DGVE law Blawg

Legacy Building Through Estate & Income Tax Planning

2011-11-29T12:17:00.001-05:00

First and foremost let us observe that there are legally permissible strategies that enable us all, if we so choose, to reduce the amount of taxes we owe to our state and/or federal government. As with all other laws, the tax code is a highly politically-charged creation and subject to frequent and widespread changes. Depending on the particular political administration and congressional makeup of any given time, the way the taxes collected will be used also vary widely. If we choose to have more of a say in how and where our dollars are used, then we can choose to direct our efforts in those directions purposefully and meaningfully to us rather than leave it up to the shifting political winds to scatter our money where they may.

While it may be true that the only two certainties in life are death and taxes, paying the full amount of taxes without using lawful means to redirect our money where we might prefer is completely voluntary and made possible through a total lack of inaction on our part. With a minimum expenditure of time and energy and legal fees totaling but a small fraction of the amount we can save in taxes and redirect, it is possible to provide as fully as possible for our loved ones, create living legacies we can observe and appreciate during our lifetimes, and leave lasting legacies that respect our individual and highly personal values and beliefs.

As I like to explain to my clients who come to me with no estate plan in place yet, what they essentially have is a nice empty lot on which to build. The first step then is of course creating a solid foundation. That solid foundation may be a will-based plan for those especially without minor children, very limited assets and no estate tax liability, non-blended families, and no other complicating or special factors to consider. For those with minor children, blended families, and/or estate taxable estates (in Massachusetts this means having assets, including life insurance, retirement, and home equity, that totals over $1 million dollars), the solid foundational plan may be a fully-funded revocable living trust-based plan instead of a will-based plan. With either of those in place you'll have a nice home in which to comfortably and securely live.

The next step may be to build an addition, put in a pool, add a guest house or barn or garage (you get the idea!). Depending on your needs and preferences, there are various additional estate planning techniques available. Many of those are able to reduce estate taxes payable to both the Commonweakth of Massachusetts as well as to the federal government. Some techniques, including gifts to charities through certain trusts, can also affect your income taxes. Your estate planning attorney can work together with your accountant to help identify and propose the best possible options to take advantage of the existing rules to reduce income taxes, reduce estate taxes, and accomplish your overall estate planning goals and help you leave the legacy you want.

Zombie Apocalypse Estate Planning - Final Wishes

2011-11-17T00:27:00.001-05:00

The Walking Dead has made me realize yet another question I may be missing on my estate planning intake worksheet: What are your final wishes in the event of a zombie apocalypse?

If you too are watching this series you know it's fairly terrifying and psychologically devastating as well. So watching it recently with my husband, who happens to be a bit of a zombie expert, we delved into this conversation.

Here are some possible end of life scenarios you may wish to discuss with your better half:

1. Would you like a Reliving Will™ by my clever cousin to express your personal preferences regarding your end of life care in the event you are bitten by a walker? If so, whom would you like to name to express those wishes for you in the event you are not able to express them yourself? Whom would you like to name as backup in case that first choice has already become one of the living dead? And as a backup to that backup? And just to be safe, how about one more?

2. In the event you are bitten, infected, and have become unconscious how long should your loved ones wait before destroying your brain: until you die initially or until they are sure that you have come back from the dead with an insatiable and indiscriminate hunger for human flesh?

3. Just to be clear, in the event your life functions cease and you reanimate as one of the living dead, would you want your surviving loved ones to keep you contained in a barn like cattle or would you prefer a quick execution? Keep in mind, scientists (if they are not all zombies by then) may be trying to formulate a cure.

Please let me know what else I'm missing from this line of questioning!

2 Roots - 1 Strong Tree

2011-11-07T12:12:00.002-05:00

November is National Adoption Month.

If you have recently adopted a child, congratulations! Adoption is a beautiful gift all around.

I love this image by Olive Tree Alliance showing the two roots leading up to one strong family tree.

Please remember after your adoption is complete to make sure you incorporate your wishes for your whole family into a comprehensive estate plan that reflects the shape of your family. Honor your child by helping to ensure continuity of care and predictability for your child in the event anything should ever happen to you.

Wishing you and your family the very best, always.

Sincerely,

Danielle

Real Estate: Estate Sales & Probate

2011-10-17T19:28:00.001-04:00

My colleague, real estate expert Rich Vetstein, recently posted a good primer on his Massachusetts Real Estate Law Blog about sales of real estate after people have passed away. I am reposting it here for you in its entirety, with Rich's permission. I especially like the last part he added! {Smile}

After every Closing, I conduct a "Post Closing Asset Review" to advise all my Real Estate Buyer and Seller clients about the changes their real estate sale and/or purchase made to their current asset structure and what that means for them in terms of their estate planning legal needs. Sometimes the real estate transactions necessitate tweaking existing plans a little, other times the changes call for a brand new (or first) estate plan, Wills and/or Trusts and all, and sometimes everything is in great shape and no changes are needed at that time at all!

If you have questions about how your recent Massachusetts real estate purchase or sale affected your estate plan or you're wondering if you really need one just yet, give my office a call at (781) 740-0848 x.2 and my Client Liaison & Paralegal, Astrid, will be happy to answer some initial questions to see if you'd like to schedule a meeting with me to review your situation and/or current estate plan and analyze your present needs.

Death and Taxes: Estate Sales, & Probate Issues in Massachusetts Real Estate Practice
by Rich Vetstein October 13, 2011

Benjamin Franklin once said famously that “the only certainties in life are death and taxes.” That’s certainly true in real estate practice. Today, I will go over how real estate passes when the owner dies – with a will or without a will – and how the probate process affects the real estate process.

Tenancy by the Entirety
Married couples in Massachusetts are recommended to hold real estate as “tenants by the entirety.” It’s a special form of joint tenancy for married couples. If one spouse dies, the surviving spouse succeeds to full ownership of the property, by-passing probate. By law, tenants by the entirety share equally in the control, management and rights to receive income from the property. Property cannot be “partitioned” or split in a tenancy by the entirety. A tenancy by the entirety also provides some creditor protection in case one spouse gets into financial distress as creditors cannot lien the non-debtor spouse’s interest in the property.

Death Without A Will—Intestacy Laws

Clients were often surprised to learn that when one spouse dies without a will, the law of intestacy in Massachusetts leaves a portion of the estate to the surviving spouse and a portion to the decedent’s children. This is changing as of January 2012 with Massachusetts’ adoption of the Uniform Probate Code. Under the “UPC,” if a spouse with children of the marriage dies, the surviving spouse gets the entire estate, including the marital home. If there’s no surviving “descendant,” or child, of the deceased, but a surviving parent of the deceased, the surviving spouse gets the first $200,000 of the estate, plus 75% of the balance of the estate. The laws of inheritance remains rather complicated to explain fully here. A good guide to the new Uniform Probate Code can be found here.

Death With A Will — Testate
The basic rule is that if the owner dies with a will, which includes a power to sell real estate, the executor or administrator of the estate is generally authorized to convey title without further authority from the probate court. If the will does not provide for a power of sale, the executor will have to obtain a license to sell from the probate court. If a final account has been filed and allowed, the heirs (in the case of an intestacy) or devisees (in the case of a will) are able to convey title.

Missing Probates
If the title examination turns up an interest that is not accounted for by a probate, and the death of the interested party occurred less than 25 years ago, a probate may need to be opened to convey the property. Deaths over 25 years old where a special affidavit has been filed, may pass without probate.

Federal & Massachusetts Estate Tax Liens
A federal and state estate tax lien arises immediately upon death and attaches at the time of death to the gross estate of the decedent. The gross estate includes all property, wherever situated, that the decedent owned or in which the decedent had an interest at the time of death. The threshold for federal gross estates for 2011 and 2012 is $5 Million for an individual and $10 Million for a couple. The Massachusetts estate threshold remains at $1 Million. For estates below those amounts, the executor must merely file a simple Affidavit of No Estate Tax Due. Estates over the thresholds must file the more complicated release of lien from the Department of Revenue which requires the filing of a full estate tax return.

Bought A House? Get A Will!
After every closing, I always have a chat with my new buyers about setting up a will and other estate planning vehicles. It’s very important on all fronts. For those in the MetroWest area, I recommend Julie McQuade Ladimer, Esq. of Framingham (email: jml@michaelgatlinlaw.com; Tel: (508) 788-0028. For those on the South Shore, I recommend Danielle G. Van Ess, Esq. in Hingham (email: info@dgvelaw.com; Tel: 781.740.0848. Both are very good and well regarded estate planning attorneys.

