Protection (PIP
Forms) and Reports: We will assist you
in completion of all accident forms and
reports.
3. Guidance through the process of
collecting monetary damages for:
- Pain and Suffering;
- Payment of reasonable medical
expenses incurred;
- Future reasonable medical
expenses;
- Lost Wages;
- Loss of Consortium
(companionship of a family member)
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