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Legal Notes

Seunghee ChaAttorney Seunghee ChaMany people want to avoid probate without realizing what it is or that it has benefits. Thorough estate planning involves a careful evaluation of whether avoiding or minimizing probate is desirable.

Probate refers to a court process for overseeing (i) the appointment of the personal representative (aka “executor”), (ii) the determination of the validity of a decedent’s will, (iii) the identification of heirs of the estate, (iv) the marshalling of assets held in the name of the decedent, (v) notice to creditors of the estate, and (vi) other property issues arising at death.

A few advantages of probate:

Legal notice. The publication required in probate gives creditors one year (in Massachusetts) from the date of death to make claims against the estate. For estates facing creditor problems, the deadline offers finality and protection.

Court oversight. Judicial involvement of the administration protects interested parties from possible mishandling of the estate by the personal representative. Many people can trust a family member acting as personal representative to administer the estate properly. In some situations, however, inventory and accounting requirements provide much-needed transparency.

The major disadvantages generally associated with probate are public disclosure of assets in the decedent’s name and the expense of the probate process. However, such disadvantages are mitigated by various factors. Consider:

Privacy. While assets in a decedent’s name often must be disclosed, life insurance proceeds, joint assets, and IRA and 401(k) benefits, which typically constitute the bulk of a decedent’s assets, are normally not disclosed because joint property and property passing under contract by beneficiary designation are not subject to probate.

Cost. Under the Massachusetts Uniform Probate Code, in effect since March 2012, the probate process is streamlined to allow less formal, more user-friendly administration options. Consequently, the cost of probating an estate in Massachusetts often is much less than in many other states and should not be the reason for deciding whether or not to avoid probate.

The major disadvantages generally associated with probate are public disclosure of assets in the decedent’s name and the expense of the probate process. However, such disadvantages are mitigated by various factors.

Strategies for avoiding probate include adding a joint owner to your property and establishing a trust and titling ownership of assets to be held in the trust. These actions incur cost and can result in loss of control, disposition of assets to unintended beneficiaries, and adverse tax consequences.

Probate is often misunderstood and unnecessarily feared. A good estate plan involves education to help individuals and families make informed decisions to meet their personal needs—which may not involve avoiding probate.

The views expressed in this column represent general information. To address your particular and specific needs consult your own attorney. If you need help with referral to an attorney, contact the Franklin County Bar Association at (413) 773-9839 or the Worcester County Bar Association at (978) 752-1311. Elder law resources may be found through the National Academy of Elder Law Attorneys, Massachusetts Chapter, at massnaela.com or 617-566-5640.

Community Legal Aid (CLA) provides legal services free to people age 60 and older for civil legal matters with an emphasis on access to health care coverage (MassHealth and Medicare) and public benefits as well as tenants’ rights. A request for legal assistance can be made by phone at 413-774-3747 or toll-free 1-855-252-5342 during their intake hours (Monday, Tuesday, Thursday, and Friday from 9:30 a.m. to 12:15 p.m. and Wednesday from 1:30 p.m. to 4:15 p.m.) or any time online by visiting www.communitylegal.org.

Attorney talking with clientLifePath supports Community Legal Aid (CLA) in providing free legal services to residents of Franklin County and Athol, Petersham, Phillipston and Royalston in Worcester County who are age 60 and over. We want you to know more about these services and how to access them. This help is available because the federal Older Americans Act provides funding to the state Executive Office of Elder Affairs for civil legal assistance throughout Massachusetts, and some of that money goes to LifePath, which then provides a grant to CLA.

Because the funding isn’t enough to allow us to provide full representation in response to each request for legal assistance, we are only able to assist with certain types of legal problems. The areas in which we are more likely to be able to provide advice or other assistance include: denials or terminations of MassHealth; housing matters (such as evictions, and denials or terminations of rental subsidies); denials, terminations or reductions of public benefits (such as unemployment insurance, SNAP/Food Stamps, Social Security/SSI/SSP, and state veterans services or ch. 115 benefits); and coverage denials and enrollment issues with Medicare. We also work with elders seeking assistance with issues of autonomy, abuse and exploitation.

In addition to looking at the type of problem for which our assistance is being sought, we try to determine the seriousness of the elder’s situation to ascertain whether we will provide a phone consultation to the caller; provide some level of legal assistance, which could involve representation in court proceedings; initially investigate the situation further on behalf of the elder before determining the role we can play; or provide some referral information, if possible. Low-income elders with family law matters such as divorce would be referred to our family law unit for a case acceptance decision and those seeking assistance with bankruptcy would be referred to our Volunteer Lawyers Service for free assistance from an attorney in private practice.

CLA is open for telephone-assisted screening Monday, Tuesday, Thursday, and Friday from 9:30 am to 12:15 pm, and Wednesday 1:30 pm to 4:15 pm. Elders may call toll free at 1-855-252-5342. CLA also has an online application on its website, which can be accessed at any time. Elders can also go to the Massachusetts Legal Resource Finder website, which identifies what types of legal problems are appropriate for referral to CLA. The Legal Resource Finder can also help elders locate additional resources on a wide variety of legal topics.