Julie Ladimer, Esq.

Danielle Van Ess

____________________________________
Richard D. Vetstein, Esq. is an experienced real estate attorney who’s handled over 1,000 closings. Please contact him if you need legal assistance purchasing residential or commercial real estate.

Why Jointly Held Accounts Are Not The Best Plan for Families

2011-10-11T12:38:00.003-04:00

In trying to seek help from one's adult children or help out one's aging parent, joint ownership may seem an attractive and inexpensive option, yet it is another case of best intentions with some serious possible unintended consequences. My friend and colleague, Mike Lichterman, of Lichterman Law in Michigan recently posted here in response to a Forbes.com article on the perils of joint account ownership between parents and adult children. Mike nicely summarized the high points of the article and with his permission I've reposted his post below, though I too suggest you read the entire Forbes article yourself.

Why NOT To Use Joint Accounts As Your Estate Plan
October 2, 2011

You may remember that I wrote about some of the downsides to jointly owning assets in this previous blog post. Well, as with all good stories, that wasn’t the end of it and the topic continues to come up. Forbes.com had a recent article entitled “Top 5 Reasons to Beware of Joint Ownership Between Generations.”

Rather than reproducing the article, I will touch on the high points . . . please read the entire article. Unlike my previous post covering a wide view of why not to use joint asset ownership as an estate plan, this article focuses on the top reasons related to joint ownership among different family generations. I’ve heard more than one parent who shared with me that they were told to “just add your child to your bank accounts, financial accounts, and home to assist with financial issues and plan your estate.”

Here are the reasons the Forbes article gives for why that is a no substitute for proper estate planning:

The assets are subject to the child’s creditors;
The assets are subject to the child’s ex-spouse in cases of divorce;
The assets are subject to “borrowing” by the child. Borrowing is in quotes to signify that this is a case where the child, because he or she is equal owner on the account with mom or dad, uses the account for their own purposes - promising (or not promising) to pay it back.
The child who is on the accounts with mom or dad gets all of those assets when the parents pass away. That’s right . . . all of it! Much to the chagrin of their siblings, other family members, and maybe even charities that mom or dad supported.
Many times #4 can lead to family infighting.

Another critical factor making this a big “no no” in many situations is that by owning the assets jointly with their children, the parents are giving up control and risking complications that many would never think of happening.

As the article points out – it is better to have a comprehensive estate plan in place and to work with a Michigan attorney who focuses on estate planning. A good estate plan allows you to keep control of your “stuff,” receive assistance when needed, avoid probate court after death, and eliminate questions about your true intentions.

The Bigger The Children, The Bigger The Problems

2011-09-29T10:35:00.000-04:00

In my last post I wrote about the mama and papa bear urge we parents of young children feel to protect our young children from all the possible harms that could befall them. It is an exhausting part of the rewarding parenting job! But since my firstborn was a baby I've been told, "the bigger the children, the bigger the problems." I remember well how hard it was just to get a shower and get out the door to anywhere back then, but now that she's a toothless, almost 7 year-old little person, I reluctantly agree with that foreboding advice as I pine for the days when my "baby" was still a totally portable, adorable little newborn.

The more experienced parents tell me all the time that this instinctive urge to protect and provide for our children doesn't mysteriously vanish once our babies turn 18! We might not worry so much about keeping their fingers out of electrical sockets and preventing them from accidentally falling down stairs anymore, but we may just worry a lot that they could be involved in a car accident that injures another person. We think we'll sleep when our little ones are older but apparently we'll lie awake waiting for them to come driving home on their own (this terrifies me). We might worry about the people they choose to marry. We might worry that they'll develop bad habits that could hurt them or others.

When those are the kinds of things worrying us, we might want to ensure that everything we've worked so hard to provide for them isn't gone in the blink of a lawsuit, divorce, or gambling spree. There is an easy solution to that though. It's a kind of babyproofing for our grown babies. Rather than leave whatever assets we may have for them outright, directly into their individual bank accounts, we can set our children up for the best possible start to their adult lives by protecting those assets and leaving them in trust for our children's benefit. And no, having a trust is not just for the very wealthy.

Having a trust won't make our children spoiled, rotten "trust fund babies" of the reality show, tabloid news ilk, especially if we provide clear guidance about how the money we leave our children should be used. Of course our first job is to teach our children directly the financial lessons that will help them in life. We have to demonstrate the positive lessons things we were taught or explain how we learned the hard way.

But if we're not around when our children are old enough to really understand? What if we're not here when our kids are most receptive to learning those lessons in their own early adulthood? Well then it's our job to leave those lessons for them, in our own words, to help provide security for them while they're figuring it all out for themselves. Setting up a continuing trust for our children is just another selfless act of love that we parents can do now to help ensure our babies' futures are as bright as can be.

Protect Your Child From Sugary Beverages And...

2011-09-14T13:00:00.000-04:00

So I'm in the waiting room at the radiologist's office the other day, waiting for an x-ray of my 2-year-old's adenoids (for the second time, because asking a toddler to hold perfectly still for an x-ray is not exactly the easiest thing, folks!), when I see this new commercial on the waiting room TV.

Like most other fortunate parents, we too have managed to accumulate quite the collection of child-proofing and safety devices. We watch what they eat carefully, apply sunscreen and bug spray. We make our children wear helmets to ride their bikes and ensure their car seats and booster seats are safe and secure. I'm sure you do all of that and more to protect your children too! We hope they'll go to college someday and started college savings accounts for them at birth to plan ahead. (OK, they're small and nowhere near enough to pay for college, but the good intention was there! See this post on Forbes.com by Kelly Phillips Erb, a Philadelphia tax lawyer on this that made me laugh with empathy.)

But in all this planning ahead for your children and protecting them (quite often from themselves!), there's just one thing you may have been forgetting that is worthy of a similar ad campaign: you need to protect your children from the risk of compounded trauma if their parents are ever injured or ill and incapacitated for awhile and also protect them from the risk of losing their parents forever. It's easy to push these thoughts out of your head or dismiss them as unlikely to happen and therefore not worthy of your scarce time or fierce competition for your attention, but you shouldn't and here's why.

While it is true that it is unlikely for you and your child's other parent to both die prematurely while your children are still minors, stuff does happen; it's not impossible. I read about and see it all the time in my line of work. As my colleague, George Constant, recently put it in his own blog post, that's precisely why we don't think twice about buying life insurance as a precaution. It's not likely to happen, but it would be so bad if it did. And it's so sad when it happens and that's what leads their surviving friends and family to my office to plan for their own families to ensure that the same never happens to them. Why wouldn't you want to be the one to decide who should raise your children in the unlikely but possible event of your deaths?

What is far more likely to happen is that at some point you and your child's other parent may be temporarily unable to return home due to accident, injury, or circumstances out of your control. You need a clear plan for who is to take care of your child in your absence until you are well enough to return home and do so yourself. You may need someone to manage your financial affairs for a short time. You might need someone to express your medical wishes. These aren't pleasant thoughts, but wouldn't you prefer to think about these things and make a clear plan while you are healthy and well and not in crisis? Wouldn't it be better to choose the people you want to make your medical decisions and speak on your behalf if you can't than to have your loved ones possibly disagreeing about what you might have wanted? Wouldn't it be better to find and establish a relationship with a lawyer you trust before you need legal intervention in a crisis situation or during a period of mourning?

And then there's this. From what I hear (all the time!), the urge to protect and provide for your children doesn't mysteriously vanish once those children turn 18! More on that in the next post....

For now, please do yourself and your family a huge favor and have your existing estate plan (your Will, Health Care Proxy, Power of Attorney, etc.) reviewed to make sure that you understand it completely and it is structured to do what you want it to do when the time comes for it work in practice. And remember, it's your estate plan so you can make it what you want it to be. You don't have to settle or squeeze into a plan that doesn't fit your family. If you don't have a plan in place yet, the time is now, while you can.

