Thinking of Writing Your Own Estate Planning Documents?

Thinking of creating your own estate plan? You may want to think again. In Massachusetts, there are dozens of cases where a Will or Trust has been challenged because an error was made in the signing or the drafting of the actual document.  Most mistakes are because the now deceased person never consulted a lawyer.

Potential mistakes made in a do-it-yourself estate plan have the potential to cost your heirs much more than you might have saved yourself in legal fees. If there is a chance that someone may challenge the will or trust, you do not want to make it easier for them to succeed because of a mistake that could have been avoided.

Even simple estates are ripe with “oddball” things that can go wrong. Especially with wills and trusts, there are many details that a layperson simply wouldn’t think of. A recent article in Forbes chronicles one story of a layperson who ran into trouble after making a simple clerical error in creating his do-it-yourself living trust.

The man used a pre-made form to set up a living trust in 1984. When he deeded his house to the trust, however, he dated it 1983 (one year before the trust was created). In 2009 the mortgage on the house was fully paid off and the man, now 75 years old, wanted to borrow against it. Due to the mistake he made 25 years earlier, the bank wouldn’t provide a loan because the man didn’t have a clear chain of title to his home.

Two weeks and $2,000 in legal fees later, the man was able to take out a loan against his house. Had he hired a law firm to draw up the original trust in 1984 it would have been much less stressful and only cost him about half the amount he eventually paid in legal fees.

Additional Resources:

Farrell v. McDonnell, 81 Mass.App.Ct. 725 (2011) (Will execution was proper despite the fact testatrix did not verbally acknowledge her signature in the presence of witnesses).

Flynn v. Prindeville, 327 Mass. 266 (1951) (Will execution was not proper because testatrix did not acknowledge her signature or identify document as her Will  in the presence of witnesses).

Article about the Battle over artist Thomas Kinkade’s Estate 

The battle centers around two hand-written notes presented by the artist’s girlfriend – Amy Pinto-Walsh – that appear to give her Mr. Kinkade’s house and $10,000,000. Mr. Kinkade’s estranged wife, and the mother of his four children, disputes the validity of both notes.  Ms. Pinto-Walsh was not included in any of Mr. Kinkade’s other estate planning documents.

Estate Planning With An IRA

Many people have some type of Individual Retirement Account that should be reviewed as part of the estate planning process. Since an IRA is part of the ultimate distribution, it is a good idea to contact the company managing the IRA account and confirm that the beneficiary designations are up to date, and accurately reflect your wishes.  This is especially important if a spouse has passed away since the original form was filled out – you want to make sure that contingent beneficiaries are designated.

[Note: This is also a good time to check all beneficiary designations, including life insurance and annuities.]

Naming a Trust Beneficiary of an IRA

If I am preparing a trust for a client, they frequently ask whether their trust should be named the beneficiary of the IRA. The answer is, “No, No, No.”  The reason for this is that if a person is named as a beneficiary of an IRA, they get to stretch out the remaining funds over their lifetime, resulting in lower taxes. However, since a trust is not a “person” it has no life expectancy. Thus, the entire amount remaining in the IRA is distributed, and all taxes are due immediately. It may be possible to convince the IRS that the trust was simply a conduit, and the real beneficiaries are people, but trying to do that would cost the estate legal fees that can be completely avoided.

Naming Charities as Beneficiaries of an IRA

If a client has charitable intent, naming one or more charities as beneficiaries of an IRA can work out very well. Unlike individuals, a charity will probably be able to avoid any tax on the distribution, and the estate will be able to take full advantage of the charitable contribution if estate taxes are required.

Naming One Person as Beneficiary, But Wanting Something Else

 Name the people you actually want to receive the IRA. If you name one person, but tell them that you actually want them to distribute it to other people is a bad idea. First, the person named will have to cash out the entire IRA to follow your wishes. The will have to pay the taxes on the entire amount. Second, if they are the sole listed beneficiary, they do not have to cash it out at all. Finally, if they do cash in the IRA and pay the taxes, they may have trouble actually making the distributions. The IRS allows any person to gift $13,000 per year, so if the distributions are more than that, they person designated will have to file a Form 709 Gift Tax Return with the IRS.

IRAs can be an important part of the legacy handed down to children and grandchildren. If designated properly, payments from an inherited IRA may be made for decades to the listed beneficiaries. To ensure this happens, check that the current designations reflect your wishes, that they are up-to-date, and if you have named your trust as the beneficiary, contact your estate attorney for a review of your planning.

Additional Information:

Five Rules for Inherited IRAs (

What is an Inherited IRA?  (money

Questions About Home Care and Assisted Living?

Get Answers to Your Questions

One of the things that makes elder law so different from other areas of practice is that elder law attorneys are often trying to put plans and solutions in place for their clients. Offering a client a complete plan frequently means putting together a team of people all focused on achieving the client’s goals. I am pleased to have been asked to join a presentation with such a team. We will be presenting a panel discussion on June 7, 2012 at 6:00 P.M., hosted by Maria Reid of Atria Maplewood Place, Malden, MA. There will be a light supper served, and the panel will offer their expertise in planning for senior living and care. Seating is limited, so please let Maria know if you wish to attend by June 1, 2012. You can reach her by calling (781) 324-4999.

We hope to cover as many issues as possible, including: how to safely remain in the home; how to transition to an assisted living facility; how to pay for the cost of an assisted living facility; the best way to prepare your home for sale; and whatever question you may have.

I hope to see you there!

