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Apr 10, 2018

Another Lawsuit Complicates the Aaron Hernandez Matter

According to the Boston Globe, a new lawsuit filed in the Aaron Hernandez matter has created complications.

Shayanna Jenkins Hernandez, the mother of Aaron Hernandez’s daughter, has filed suit against the estates of three men the former New England Patriots star was accused of killing. She is seeking to guarantee that her child will receive proceeds from the sale of Hernandez’s former home.

Hernandez, who was a former NFL player, committed suicide in 2015. He was convicted of killing one person and acquitted of killing two others.

His only daughter was his heir, but his estate had very little liquidity. His home, valued at $1.3 million dollars, was the only significant asset. The families of the three people Hernandez was accused of killing filed suit against his estate for the value of the home.

Hernandez had filed for a homestead exemption in Massachusetts in 2013, allowing him to protect up to $500,000 of the value of his home from judgments and creditors. However, the personal representative of the estate waived this exemption.

Shayanna Jenkins Hernandez has recently filed a lawsuit seeking a judgment that the homestead exemption filed by Hernandez still applies to his daughter and that the estate cannot waive it for her. By doing so, she hopes to secure her daughter’s inheritance.

The court has issued a temporary order that $500,000 from the sale of the home be held in escrow pending resolution of this issue.

Reference: Boston Globe (Feb. 24, 2018) “Another lawsuit emerges in the Aaron Hernandez legal saga.”

May 15, 2017

Aging In Modern Families Brings New Challenges

A recent study, conducted by Amy Ziettlow, a Lutheran minister, and Naomi Cahn, a law professor at George Washington University, reveals that current approaches to elder care and inheritance are outdated. The current model presumes a lifelong connection between parents and children, with shared values and beliefs among family members. However, the modern family structure has become much more complex.

Today, 40 percent of Americans consider step-relatives to be members of their families, and the divorce rate for for adults over the age of 50 has roughly doubled in the past 25 years. Single parent families, and families with re-married parents, are far more complicated, and require more support from medical, legal, and religious professionals than traditional families do.

The authors interviewed individuals whose mother, father, stepparent, or ex-stepparent had died. The survivors’ stories illustrate the profound ways that the care-giving and inheritance process has changed.

The researchers suggested solutions that focus on awareness and preparation, such as providing more support for the individual planning for incapacity and/or death. If you have a loved one who is facing incapacity or end-of-life decisions, encourage him or her to begin planning as soon as possible.

Reference: Amy Ziettlow & Naomi Cahn, Family Scholars Find Modern Families Need Extra Help When a Loved One Dies, Homeward Bound: Modern Families, Elder Care and Loss, April 10, 2017.

Sep 19, 2016

Will a Living Trust Shield My Property From Creditors?

Some people believe that a living trust can protect their assets from creditors. This is not true!

The property in your living trust can be reached by your creditors during your lifetime. This is because you have complete and exclusive power over the property in your trust while you are living.

On the other hand, if the property is transferred to an irrevocable trust, the legal result is completely different. Property transferred to a bona fide irrevocable trust cannot be reached by your creditors. This is because you no longer have control over property placed in an irrevocable trust.

The property in an irrevocable trust is only shielded from your creditors if it is a “bona fide” irrevocable trust. If you set up an irrevocable trust solely for the purpose of defrauding creditors, it is not a bona fide irrevocable trust.

If you have questions about living trusts, please do not hesitate to contact my office.

Aug 19

What Is An Estate Plan?

Your estate is comprised of the assets you own. It includes your home, car, bank accounts, investments, life insurance, furniture and personal belongings.

A basic estate plan has two major components: (1) an incapacity plan, and (2) a wealth transfer plan. The incapacity plan goes into effect if you are ever unable to manage your own affairs, due to illness or injury. The wealth transfer plan goes into effect after you pass away. It transfers your property to your loved ones.

Incapacity Plan

A well-prepared estate plan provides detailed instructions for your care and the management of your assets if you ever become incapacitated, even for a short time, due to illness or injury. If you become incapacitated without the proper documents in place, your family will have to go to the probate court for permission to manage your assets. They will also have to get court permission to make medical decisions for you, if you are unable to speak for yourself. The process is costly and time-consuming, making an already difficult situation even more stressful for your family.

Wealth Transfer Plan

No matter how large or how small your estate is, you can’t take it with you when you pass away. You probably want certain people to have the property you now own. To make sure that happens, you need to provide written instructions. Your instructions should clearly outline who should receive your property, what you want them to receive, and when they are to receive it. State laws, which take over in the absence of estate planning, often distribute assets in an undesirable way.

Estate planning is especially important for those with young children. If you have young children, you will need to name someone to care for them, and to manage their inheritance. You will probably also want to provide detailed instructions regarding their care.

It may surprise you to know that having an estate plan in place often means more to families with modest means. This is because they are less able to afford the court costs and legal fees that result from not having an estate plan in place.

If you have questions about estate planning, please contact my office.

Aug 17

Who Controls My Living Trust If Something Happens to Me?

If you have a living trust, you might wonder who would manage your trust property if you were ever incapacitated by an illness or injury, or if you suddenly passed away.

If you have a living trust, and you and your spouse are co-trustees, either can act and have instant control if one of you becomes incapacitated or passes away.

If something happens to both of you, or if you are the only trustee, the successor trustee you personally selected will step in. If a corporate trustee is already your trustee or co-trustee, they will continue to manage your trust for you.

If you become incapacitated, your successor trustee looks after your care and manages your financial affairs for as long as needed, using your assets to pay your expenses. If you recover, you resume control. When you die, your successor trustee pays your debts, files your tax returns and distributes your assets. All can be done quickly and privately, according to instructions in your trust, without court interference.

Successor trustees can be individuals (adult children, other relatives, or trusted friends) and/or a corporate trustee. If you choose an individual, you should also name some additional successors in case your first choice is unable to act.

If you have questions about living trusts, please contact my office.

Aug 16, 2016

The Estate Planning Documents You Need For Managing Financial Matters During Incapacity

There are two legal documents for managing finances that need to be in place before an incapacitating event ever happens:

Financial Power of Attorney

This legal document gives your agent the authority to pay bills, make financial decisions, manage investments, file tax returns, mortgage and sell real estate, and address other financial matters.

There are two types of financial powers of attorney: (1) durable, (2) springing. A durable power of attorney goes into effect as soon as it is signed, while a springing power of attorney only goes into effect after you have been determined to be mentally incapacitated.

Revocable Living Trust

This legal document has three parties to it: The creator who creates the trust, the person who manages the assets transferred into the trust (the Trustee), and the person who benefits from the assets transferred into the trust (the Beneficiary). In the typical revocable living trust situation you will be the creator, the Trustee, and the Beneficiary of your own trust. However, if you become incapacitated, then your Successor Trustee will step in and manage the trust assets for your benefit.

Your Revocable Living Trust should contain provisions to determine your mental status through a private process (such as a disability panel, the opinion of an attending physician, the opinion of two physicians, or some other method) instead of a public court process. In addition, the trust agreement should contain specific instructions about how to take care of you if you are declared mentally incapacitated.

If you have questions about planning for incapacity, please contact my office.