How to Convince Your Spouse to Get Started with Estate Planning

2011-09-05T22:06:00.002-04:00

The following is a friendly kick in the pants written with love by my friend and colleague, Candice N. Aiston, a fellow Estate Planning Attorney for families in the Portland, Oregon area. Candice and I share a common focus in our practices, which is how we first connected. Candice helps loving parents to prepare their families for a lifetime of security, prosperity, and guidance. If you would like to receive her free report, "The 9 Common Planning Mistakes Parents Make," please visit http://candiceaistonlaw.com/.

This was a fun read for me and I hope you'll receive it in the same vein it was intended. You can read along substituting Danielle G. Van Ess and DGVE law, LLC throughout as it all applies equally here!

How to Convince Your Spouse to Get Started with Estate Planning

Sometimes the biggest hurdle to getting your estate plan in place is that you're not the only decision-maker in your household, and your spouse is not on board with getting started, for one (insaaane!) reason or another. It's very important that both partners understand WHY they need an estate plan and WHAT the important elements of that plan are. To help you convince your spouse that it's time to call and make that appointment, I have put together a fun and friendly guide to some of the common objections by reluctant spouses, and what you can say to let them know that you hear them...but that you have a LOT to lose and that it's time to move forward already.

1. "We can't afford it."
Honeybabe, we can't afford NOT to do this! This is one of those things in life that we have to FIND a way to afford, because we have too much to lose if we neglect this important planning. Taking care of our family is our highest value, and if we don't plan for the care of our kids and assets if something happens to us, the kids could end up with the wrong people, and they could lose several thousand to several hundred thousand dollars in lawyer fees and taxes! Besides, Aiston Law LLC offers payment plans, so there's no reason not to call and make an appointment!

2. "I don't have time."
Sweetcakes, this is a priority for our family. We need to MAKE time to do this. Just like you would take off work for a doctor's appointment, you need to find a way to get to these lawyer appointments. It's going to take a heck of a lot more time for our family to sort out the mess if we don't get something in place. Besides, all we have to do is show up, hear about what our situation looks like, decide on a plan that works for our family, and let the lawyer do the rest! We'd come in once more to sign the documents, and then once more for a final appointment. Then we're set until our three-year review!

3. "We don’t have a lot, so we don’t need this level of complicated planning."
Darlingface, when did you go to law school and then spend years afterward learning about the intricacies estate planning? Never? Then you don't really know what our estate looks like, what dangers our family faces, or what kind of planning would be best for our situation. From what I have already learned, each family is quite unique, and the only way to know what we need is to see an estate planning attorney who can help families like ours.

4. "I can get a will done through my work/ Pre-Paid Legal/ LegalZoom/ on the internet."
Lovelydearest, from what I understand, these employer programs like Pre-Paid Legal force lawyers to agree to a ridiculously low fee, which makes me think, "What could I possibly be getting for this amount of money?" I hear that most reputable estate planners won't sign up for these programs, and so most of the attorneys are general practitioners. How are they going to tell us about changes in the law and how specific aspects of estate planning affect our family? And how much will we have to pay if we call the lawyer later on down the road or need followup work done? As far as Legal Zoom and the internet go, Legal Zoom is actually being sued by several people's estates, who claim that the documents didn't even work! I don't want to take the risk that my plan doesn't work and let my kids suffer for it.

5. "My uncle/ brother/ college buddy is a criminal defense/ bankruptcy/ personal injury/ corporate attorney, and he said he could do our wills."
Cupcake, Uncle Bob is the first guy I'll call if I'm ever accused of a crime, but he's not an estate planning attorney. Ask Uncle Bob if he thinks Candice Aiston should take on a criminal defense client! Estate Planning attorneys live, eat, and breathe this stuff. They work all day long on solving estate planning puzzles and problems, and when they're not officially working, they're socializing with other estate geeks and reading estates materials and attending estates seminars. Uncle Bob doesn't do all that stuff, so how will he know when there's a change in the law that affects our family, or if we have some sort of complicated family or financial situation?

6. "This is just going to be a big giant pitch that I don’t need."
Sugarbuns, there IS going to be a pitch. That's what people who believe in their business do. They ask you to go forward with their services. But it will be a pitch we need, otherwise there will be no pitch. If Candice doesn't think she can help us, she'll let us know. She'll first show us what we stand to lose, and then show us the various ways we can avoid those dangerous scenarios. The good thing is that we get to choose our level of planning and we'll know exactly how much we'll be spending. No hourly fees. It even includes a free plan review every three years.

7. "Who is this Candice Aiston person, anyway?"
Angelheart, if you don't know Candice Aiston, you'd better take a look at her website, read her free report, or check out her awesome blog. Candice puts together the most useful information about estate planning for families like ours, and she frequently writes and speaks about these issues. She has a workshop that she gives at preschools and moms groups all over Portland called "Getting Your Ducks in a Row," and she's even writing a book for parents! She's the best choice for parents who want the very best in life for their kids. Let's call right now to make that appointment!

[As you can tell, I had a bit of fun with this post. Hope you enjoyed it.]

To your family's health & prosperity,

Where There's a Will

2011-08-09T13:19:00.004-04:00

The following is a great post by another attorney-mama who blogs regularly over at "Don't Mind the Mess where this originally appeared." Here Jess wears both her lawyering and parenting hats and shares her recent experience of seeking and obtaining priceless peace of mind by completing her family's estate plan. Feel free to congratulate her here or there! We'd also love to hear your experience with setting up the what-if (when) plan for your own family. Where are you in the process and why? What questions do you have about it? But first, here's Jess...

It took us 746 days, but we did it.

We finally have our wills.

Honestly, as a lawyer, this was one of those things that would wake me up at night. As a parent it was something I thought about constantly.

We really should’ve done it before Graham was born. Because if you have kids, a will is no longer something you do if you have lots of cash. It’s now a necessity.

First let me put on my lawyer hat. (I do it every now and then.) You can’t just tell people what you would want. In most states, you can’t just write it down. You definitely don’t want to type it up. (In states that do recognize handwritten wills, it MUST be in your own handwriting. Plus, this sucks and will throw everyone into court to prove it’s your handwriting, etc.)

(Also, a little morbid lawyer will humor: Perhaps the strangest will ever written was done on a tractor fender, by a guy pinned under the aforementioned tractor. You really don’t want to resort to those measures. Or writing it on your nurse’s petticoat. This is the kind of stuff I remember from Wills & Estates class. Lots of funny stories about dead people.)

Ahem. Anyway. Don’t just get a form off the internet. There’s no guarantee that will work. Get yourself a lawyer. Tell them what you want. Ask for their advice. That person will be there to store your documents safely, to make changes, to file them with the court when the time comes, and to serve as a contact for your family members should anything happen. The last thing you want is to leave your family scrambling with court hearings and craziness. Cuz if you do it wrong or you don’t do it at all, that’s what’s going to happen.

Now let me switch back to my parenting hat. Imagine something happens to you, your spouse, your partner, etc. Who is with your kid? Who is going to watch your kid? Who are the authorities going to give your kids to? This, to me, is the nightmare scenario. Something has happened to me, I’m dead or incapacitated, and my kid is taken to Child Services because that’s what they do. They won’t just drop them off at the neighbor’s house. They won’t call your best girlfriend. Even if your parents live a few miles away, they may not have their contact information.

Whereas, if you have a little card in your wallet with your lawyer’s info, and a note on the fridge with the contact information of your Temporary Emergency Guardians (you want more than 1, just in case) and have made sure already that your Temporary Guardians know who to call and your family knows what to expect, it will go a lot better. Not great, but better.

There are other things you want besides just a will. You want Power of Attorney, you want to leave instructions for your medical care (including HIPAA authorizations and medical proxies), you want instructions for your funeral arrangements, you need to decide how best to leave your assets to your loved ones.

As a special needs parent this is a big challenge. I’m getting ready to write up what I expect to be an extensive document with information about all the Bug’s therapy providers, giving my wishes for transitioning, and passing along as much information as I can about the kind of care he needs. And I expect to update that document every few months.

I also feel extra pressure because leaving guardianship of a special needs child is an even bigger burden to pass along. We expect that as the years pass it’s likely that we’ll shift our guardianship plans from one family to another as everyone’s needs change and as Graham’s needs become more clear.

I know this isn’t the kind of thing we talk about much as parents. It’s depressing. We don’t like to think about it. But things can happen when you don’t expect, and the last people you want to leave reeling anymore than necessary are your closest friends and family.

So do them a favor and get your will made. Update it regularly. Get a lawyer you trust. (If you live in the Boston area, I know a great one.) Ask friends for a recommendation or check with your local bar association.