On the panel are:

Karen Hurwitz: Visiting Angels, Medford, MA

Mary Lou Bigelow: Senior Real Estate Specialist at Bowes Real Estate.

Joy M. Camp, Ph.D.: C&Z Transitions, Melrose, MA

Dale Tamburro, Esq., Belmont, MA

Veterans Administration “Aid and Attendance” Benefit

On April 26, 2012 I will be giving a free seminar on the Veterans Aid and Attendance benefit at the Arnold House in Stoneham, Massachusetts. Fellow elder law attorney Nancy Hogan, Esq., and I will explain what this benefit means and how veterans and their spouses may qualify. The presentation is free and open to the public. However, seating is limited, so please call the Arnold House at (781) 438-1116 to reserve your seat.

What is Aid and Attendance?


Life Circumstances Dictate When To Update Your Will or Trust


As an estate planning attorney, I review lots of existing Wills and Trusts. Many of these documents were done years ago – and many of them still reflect the wishes of the client.

However, there are times when I get a call that goes something like this: “I think I need my Will/Trust changed. I just looked at it and it is not what I want anymore. I am going to [fill in exotic location] and I need it changed before I get on the plane.”

Documents done years before may have been perfect for the circumstances at that time. But, circumstances change: personal relationships evolve; assets may increase, so tax planning may be an issue not addressed in the prior documents; charitable bequests may be more important; or special needs planning for an heir may now be a necessary part of the plan.

Here are a few suggestions on when it may be time to have you documents changed – or at least reviewed:

  1. You did not have children when your documents were prepared.
  2. The executor or trustee you named is now over 70 years old.
  3. A beneficiary named in your documents has – or may have – a disability.
  4. A beneficiary named in your documents is in a nursing home.
  5. You want to give specific personal property to specific people.

Many attorneys will be more than happy to review your documents to see if changes are really necessary. It may be that you existing documents are perfectly fine, but if not, better to start the updating process now than wait until the day before your scheduled flight.

Additional Reading:

When To Change Your Will

Five Reasons Baby Boomer Need To Review Estate Plans – And It’s Not About Taxes


Massachusetts in the Top 5 – Of Costliest Retirement States


æ??ã??握ã?? released its 2012 list of the “Worst States to Retire.” It will probably come as no surprise to those of us that live here that Massachusetts finished fifth on the list – behind Connecticut, Illinois, Rhode Island, and Vermont. Among the reasons that Massachusetts made the list were high property taxes and the high cost of living. In the 2011 report, Massachusetts finished 8th.

Surprisingly – at least to me – was that Vermont finished in the fourth spot. In addition to the climate, the article cited very high property and income taxes as the reason. Only five factors were use to compile the list: fiscal health, property taxes, income taxes, cost of living, and climate. If those factors are not important to you, TopRetirement offers a site where you can customize your report.

The article acknowledged that there may be more important factors to people contemplating retirement: proximity to family and friends, social services, and the quality of medical care.

Additional Information:


National Honor Society Students Offer “Handyman” Services to Winchester Seniors

For four weekends in March, the National Honor Society of Winchester High School will be offering their time, talent, and “elbow grease” to provide help with any jobs that are needed throughout Winchester. The students will be in teams of two, four or six depending on the size of the job, they will be providing assistance to those who cannot get to all the jobs on their to-do list. Students are available for such tasks as painting, raking, shoveling, cleaning, shopping, moving, etc. Community members may schedule the students for just one task or a number of activities for which they might need more manpower.

Students are available to work:

March 3-4;

March 10-11;

March 24-25;

March 31 – April 1

Please contact the National Honor Society Advisor directly to set up as appointments are not made through the Jenks Center.  Please email [email protected]  or call Nancy Smith at 781-721-7020 to schedule and to add your name and task to the list, along with what weekend day works best.  Arrangements will be made to coordinate the effort.

Finally – Social Security Increase Scheduled for 2012

The Social Security Administration announced that starting on December 30, 2011, social security recipients will receive a 3.6 percent increase in benefits. Increases in social security benefits are based on a cost of living adjustment (COLA). For the first time since the automatic COLA adjustment was put in place (1975), there were no increases in benefits for 2010 and 2011.

The average monthly social security check is $1,082.00. With the 2012 adjustment, that will mean an additional $39.00 per month. The largest increase was in 1981 when benefit checks increased 11.2 percent.

More Information:
Social Security Administration: How COLA is Calculated

Social Security Administration: Chart of COLA Increases from 1975-2012

Estate Planning and Elder Law Newsletter: Estate Administration

Every month I send an E-Newsletter that has articles on estate planning and elder law topics. If you would like to subscribe to this E-Newsletter please feel free to sign up.

This months topic is Estate Administration. When someone passes away, the executor or successor trustee responsibilities start. Their primary job is to protect and manage the assets in the estate, and to then distribute according to the written instructions you have left in either your Will or Trust.

To accomplish this, it is extremely helpful if the executor or trustee is able to quickly locate the estate assets. A list of current bank accounts, brokerage accounts, retirement fund information, life insurance policies, and a list of advisors will help the fiduciary get started. No values need to be listed, since that can fluctuate. A simple list of assets and the institution where they are located will be enough to put them on the right road.

For my personal clients, I provide an Organizer for their Estate Binder that they can complete and update as their holdings change. If you would like a copy of this Organizer, please email me and I will be happy to send one to you.[email protected]

Additional Information:

The Duties of an Executor in Massachusetts: Four Things You Need to Know

NY Times Article Estimating Hundreds of Millions of Dollars of Life Insurance Goes Unclaimed