We at Community Legal Aid look forward to assisting you with your legal questions and concerns. We accommodate clients with mobility and transportation challenges by meeting with them in our satellite office in Greenfield or in their home, medical facility, or in another mutually convenient location.

Attorney Lisa L. HalbertAttorney Lisa L. Halbert, Northampton, 413-584-1287A friend of mine recently referred to estate planning attorneys as “professional pessimists.” As a self-described cheerful person, it stung a bit to be called a pessimist. But while the remark wasn’t personal, it was accurate. In fact, the more I thought about it, the more I realized that we estate planning attorneys would do well to consider our “pessimism” a vitally important part of our profession.

It’s true, we ask clients hard questions. We ask about illness, we ask about end-of-life, we ask about finances, family relationships, hopes, dreams, and expectations. Then, we work to plan for preferences and likely circumstances, while simultaneously trying to anticipate and plan for the unexpected.

A properly drafted Durable Power of Attorney document is one of the most important elements of estate planning. New clients often tell me they do not want Durable Powers of Attorney, because all their assets are jointly owned. While joint ownership of assets is sometimes desirable in estate planning, such designations do not replace the authority of a Durable Power of Attorney, which allows for transfers during lifetime.

Consider this common pattern: Two spouses are married and own their home. They want their estate plan to provide for the survivor between them, and then for their children. They also want to avoid spending their savings on end-of-life care. One spouse is older and ill, with the other spouse providing care for the first. They ask for Wills leaving all their assets to each other.

But I, now a Proud Professional Pessimist, must protect them by playing the “what if” game. What if the older spouse needs a nursing home? What if the younger spouse happens to die first? Without the proverbial “crystal ball” to tell us exactly what will happen and when, we run the risk that either or both spouses may require expensive (and potentially long-term) care in a nursing home setting, thereby jeopardizing assets they had hoped to leave behind for their children.

In a situation like this, the flexibility of the Durable Power of Attorney document is invaluable. The Agent named in a Durable Power of Attorney has the ability to transfer any and all assets, including the spousal home. Additionally, a properly drafted Durable Power of Attorney will allow the Agent to act quickly and in real time, as specific needs arise. Depending on each unique situation, this may mean transferring assets to or away from a spouse with a terminal illness, or in some cases transferring assets directly to children or loved ones.

These procedures are not appropriate for every situation, and naming an Agent to take charge of family assets requires very careful consideration. But when illness or infirmity strikes, and minds or bodies might no longer be capable, the Durable Power of Attorney document offers important protections.

Attorney Lisa L. Halbert practices law with the regional firm of Bacon Wilson, P.C. Lisa focuses her practice on all aspects of asset protection, including estate, tax, and long-term care planning, together with matters related to trusts and estates, probate, guardianship, and conservatorship. Lisa works primarily from Bacon Wilson’s Northampton location, and may be reached at 413-584-1287, or via email at This email address is being protected from spambots. You need JavaScript enabled to view it..

The views expressed in this column represent general information. To address your particular and specific needs, consult your own attorney. If you need help with referral to an attorney, contact the Franklin County Bar Association at (413) 773-9839 or the Worcester County Bar Association at (978) 752-1311. Elder law resources may be found through the National Academy of Elder Law Attorneys, Massachusetts Chapter, at massnaela.com or 617-566-5640.

Community Legal Aid (CLA) provides legal services free to people age 60 and older for civil legal matters with an emphasis on access to health care coverage (MassHealth and Medicare) and public benefits, as well as tenants’ rights. A request for legal assistance can be made by phone at 413-774-3747 or toll-free 1-855-252-5342 during their intake hours (Monday, Tuesday, Thursday, and Friday from 9:30 a.m. to 12:15 p.m. and Wednesday from 1:30 p.m. to 4:15 p.m.) or any time online by visiting www.communitylegal.org.

In August, 2018, Aretha Franklin, the “Queen of Soul,” passed away after a long illness at age 76. Earlier, in April, 2016, singer and songwriter Prince died at age 57 from an accidental drug overdose. Both failed to prepare estate plans. Aretha Franklin was gravely ill; Prince’s death was unexpected. Both were multi-millionaires leaving very sizable estates. Because neither prepared estate plans, their estates will eventually, and after a long time, be distributed to their heirs according to each of their state’s intestacy laws. Aretha Franklin’s heirs were her four living sons, one who has special needs, and Prince’s heirs were his five half-siblings.