This is that stuff they call Peace of Mind.

I don’t necessarily know what’s going to happen to me in the future. But I know I won’t wake up in the night worrying anymore.

Legal Docs You Need Before Leaving Your Little Ones

2011-08-03T14:48:00.000-04:00

The Stork Fund was kind enough to link to this blog for helpful tips for parents everywhere preparing to leave their little ones then hurry right back home again (to quote from one of our favorite books around here, Mama Always Comes Home).

The Stork Fund's article had me laughing out loud, nodding in agreement, and checking my calendar again to see when on earth my husband and I might actually be able to try to escape our little brood for a grown-ups only vacation.

One piece of sage advice the Stork Fund offers in that post on how to Be a Better, Happy, Healthier Parent is to prepare for your getaway with a legal document called a Power of Attorney. That's a pretty generic term as there are many types of powers of attorney that serve many varying purposes. Different states have different laws and names for different legal documents so what it was called in your last state of residence or what your friends or family members in other states call it may not be the same as here in Massachusetts.

In fact, if your estate planning legal documents are from another state or are more than a couple years old, you should have them reviewed by an attorney who regularly practices in the complex field of "estate planning" (a "family lawyer" generally means one who practices in the areas of divorce, child custody, and support) in the state where you currently reside to ensure that they are current and adequate to accomplish your goals, your way, for you and your family.

Please be cautioned as well that the simple form documents readily available for very low fees online are likely not sufficient to do this. When you hire an attorney for your family's legal documents, you should not be hiring a glorified form-filler. Rather you should be consulting and engaging with someone trained to spot nuances and raise issues, advise you on unique areas of concern to you, and guide you in the process of making the best, most informed choices possible for yourself and your family.

The value with an attorney is in that highly personalized counseling and advice, ideally combined with the benefit of a lasting professional relationship for ongoing advice regarding your family's legal needs and cannot fairly be compared to an even exchange for online form documents you complete without any counseling or advice yourself. Akin to selecting a long term primary care physician, desk-side manner matters in your choice of an estate planning attorney too - if it's to be a good, ongoing relationship, it has to be comfortable both ways.

And because most attorneys, unlike impersonal websites, are not open for business 24/7/365, you should not wait until just before you're packing to leave for your vacation to call! Take at least as much time considering and planning for the what ifs as you do selecting a vacation destination, planning your trip, and packing for it. The time to locate the right attorney for your family and call is now. If you are a parent of minor children with no, incomplete, outdated, or totally generic estate planning documents in place, there is probably no more important item for your to do list.

So Massachusetts parents looking for that brief escape to make the heart grow even fonder, be aware that there are a few different types of powers or appointments you need to fully protect your children in the event of an emergency. I like to think about it in practical terms and likelihood of needing and using these legal documents. Personally, I just did so I am speaking from recent, visceral, motherly, practical experience here.

First we have to plan for the immediate, practical aftermath of any type of emergency which makes it impossible for us as parents to pick up our children from camp, school, daycare, etc. or/and return home to care for them. Simple understandings and agreements amongst friends and neighbors, even close family nearby, might not be enough depending on the circumstances. There is a better, legal way to ensure your children will not be stranded or left in the care, even for a very short time, of strangers.

Next we need to plan for the longer term. In the too-awful-to-even-contemplate for more than a minute event that we should die on our way to or coming back from vacation (or the supermarket or work or date night or a business trip or....) and before our children are grown, it is up to us to plan not only for who would care for them daily, but also who would manage whatever financial resources (life insurance etc.) we may be leaving them.

Our unique family and financial circumstances combined with our priorities (as a team of parents if we're planning with our spouses or partners) are what help determine which type of plan to include which specific legal documents will best suit our needs. And to be clear, when combined this is what makes each estate plan a "snowflake" - we don't fit exactly into cookie cutters ourselves and our estate plans shouldn't either (to mix metaphors here!).

Now if you'll excuse me please, I'm going back to my calendar to see about that kiddie-free getaway with my husband....

My Disability Plans, Tested

2011-07-07T10:56:00.000-04:00

Last Friday my husband, our 6 year old daughter, and I went to Boston for what was to have been a fairly routine 12 week ultrasound. We expected to see a healthy baby, then go out to celebrate with lunch in town. Instead, we were shocked to learn the baby had died. There was no longer a heartbeat like I'd seen at the last ultrasound a couple weeks earlier when everything looked good.

The doctor explained that it there had been some horrible genetic accident that occurred at conception. The baby never had a chance and I required emergency surgery for my own health. My husband and I shifted into planning mode to coordinate logistics of who could come care for our three young children ages almost 2 to 6 while he took me in for surgery. My best friend, who is more like a sister, whom my children know as "Auntie", and who has clear legal authority to care for them in an emergency was on her way in a heartbeat.

Call it an occupational hazard, but part of my preparation that night was reviewing the DGVE law Firm Disability Plan with my lawyer-husband, reminding him how to access my work accounts and where everything is backed up, reminding him to coordinate with my Client Liaison and Paralegal, Astrid, and the rest of our DGVE law team if need be.

I also reminded my husband and my Legal Assistant, Elizabeth, where our own estate plan is physically located. As I always explain to my clients, it's important that the people we entrust to step into our shoes and manage our affairs and make critical choices for us in the event of an emergency in which we may be incapacitated or after our deaths know where and how to access the documents that provide them that legal authority.

After a sleepless night we arrived at Mass. General Hospital the next morning. The nurse (who was wonderful!) asked if I had a health care proxy. My husband handed her my emergency medical wallet card and she was able to instantly access my most recent health care proxy, HIPAA authorization, living will, and medical condition/allergy information.

My husband and I had reviewed my specific medical concerns and wishes the night before and on the drive in to the hospital. In the event I was unable to make my own medical decisions, I was confident he would express my wishes and advocate for me. This is precisely why I always advise my clients to allow for these difficult thoughts and conversations; we never know when they may become relevant and necessary.

It was a little worse than either they expected or perhaps than they wanted us to anticipate. Physically, I'm recovering well from all of it. Emotionally, I know this will be a long road. I am filled beyond words with gratitude for and fortified by the outpouring of love, empathy, and support we've been receiving from our friends and family.

I'm also comforted knowing I had undergone the unpleasant process of contemplating my own possible incapacity and death and made arrangements for myself and my family. I've found my workload tends to slow down in July and August each year as most of my clients would prefer to be out enjoying summer with their families. I understand! Trust me, I'd so much rather be out on the beach with my husband and our kids soaking up every last drop of summer, and I will be again very soon! But before you head back out to the playground or the beach again or take off for the Cape and islands this weekend, please make sure that you have done all you possibly can to prepare and legally protect yourself and your family. It will be one less thing for you to worry about if anything unexpected ever happens to you too.

If you're the parent or parent-to-be of young children here in the Boston area and you would like help legally protecting yourself and your family, call my office now at 781-740-0848 and talk with Astrid as your first step. I'll look forward to meeting you and providing you some truly priceless peace of mind. Call before August 1st and mention this post and we'll even make it easier by taking $250 off your flat fee. Don't delay another day; it's not worth the risk.

Wishing you and your family a very happy, healthy, fun-filled summer!
Sincerely,
Danielle

Even the Best-Laid Plans

2011-06-27T13:23:00.000-04:00

The following is a guest blog post written by friend of DGVE law, Hollee Schwartz Temple, Esq., an attorney and the co-author of Good Enough Is the New Perfect: Finding Happiness and Success in Modern Motherhood (Harlequin Nonfiction, Spring 2011). Hollee interviewed me for a piece in the American Bar Association Journal that appeared last Spring as well as for research for her new book in which I make a brief appearance or two.

No one wants to think about life’s horrible what-ifs – much less devote an entire book chapter to it – but that’s exactly what I did in my new book, Good Enough Is the New Perfect: Finding Happiness and Success in Modern Motherhood (Harlequin Nonfiction, Spring 2011).

In the book, I share what happened when my 36-year-old husband, John, endured a health crisis that none of us could have expected. Our best-laid plans were obliterated by bad luck.

John got the first inkling that something was going wrong with his heart on a flight from North Carolina. Right before he was supposed to board the plane, he got into a heated cell phone discussion with a work colleague, and then his vision got blurry. The way he described it, the frame got smaller and smaller until he was sure he was going to pass out.

