Massachusetts Estate Planning Legal Questions

Eight years or eighty years makes no difference:  married is married.  In some states a surviving spouse has a lifetime right of occupancy even without a written agreement.  In some states the home automatically passes to the surviving spouse.  In some states the spouse has a lifetime right of occupancy and a 1/3rd interest in the home if it is sold.  Check with a Massachusetts probate attorney.... Read More

You and you boyfriend should sign and record a deed naming both of you as tenants in common (having undivided interests in the entire property) or as holding "joint with right of survivorship" (meaning that the survivor inherits the entire propety).  If this cannot be done, loan your boyfriend the money, at interest, with a promissoy note and a recorded mortgage (deed of trust).  If you do neither, you have made a gift.  If the amount is over $15,000, file a Form 709 with your 1040 and pay the tax.  As Shakespeare warned us, "The wont of men was ever so:  one foot on sea and one on shore; to one love faithful never."... Read More

While some county probate courts will hold a Will in safekeeping, most people find the Will, if there is one, somewhere in the home or the safety deposit box.  If your probate attorney is a member of a state probate lawyers' listserv, she may be able to ask who prepared the Will.  But not all lawyers keep a copy of the Wills they draft.... Read More

Federal law prohibits a mortgage lender from foreclosing for six months after the court appoints an executor. An executor's duty is to gather the assets, pay the debts and distribute the rest according to the Will.  If there was no lease, the "tenant" is a guest.  If the tenant does not leave, the executor's duty is to bring an eviction action in small claims/justice of the peace court and pay the sheriff to enforce it.  Meanwhile, you can cut off the utilities and change the locks.... Read More

A Durable Power of Attorney is only effective while the person granting it is alive. Agents can be added to a Durable Power of Attorney by another agent only if the Durable Power of Attorney says that it can.  Most do not. Who is the principal, the person who named you and your brother to act for him or her as agents under the Durable Power of Attorney?  That person can sign new Durable Power of Attorney, revoking the old one, and naming the new agents.... Read More

No.  The house is not yours. As your probate attorney should advise you,  you should either (1) sell the house and, after paying the estate's debts, distribute the net proceeds three ways or, if it is not necessary to sell the house to pay the estate's debts, (2) file a Distribution Deed (formerly called an Executor's Deed) distributing the ownership of the house to you, your sister and your brother equally.  After that, your brother may choose to sell or gift his interest to you or your sister.  Another deed must be filed to accomplish this.... Read More

Each child inherits an equal share.  If some would like to gift or sell their share, they may.  If others would like to inherit their share, which may force the house to be sold, they may.    If you think that there is a conflict of interest, you may oppose someone's appointment as personal representative and ask to be appointed yourself.  Alternatively, after a certain amount of time (typically two years) has passed and you have not received a distribution, you can ask the court to replace the personal representative.... Read More

Contact Volunteer Legal Services in your area to request pro bono representation in settling your mother's estate.  If that is not available and you want to sell the home, some probate attorneys will agree to be paid out of the estate.  Be sure to put the money in a special needs trust (or master pooled special needs trust) and/or spend it in the month in which you receive it so that you can continue to receive SSI/Medicaid.... Read More

While many non-lawyers believe that a quitclaim deed transfers title, it generally does not.  It only foregoes a claim to property in dispute, such as an easement. At the time she signed, your mother's dementia may or may not have been sufficiently advanced for her to lack legal capacity to contract.  Dementia is being diagnosed earlier these days. Take the documents to a local probate lawyer for a second opinion.  Without seeing them, no one can advise you.... Read More

I am so sorry.  The answer depends.  You are responsible for debts just in your name, you and your wife are responsible for debts on joint credit cards.  For your own debts, only assets that you own alone are on the line.  If it is a joint credit card, any assets owned by you alone, your wife alone, and that you own together are on the line.  Once you pass away, debts that are yours alone become debts of your estate and, again, subject only to property that you alone own.  Most states allow a spouse to keep some amount of estate assets, usually around $7,000 or so, more if there are dependent children.  Please note that transferring property to someone else to avoid paying a debt is prohibited in most states and can be reversed.  I would advise talking with an attorney as there are actions you can take depending on the details of your assets and debt.  Good luck.   ... Read More

There is never any legal need for a beneficiary's Social Security number to be included in a Massachusetts will. Including the Social Security number in a will seems foolish and dangerous, as the number could end up being disclosed to everybody in what may eventually be a document that is available to the public. The beneficiary's Social Security number would not be needed until the decedent's estate makes a distribution to the beneficiary the Social Security number is then needed for income tax purposes.... Read More

Massachusetts real estate that is jointly-held (i.e., held as joint tenants with right of survivorship or as tenants by the entirety) becomes an asset of the survivor by operation of law. (Massachusetts real estate held as tenants in common, however, would require a Massachusetts probate process.) All that is required to establish the survivor's ownership on jointly-held real estate is the recording of a death certificate with a raised seal, but even though the survivor thereby becomes the owner, there would still be a Massachusetts estate tax lien on the real estate that would need to be dealt with. If the federal gross estate (including non-probate assets) is worth under $1,000,000, then an estate tax affidavit can be executed by the surviving joint owner and recorded to release the Massachusetts estate tax lien. If the federal gross estate (including non-probate assets) is worth $1,000,000 or more, then the filing of a Massachusetts Estate Tax Return would be required within 9 months of death, and if the decedent was domiciled outside of Massachusetts, the filing of an extensive Nonresident Decedent Affidavit would be required as part of that process.... Read More

jtwros means joint tenants with rights of survivorship, meaning that the person who survives then owns the property. One can sever a joint tenancy by conveyance, thereby creating a tenancy in common. Get thee to a lawyer. If there was undue influence over the decedent's wishes or intent, etc.... Read More