Had both Aretha Franklin and Prince prepared their estate plans, they could have retained the privacy of their estates, there could have been an easy transition to the beneficiaries, and they could have avoided the probate of their estates. They also could have avoided much expense to their estates. There are now expenses of estate administration, legal expenses, and claims against the estates. There are also federal estate taxes due. Both were multi-millionaires, and both of their estates were well over the federal exclusion amounts. In 2018, the federal exclusion was $11.18 million for Aretha Franklin’s estate, and in 2016 the federal exclusion was $5.45 million for Prince’s estate. Because neither did any estate tax planning, their heirs will receive much less from their estates than they would have if there was estate tax planning because of the 40% federal estate tax rate.

Furthermore, if they both prepared their estate plans, their estates would have been distributed exactly as they wanted and not according to their states’ intestacy statutes. Aretha Franklin also could have made specific provisions for her special needs son. Prince could have also provided for those close to him instead of just his half-siblings, the heirs of his estate.

No one will ever know why both Aretha Franklin and Prince never did any estate planning. There are many possible reasons why people do not do estate planning. Some may mean to, but never get around to it. Others may find it intimidating or overwhelming. Finally, some may not want to think about it at all or are afraid to think about it.

The estate mistakes of public figures are lessons to all on how important it is to do estate planning, whether wealthy or not. It is also important if you have estate plan documents to review your estate plan every few years and sooner if your life and family circumstances change. This will ensure that your estate is distributed exactly as desired.

The views expressed in this column represent general information. To address your particular and specific needs consult your own attorney. If you need help with referral to an attorney, contact the Franklin County Bar Association at (413) 773-9839 or the Worcester County Bar Association at (978) 752-1311. Elder law resources may be found through the National Academy of Elder Law Attorneys, Massachusetts Chapter, at massnaela.com or 617-566-5640.

Community Legal Aid (CLA) provides legal services free to people age 60 and older for civil legal matters with an emphasis on access to health care coverage (MassHealth and Medicare) and public benefits as well as tenants’ rights. A request for legal assistance can be made by phone at 413-774-3747 or toll-free 1-855-252-5342 during their intake hours (Monday, Tuesday, Thursday, and Friday from 9:30 a.m. to 12:15 p.m. and Wednesday from 1:30 p.m. to 4:15 p.m.) or any time online by visiting www.communitylegal.org.

Pam OddyAttorney Pamela OddyThe topic of funerals is not the most pleasant one to discuss; however, the idea of a prepaid funeral is gaining more prominence especially when it comes to spending down one’s assets in order to become eligible for MassHealth. To not count toward the asset limit for these programs, the prepaid funeral arrangement must be “irrevocable,” that is, it cannot be changed. There is no “lookback” period for the purchase of a prepaid funeral.

It is always a wise choice to prepay a loved one’s funeral if that loved one (for example, a spouse or a parent) enters a nursing home for permanent placement. If a spouse is the one who must enter the nursing home on a permanent basis, it makes good sense to prepay the funerals of both spouses (i.e. the one who is in the nursing home as well as the spouse who remains in the home). Prepaying both funerals may become part of the spend down for MassHealth eligibility. Although it is a sensitive topic, I have found the area funeral directors to be quite helpful in guiding people in choosing funeral arrangements. I counsel my clients to be sure to have the funeral director include in the prepaid funeral the cost of minister/priest/rabbi as well as the cost of multiple death certificates.

In addition to prepaying the funeral, one may establish a burial fund account with a local bank. The total amount that can be deposited into this account is $1500. This expenditure is also an allowable one for MassHealth eligibility and may become part of the spend down. One may ask the question: why set up a burial fund account if the funeral is already prepaid? Theoretically, the burial fund account may be used to pay for a funeral luncheon and flowers and various extras that fall outside the parameters of a funeral. This account may not be touched until the person’s passing or else all of the money in the account becomes countable toward the MassHealth asset limit.

Prepaying a funeral will serve to take the burden off your loved ones because you will be the one making the decision as to what you want as well as which funeral home directs the arrangements. It will also settle any disagreement as to what you want and what your family members want for you; for example, you may want to be buried, but your family, if the decision were left to them, might have you cremated. If the funeral is prepaid, then the choice is already made, you have covered the expense and saved your family the financial burden and you will receive the funeral that you paid for.

The topic of funerals is not one any of us look forward to discussing but it is becoming increasingly important in any advanced planning.

The views expressed in this column represent general information. To address your particular and specific needs consult your own attorney. If you need help with referral to an attorney, contact the Franklin County Bar Association at (413) 773-9839 or the Worcester County Bar Association at (978) 752-1311. Elder law resources may be found through the National Academy of Elder Law Attorneys, Massachusetts Chapter, at massnaela.com or 617-566-5640.

Community Legal Aid (CLA) provides legal services free to people age 60 and older for civil legal matters with an emphasis on access to health care coverage (MassHealth and Medicare) and public benefits as well as tenants’ rights. A request for legal assistance can be made by phone at 413-774-3747 or toll-free 1-855-252-5342 during their intake hours (Monday, Tuesday, Thursday, and Friday from 9:30 a.m. to 12:15 p.m. and Wednesday from 1:30 p.m. to 4:15 p.m.) or any time online by visiting www.communitylegal.org.