It scared him enough to see a doctor, but given his otherwise healthy history and age, no one expected the worst to happen. They gave him some drugs, told him to try to manage his stress, and sent him on his way.

But the signs persisted. Right before my older son’s fourth birthday party, he was mowing the lawn when his teeth started to hurt and he curled into a ball on the lawn. He said his heart felt like it was racing, but I assured him he was fine. (The doctors had diagnosed atrial fibrillation and said that while it was annoying, it was not life threatening.)

The doctors were wrong. A few months later when he was racing around on a racquetball court with our sons, I peered through the glass doors to see him reaching out at me … and then he collapsed, his lips turning blue.

The rest was a nightmarish blur … three hospitals, two lifeflights, numerous surgeries. I’ll spare you the details, but tell you something that comforted me in the darkest hours: I had planned for this.

I had taken the time to create a set of estate planning documents before our first son was born; we had both been approved for hefty life insurance policies.

I thought about those papers a lot during John’s horrible hospital visits. If the worst happens, I would think, at least I don’t have to worry about rushing back to work. If the worst happens, the kids and I will be okay.

Happily for us, the doctors at the Cleveland Clinic were able to get John’s heart under control. He got stronger (eventually running a marathon), and when I look at him shoveling mulch in the yard or running the bases with our boys, it’s hard to remember that the nightmare was real.

It’s not pleasant to think about the worst, but I’m so glad we did.

Good Enough Is the New Perfect: Finding Happiness and Success in Modern Motherhood is available at bookstores nationwide or on Amazon at http://amzn.to/newperfect .

Hollee and her co-author, Becky Beaupre Gillespie, blog about parenting and work/life balance at http://TheNewPerfect.com.

Read This Before You Head Off On Vacation!

2011-06-07T13:12:00.001-04:00

The following is shared with permission by my friend and colleague, Rania Combs, Esq., a Texas estate planning attorney who serves clients in Texas through her completely virtual law practice based in North Carolina. It's a brave new world! Here are some thoughts and helpful, practical tips she shared in her recent e-newsletter about preparing to leave on vacation with her husband, without their three minor children:

Preparing for Aruba!
A few of weeks ago, my husband called with some exciting news. He earned an all-expense paid trip at work for himself and a guest to Aruba! We leave the middle of June for five days. I can’t wait!

Despite my excitement, my mommy brain has gone into overdrive as the trip approaches. As I’ve mentioned before, I get a bit anxious travelling away from my children, especially when both my husband and I are traveling together.

Yes, I know that the odds of being involved in a car accident are astronomically larger than being involved in a plane crash, but I still get nervous. And with Osama Bin Laden now dead, my anxieties are heightened because there are a few mean people in the world who are really mad at us.

So I’m relieved that my husband and I will be taking separate flights. I will fly out of Houston after dropping my kids off at my mom’s house, and my husband will leave from the east coast. We also will be talking separate flights back. I’ll be flying back to Houston for a two week visit, and he will be travelling to North Carolina.

With flight plans out of the way, I took some other steps to ensure that my kids will be protected my absence. If you plan to leave your children in the custody of a friend and family member this summer, doing the following things may give you some peace of mind too.

Appointment of Guardian in Case of Death or Incapacity

I have previously appointed a guardian for my children in the case of my incapacity or death, but the original of the document is stored in my fireproof safe in my home, along with my other estate planning documents.

The guardian I selected knows where it is located, but she also lives in another city and the logistics accessing it in case of an emergency would be challenging. So I made a copy of the appointment to give her, along with a reminder of where the original is located. That way, she’ll at least have a copy in case of an emergency until she can get to the original.

Designation of Health Care Agent

It’s unpleasant to consider that any of my children will require medical care while I am away, but the chance does exist. So, I prepared a Designation of Health Care Agent giving my mom, and alternatively my sister, permission to make any and all health care decisions related to the welfare of my children at all times while the kids are in their care and custody.

If you will be leaving your children with a caregiver for a period of time, Designation of a Health Care Agent for them will ensure that the caregiver has the authority to seek medical care for them if the need arises.

Document Listing Pertinent Information

You know your children’s doctors, dentist, orthodontist, and any medical regimen they are on, but a caregiver may not. So it’s important to provide your caregiver this information, along with pertinent insurance information, so it is accessible if needed. Include things such as:

The name of your health insurance provider and member identification number
The name and phone number of your child’s physician
The name and number of your child’s dentist and/or orthodontist
Your name and address and a phone number where you can be reached
Any medication your child may be taking regularly, along with instructions on when the medications must be taken and the dosage.

In case of an emergency, your caregiver will have all this information in one place and will be relieved of the stress of having to find it.

And then go on your trip, relax and enjoy a much needed break!

Frequently Heard Statements About Your Wills & Trusts

2011-05-24T13:40:00.000-04:00

All I have to do is respond to a question about what type of law I practice and I am generally met with one of the reply statements that follow. If I had a dollar for each time I've heard one of these statements, I would close up shop here at DGVE law for a month each summer and take my family on holiday to the beach in the south of Spain. Someday. Meanwhile, I listen to these comments over and over and usually have to politely bite my tongue as they're friends and neighbors and lawyer-colleagues and my children's friends' parents who say them in passing. Here are a few of my favorites and what I wish I could politely say:

"We did our Wills when we had our first baby. We're all set!"
That's wonderful! How old is that baby now? If the answer is anything less than five years old, chances are good you're not quite as "all set" as you would like to believe you are. What is your attorney's name? When was the last time you heard from him/her? Does your family know where your plan is and what to do in the event of a medical emergency or after your death?

Do you have your boiler or fireplace cleaned and inspected every few years? The price you'll likely pay for a an estate plan check-up to ensure that your plan actually does what you want it to when the time comes will be very reasonable. If there are missing pieces, you can fill them in now, while you still can. If it's great just the way it is, you can rest assured and tuck it away again for a few years unless anything changes. You can use the closest holiday or birthday to the date you signed your estate planning documents into effect as the anniversary on which to take them out, dust them off, and give them a quick review.

"My [husband's brother's former roommate's cousin - this always reminds me of that scene in Spaceballs, but you can just choose any combination like this and insert it here] did our Wills for us."
That's great! Oh, he primarily does personal injury and criminal defense work? Really? You might want to have an estate planning lawyer take a look at that for you! There is a very big, qualitative difference between an attorney who has access to legal forms into which he can plug your basic information and one who actually understands nuances to the process to ask you the right questions, give you enough information to make a fully informed decision, and then custom fit the right plan for you and your family based on your unique set of needs and goals.

I have a checklist I use to evaluate the strength and condition of existing estate plans. It's nice when I can tell a prospective client, you're in pretty good shape here and show them where to fill in any missing pieces or how to tighten up loose ends. It's not as lovely when I have to be the bearer of bad news that a plan is really not going to hold up as intended and needs a total overhaul.

"I/my spouse work[s/ed] for one of the big law firms downtown, so they did our Wills for us and they're all fancy with trusts and everything so I'm sure we're all set!"

Fabulous! When was that? Is it time for a review? Do you understand your "fancy" plan and how it all works? Does it do what you want it to do? Are all your bases really covered? Are your trusts funded? With what? Why? Have you acquired new assets, purchased additional life insurance, or moved or refinanced in the past few years? Did you also leave behind some kind of record of your intangible assets, the bits and pieces of you that are most important and will be most cherished byyour surviving loved ones? It's time to dust off your plan and if you have any questions, ask your lawyer to explain it until you feel comfortable and are sure it's what you really wanted.

"We don't have anything and no one would fight about anything so we don't need to."
Most families get at least a little bit "emotional" when it comes to major life events like weddings, births, and deaths. And sometimes in all those excited emotional states, even otherwise totally rational, well-intentioned, loving people can make poor choices and relationships can be upset. In the event of a tragedy, like the premature death of two young parents in an accident, you can multiply that emotion. It's so much better to provide for eventualities than leave it to grieving surviving loved ones to decide amongst themselves!

"I talked with my sister when I had my baby and she said she would be honored to take care of my baby if something ever happened to me." or the related "My sister is my child's godmother and I know she'd raise my child as her own."
That's fantastic! Now, assuming the other parent of that baby agrees, there's nothing left to do but turn that loving conversation or nomination of godparent into the appropriate legal documentation of your your choice of guardian for your child. If you are no longer in a relationship with the child's other parent this can be a bit more complicated but it's still worth doing. Ask your lawyer how.

For more information about how to find the right lawyer for you, download my list of 20 questions to ask before you hire a lawyer, available here: http://www.dgvelaw.com/e-courses.html

3 Major Guidelines for Making Sure That Your Plan Works

2011-05-10T01:43:00.000-04:00

The following is a post by friend of DGVE law, Candice N. Aiston, an Estate Planning Attorney for families in the Portland, Oregon area. She helps loving parents to prepare their families for a lifetime of security, prosperity, and guidance. If you would like to receive her free report, "The 9 Common Planning Mistakes Parents Make," please visit http://candiceaistonlaw.com/.

Just about every day, I read a post on one of my estate planning listserves, in which an attorney is searching for the will of a deceased person. I want to make sure that no one ever has to search for your will and that your plan will always work for your family, so here are 3 major guidelines for making sure that your estate plan is going to work:

1) Think realistically about the price. Attorneys typically charge $200-400 per hour. We meet for 2 hours with our clients before we even get started drafting their plan. How could I charge $500? By filling your name in the blanks and hitting print. By asking, "What do you want me to do?" and then saying, "OK, sure!" when you say, "I just need a simple will." But that would not be lawyering. Lawyering would be getting the information that I need from you, then showing you what things would look like for you and your family if you died or were incapacitated with your current plan in place. Lawyering would be pointing out any areas of concern and offering alternative planning solutions to avoid any unpleasant scenarios. After you have that professional advice, you can have it your way.

2) Find out what will most likely happen if you are incapacitated and when you die. Find out what the process looks like, and if there are any scenarios that you would rather avoid. Through proper planning, you can avoid just about any unpleasant scenario, such as probate (a court process dealing with the deceased's assets) and conservatorship proceedings (a court process dealing with an incapacitated person's assets). The key is in starting from a place of getting an education about your situation, then making a decision from there.

3) Make sure you work with an attorney who has a plan for ongoing communication and follow-up with you and your family throughout the years. This is the main key to not having your name pop up on the listserve after you die. My office accomplishes this in three ways. First, we do not charge fees for ongoing communication. Clients can always call us and know they are not going to get a surprise bill in the mail. Second, we do a free plan review for our clients every three years. They always know what their family situation looks like. Last, we communicate with everyone involved in the client's plan, so they know how to contact us if something happens to our client.

If you follow those three guidelines, you will never end up on my listserve. Your family will be very, very grateful for that.

You might be thinking to yourself, "That's great, but I don't have $1500-2000 or $3000-6000. All I've got is $500." To that, I say ask your attorney to set up a payment plan for you. You can't afford not to do necessary planning. Estate Planning is something that every person needs to do, especially if you have kids, and especially if you own any assets at all (and yes, you own your house even if you have a mortgage on it).

I fear that people do not know what they are getting when they buy a $500 estate plan. What they are getting is papers - papers that may not work, may not be found, or may not be helpful if the client is incapacitated (which is far likelier to happen than a premature death). And these papers are supposed to protect your family. They are supposed to ensure that your family has easy access to what they need to take care of themselves. They are supposed to ensure that your family does not have to spends thousands of dollars and several months in court trying to get everything sorted out. What you stand to lose if your plan does not work is the security of your family.

Going for Mother of the Year

2011-05-06T12:12:00.000-04:00

I didn't give up on this blog, it's just been extra busy here at DGVE law lately! There are lots of exciting improvements in progress on many fronts. I've added three new fabulous team members, two "behind the scenes" and one clients will likely meet soon enough as she's here in person, live, really! Construction is beginning shortly to finally add a separate office entrance so people are spared having to come through our kitchen! (OK - so I'm spared having to try to clean up the disaster area after my three little kids before my clients arrive!) Anyway, it's the midst of all this, and with all the children thankfully sleeping through most nights, I've had a little less time for blogging lately. But I'll be back!

In the meantime, on the suggestion of one reader and by request of another, I'll share with you the e-newsletter I sent out this morning in honor of Mothers' Day.

Why I'm Not Going to Win Any Mother of the Year Award

Well, honestly, the list would be so long and who has time for all that right now? I'll just give you the crowning jewel moment of the week and we'll leave it at that, OK? So Wednesday I was in back to back meetings (with some of you even, nice seeing you!). Then I made a stop at the Registry of Deeds and decided to run an errand while I was out instead of rushing back to the office. Big mistake.

As it turns out, yesterday was a half day for school or "Wacky Wednesday" as they call them. My oldest came home from school on the bus and Mother of the Year that I am not, I was not here. So the school starts calling me, but as the number was unknown and it was coming through as a work rather than personal call, I decided to let it go to voicemail.

Fortunately, the school got a hold of Bari, DGVE law's Funding Coordinator, who then called me directly. I raced to the school feeling horrible and my daughter confirmed it for me by telling me how sad she'd been when I wasn't home and how it was "the worst. day. ever!"

Good Enough Is the New Perfect

I'm a "good enough" type mom. Well now I am. Oh sure, I too started out wanting and damn near killing myself while trying to be perfect. I read every single parenting book out there. I researched all the baby "gear" to death. I literally wrote a treatise (a solid 10 page document) on how to properly care for my baby, (you know, the one I neglected to receive home off the school bus the other day) which I am fairly certain not one of my children's caregivers actually read the whole way through.

I made all the baby food and mini kiddie cupcakes for preschool class parties from organic foods from scratch. We learned baby sign language. We went to classes and learned to sing songs that I could not even pretend to like, but believe me I tried! Then at some point, maybe about 3.5 years into my experience as a mother, I had a great awakening.

I realized that in trying to be perfect I was often (not always, but enough that I noticed) making myself perfectly miserable. It was around then that one of my nearest and dearest friends only half-jokingly told me that her goal as a mother was to do her best for her children so that someday she would not be their primary topic of conversation in therapy. She was my good-enough-mom inspiration.

There are days when I am the best mom in the whole wide world! I know this because my children occasionally tell me so and I trust and value their totally unbiased, worldly opinions. There are other days, this past Wednesday for example, when I'd just like a total do-over. I am confident I could be a fantastic mother, wife, friend, housekeeper, cook, lawyer, business manager, friend and still take time to take really good care of myself by eating healthfully, getting plenty of sleep, and exercising regularly. And I am and I do! Just never all on the same day, which I've come to accept is good enough.

And hopefully my daughter won't be in therapy someday talking about the time her mother forgot her half day and wasn't home to welcome her off the school bus. I'm sure I'll carry that mothering faux pas with me to the grave, along with all the others. For now though I'm finding tremendous solace in the book "Good Enough Is the New Perfect: Finding Happiness and Success in Modern Motherhood" by Hollee Schwartz Temple and Becky Beaupre Gillespie.

About a year ago, Hollee, interviewed me about working in a dedicated home office. Later, she interviewed me again about my path to creating DGVE law. I am proud to have been interviewed and featured briefly in this groundbreaking book. I think Becky and Hollee have done a brave thing peeling back the curtains, examining, and naming the problem that until now had no name for Gen-X professional-mamas.

This is definitely a must-read book for those of us raised on Marlo Thomas' Free to Be You & Me, who internalized the "you can do anything you want to do" motto of the day without the cautionary realism of "just not all perfectly, all at once." If you want to get even deeper inside my head, pay particular attention to the parts about Becky as we seem to have been separated at birth. Pick up a copy for the mama(s) in your life who have / had / are taking a break from / took a break from / have scaled back on their professional careers while raising their young children.

Wishing you and the amazing mothers in your life a very healthy, happy, blissed-out-mommy-moment-filled kind of weekend and a restful, restorative, gratitude-brimming Mothers' Day,

Danielle

Legally Protect & Financially Provide for Your Child With Special Needs

2011-04-01T14:58:00.000-04:00

Estate planning is the process by which parents can legally protect their children by naming guardians to care for them both in the immediate aftermath of an accident or tragedy and permanently. By creating a comprehensive estate plan you can document and provide guidance for the guardians and caregivers of your children. You can help ensure that the financial resources you intend to leave for your child will be used as you would.

April is Autism Awareness Month.

If you have a child with autism and/or any other special needs due to physical and/or mental health conditions, it's even more critically important that you make sure you've done all you can to ensure your child will be cared for by the people of your choosing, in the manner that's best for your child, and that he or she have the benefit of all that could be available.

It’s important, for example, to be careful about the way you leave financial resources for your child with special needs so that you don’t inadvertently jeopardize any public assistance or government benefits to which your child might otherwise be entitled to help cover the costs of his or her ongoing healthcare, education, living expenses, and general support. The way to do this is to establish a Supplemental Needs Trust (also referred to as a Special Needs Trust ) for your child to receive the money you give or leave him or her so that money works specifically to supplement existing and potential future government benefits for your child.

With a Supplemental Needs Trust you can also help insulate your child’s resources from potential claims by creditors for debts and from lawsuits. If your child has special needs that are not as readily visible on the surface, as with mental health disorders like dyslexia, sequencing disorder, sensory processing disorder, bipolar disorder, or schizophrenia, you can also create a special kind of trust to help continue the care for and responsibly provide financially for your child.

You can also choose whom you want to be in charge of managing your child’s money, whom you want to love, nurture, and care for your child on a daily basis, and whom you want to advocate for and manage the appropriate care for your child. You can provide welcome background information and guidance to each of them to help ensure continuity of quality care for your child with special needs as well as minimize the stress on your other child or children and extended members of your family.

Choosing guardians for your children can be an incredibly difficult and even painful process. When one of your children has special needs, it’s even harder. No one is a greater advocate for your child than you and no one understands him or her better than you do. As parents we “go to bat” for our children relentlessly and would do absolutely anything for them we possibly could. The trick is to help educate others as best as we can to understand and learn how they can step up to the plate for us if we’re ever unable to continue advocating for our children ourselves. A good estate planning attorney should have a process to compassionately (not clinically) help you through that decision-making process.

Sign up here for an email with a link to download 20 Questions to Ask Before You Hire a Lawyer to Prepare Your Family's Estate Plan to help you find the right lawyer for you and your family.

And if you’re in Massachusetts and would like to talk privately about your family’s needs and learn what you can do to best protect and provide for your children in case anything ever happens to you, just email or call my office to get started today.

How to Find the Right Lawyer for You and Your State

2011-03-28T22:44:00.001-04:00

Did you ever think about "doing your Wills" then just stop in the face of the seemingly daunting task of finding the right lawyer for the job? Did you ever wonder if you really needed it or if you could even afford it? Anna, another crazy-busy attorney-mama of two little ones (and my sister in the late-night-working world) who blogs at Motherly Law, asked me to write a guest post for her readers in the form of a practical, how-to guide to finding an estate planning attorney. I was happy to oblige and hope you'll find it useful too.

As she says, Anna and I occasionally, respectfully, disagree. For examples: I wouldn't say I have a "specialty" so much as a particular focus born out of empathy. I welcome matters in the areas of adoption, estate planning, and residential real estate, and most of my clients do tend to be other busy parents of young children to whom I can easily relate. I wouldn't call what I do "family law" either for fear of fielding even more requests for assistance with divorce, child custody, child support, and the like. I have some wonderful colleagues to whom I am happy to refer those matters. My definition of estate planning may also be much broader than Anna's, which seems a bit more focused on what happens after we're dead as the starting point. That may account, in part, for our difference of opinion about Do-It-Yourself (DIY) estate planning with basic forms, though I have on a few very limited occasions recommended it as an alternative.

Anna notes, in a previous post she wrote about her own process with naming guardians for her totally adorable children, that state laws vary. For example, a "living will" means something different here in Massachusetts than how Anna defined it based apparently on Minnesota law. And as Anna also notes, some DIY attempts may not be recognized at all. Massachusetts requires: (1) an actual writing, (2) signed by the person creating the Will (the "Testator"), (3) two witnesses who are not named in the plan, and (4) a Notary Public to create a valid Will.

Different states also have different tax laws that apply to decedents' estates (i.e. whatever people have left in the way of assets when they die). Here in Massachusetts, where the cost of living is relatively high and (despite the recent downturn in the housing market) home values are correspondingly higher than in other parts of the country, we also have a much lower threshold for filing an estate tax return at the state level than at the federal level. Accordingly, more regular middle and upper middle class people (not just the very wealthy), are likely to have potentially taxable estates. And unlike the very wealthy for whom losing a chunk of change to estate taxes and probate court fees and expenses may not be such a big hit, it may be for others who perhaps don't feel quite so wealthy but whose estates would, nonetheless, potentially owe estate taxes.

So although we may consider our circumstances to be pretty straightforward and uncomplicated requiring nothing more than a simple Will, with a little more information we may be surprised to discover it's not that simple at all...or maybe it really is. I know I never learned how to draft my own basic, estate planning, legal documents while in high school in Massachusetts, did you? (That, however, didn't stop me from trying! Seriously, but that's a story for another day...) The point is, a lawyer should be able to help you understand your circumstances (both inter-personally amongst your family and financially), listen to your goals and concerns, and apply all of those facts to the laws of your state and then advise you about your best course of action. As I said, one size does not fit all and that is precisely my concern with the less than fully-informed, uncounseled, DIY approach.

When Should I Update My Will ?

2011-03-01T10:00:00.001-05:00

There are, of course, some general rules about how often to dust off your Wills, Trusts, and other estate planning documents to make sure they still work. Much, however, depends upon your personal circumstances.

If any of the following apply, call your estate planning lawyer now:

You’re moving in with your significant other, combining finances, and getting ready to buy and/or furnish a new home together. There are many reasons moving in together is not a step to be taken lightly! Make sure you do it the smart way by thinking ahead and getting professional legal advice to avoid unnecessary conflict, drama, and unintended consequences.

You’re getting married. Don’t assume that will automatically ensure you’re both covered legally or financially. If you’re a same sex couple, for now you still face additional hurdles to accessing the same desired outcomes as opposite sex couples under federal law. Find out what you need to do to ensure that your spouse benefits as you really intend.

You’re getting divorced. Make sure your divorce decree and your estate planning documents are not inconsistent. You probably no longer want your ex-spouse making decisions for you in the event of your incapacity, during your final moments of life, of following your death and you may not want him or her to benefit financially either.

You’re getting remarried and blending your families, or your ex is. If you are remarrying or your ex-spouse is, you may want to ensure that what you leave to your children remains only for your children rather than allowing it to pass to the new spouse or his or her children. Don’t assume that’s what will automatically happen as without proper planning it very well may not. To provide for your spouse’s child who is not biologically your own, you may wish to consider adopting and you should make those wishes explicit in your estate plan.

You’re having a baby. There are so many things to think about and plan when you’re expecting a child. While it is far more fun to choose names and plan nursery decor, one of your most important plans for your baby is to ensure that you’ve done everything possible to provide for your baby if something should ever happen to you.

You want to adopt a baby or you’re adopting a child. However you become a parent, it’s your responsibility to ensure you’ve done everything legally and practically possible to provide for your child if something should ever happen to you. You need to make emergency plans for while the child is a minor but also think ahead to what sort of safety net and legacy you want to provide when that child becomes an adult. Remember that you do not have to wait until the adoption is finalized to make provisions for a child you are adopting under your estate plan. If you choose to wait until the long process if completed, that child has no legal right to inherit from you. If you have a great, ongoing relationship with your estate planning lawyer it will be easy to make changes once the adoption is finalized.

You’re having another baby or adopting another child. Don’t assume that your next child is covered by a previous estate plan. You need to make sure that all of your estate planning documents include all of your children which may be a very simple yet extremely critical edit to a couple of documents. This is also the time to revisit your choice of legally named guardians for your children. The people who agreed to raise your children to adulthood if anything ever happened to you may have experienced changes to their families and the difference between your then one or two and now two or three or more children may be more than your named guardians would be able or willing to handle now.

You’re buying (more) life insurance. If you have young children you support you should have a life insurance policy. This is not an area in which you want to play the “what are the odds” game. The value of your policy affects your estate plan, so be sure to revisit that and see whether you may need to do some additional tax planning to protect your life insurance investment. Beware of unintended consequences of using life insurance policies as investment vehicles. If you’re considering buying a new life insurance policy, talk with your estate planning attorney first to make sure you do it the right way.

You’re buying a home or vacation home. Buying real estate is usually the largest purchase we ever make and the way you “take title to” or own that asset is critically important in terms of your estate plan; make sure your real estate attorney and estate planning attorney guide you through the options in light of your big picture.

You’re selling a home or vacation home. The sale of one of your largest assets undoubtedly affects the shape of your estate plan and may require changes to that plan to avoid unintended consequences.

You’re starting a business. As any small business owner especially knows, it’s a very thin line between the personal and the professional. Your business plan, business succession plan, and personal estate plan go heart in hand in hand. There is so much more to owning your own business than just a great idea and so much more to leaving something truly useful and enduring for your loved ones than just making it through the busy days with income at the end. Start, as they say, with the end in mind and tie it all together for the greatest likelihood of lasting success.

You’re selling or leaving behind a business. The sale of your business will affect your assets and may affect the disposition of your estate. Be sure to discuss it with your estate planning attorney and your family so you leave a blessing rather than a curse.

Your family recently experienced the loss of a loved one. If a member of your immediate family dies you will need to update your estate plan and possibly administer his or hers. There are time-sensitive matters so be sure to let your lawyer know right away so she can help make it easier for you and your family during a very difficult time.

You recently inherited money from your parents or other family member. Most inheritances are completely dissipated in short order. If you inherit from a loved one, talk with your estate planning lawyer right away to make sure what you receive is protected so it’s available for you and then your loved ones in the best possible ways.

You are expecting or recently received a settlement or court judgment award from a lawsuit. Talk with your estate planning lawyer about the best way to protect any money you receive through a court settlement or judgment to ensure it stays to help you as intended.

You won the lottery! This can be a blessing, instead of a curse, but you have to do some work to make it possible. You will need to strategize with your estate planning lawyer and financial advisor right away.

Moms' Secrets to a Truly Relaxing Vacation

2011-02-09T22:22:00.000-05:00

Based on individual and collective personal experience, the following are some moms' secrets to a truly relaxing vacation (and yes I realize these are internally contradictory, such is the nature of the thing!). Please add your secrets in the comments below.

recognize the distinctions between: family visits, family trips, and vacations
leave your children behind
bring your children and, depending on their ages, also bring: baby gates!, outlet covers, white noise machines, "loveys," extra clothes and supplies, iPhone apps for kids, headphones and a portable DVD player, a babysitter or relatives who will babysit
vacation with another family with children the same ages
turn off and tune out from cell phones, smart phones, email, etc.
leave a careful set of instructions so you don't have to be available to answer questions or expend precious energy worrying about what you may have forgotten to say
sign your Will and trust and legally name guardians for your children well before you start worrying about what to pack or what instructions to leave behind
don't over-schedule yourselves
do schedule a massage!

Wishing you safe travels and happy memories! Bula Bula!

How Do I Choose A Guardian for My Children?

2011-01-27T06:00:00.033-05:00

The following is a collaborative post with my colleague out in Colorado, Martha J. Hartney, Esq., which also appears on her blog here.

Making a decision about who would raise your children if something happened to you can be puzzling and even dramatic—especially for a married couple trying to agree on potential guardians. Rest assured, you know your children better than anyone and you’re uniquely qualified to make the decision in a way no one else is—not even a judge. So before you throw your arms up with an “I have no idea who to pick!” here’s a method to come to a decision that you can live with. REMEMBER: guardian nominations can be changed and should be changed over time as your children grow and their needs change. Don’t be afraid to make a decision and then change it later. That’s the natural progression of childhood in operation.

Does this kid looks like he needs a special kind of guardian? Oh yeah.

Here’s the method I recommend. Each parent should go through this exercise individually as well as together. It’s vital to keep in mind that each of you will have different answers and none of them are wrong.

1. List 5 people you would allow to raise your kids. Go with your gut on this. Don’t think too much about it, just list the top five. You can add to it if someone springs to mind as you consider the factors we’ll list shortly. Don’t restrict yourself to immediate family members. Many times, the perfect guardian can be found among close friends and sometimes in the case of older children, families that your child knows well. Some parents have named co-workers and neighbors. The decision should not be based on relationship entirely but on who will do the best job at that point in your children’s lives.

2. Consider your values. What do you want your children to receive growing up with their guardians? Can your potential guardians raise your children in the way you would have raised them? Reflect on your potential guardians’:

Education and Life Experience. These tend to inform one’s own personal values and impact one’s financial security. What would the potential guardian teach your children and what types of experiences would she or he provide and/or encourage?

Religious or Spiritual Philosophies. Does the potential guardian understand yours and your spouse or partner’s religious or spiritual philosophies? Does she or he respect differences of opinion and practices? Do the potential guardians’ friends, neighbors, and extended family share that respect? Is it important to you that your children be raised in a particular faith or exposed to particular ethnic or religious traditions?

3. Consider practical matters. Raising kids is, if nothing else, a colossal give-fest. Raising someone else’s kids realistically is asking someone to commit to one of the most difficult jobs on the planet. When choosing your guardians ask yourself, and if puzzled, ask them about:

Parenting Philosophies. Include preferences regarding matters such as diet, sleeping, style of discipline, television viewing.

Relationship With Your Children. Evaluate the existence, quality, and nature of the potential guardian’s relationship with your children as well as the quantity of time she or he has spent with children. How do your children feel about her or him?

Location. Consider the impact and effects of moving on your children in the aftermath of losing both of their parents and how often your children would be able to see and visit with the friends and family with whom they have spent the most time and are most comfortable and familiar. Older children tend to be more rooted in their community. Will moving them disrupt them more than necessary? Have you considered local guardians—even if they are not related?

Age. Look at the ages of the potential guardian and her or his own family and how it relates to your children’s current approximate ages. Older siblings who have raised their children may not welcome the opportunity to do it again. Try not to take that as a personal affront. Be realistic about what it would feel like to finish raising your own children only to have to raise another family. If you’re determined to name your own parents, try to remember exactly what you were like as a teenager and see if that’s what you really want for your parents’ golden years.

Physical and Mental Health. Is the potential guardian and her or his present partner or spouse physically and mentally healthy? Do you have any concerns about the potential guardians abilities to care for your children? Do your children have any special needs that would require additional training, talent, resources, or inclination from your guardians?

Lifestyle and Circumstance. Is it important to you that the potential guardians be able to be “at home” at least part time with your minor children rather than, depending on their ages at the time, in full time care? Does the potential guardian have a lifestyle that would easily support the addition of children or would that be a drastic change and if so, is it a change the guardian would really want for her or his own life?

Your Children’s Preferences. To whom do your children exhibit a natural affinity and with whom (your family or friends) do they feel most comfortable? Depending on your children’s ages and maturity levels and without causing them undue anxiety, you may want to tactfully solicit their input. In Massachusetts, children ages 14 and older have a say, so be sure to ask them.

Avoid Making Financial Resources a Priority in Your Choice. Many parents choose a guardian based on their ability to support their kids financially. This is not a good criterion. Rather, providing for our children even in our absence is our responsibility so that our guardians need not worry about how they’re going to pay for the children they agree to raise. Ask me about ways to provide for your kids in your absence and remove this factor on your list.

4. Rank your values and your children’s practical needs in order of importance. Don’t worry if you and your child’s other parent do not match. That would be asking a lot of two individuals. Instead, decide to honor the differences between you that make your unique as well as those that bind you.

5. Compare Your Two Sets of Rankings. Decide if any names are “out” and if any new ones have sprung to mind.

6. Remain Calm and Make a Decision:

Rank potential guardians according to how closely they line up with your values and the practical considerations of raising your kids in your absence.
Compare your lists
Place common names in the order you’ve ranked them
Discuss names that do not appear on each other’s lists and why
Reconsider each other’s positions and adjust your list if necessary
Decide on three to four names, in order of preference

I have developed tested and proven techniques to help counsel my clients through what can sometimes be a very difficult and painful process. If what's holding you back from naming any guardians for your children is an inability to agree with your partner or spouse, delay no longer. Sit down with me and I will help walk you gently through it to arrive at the best possible compromise to help you both achieve your ultimate goal - protecting the child or children you both love!

7. Ask Your Potential Guardians If They Will Serve. By all means, do ask in advance if you possible or shortly thereafter. You can make a change if necessary. I often counsel clients to ask if the potential guardian would be willing to be listed as a potential among several nominees. That way, should you ever change your mind, you needn’t worry too much about hurt feelings. Be aware also, that nominees are volunteers and they can decline the honor if their life situation does not allow them to accept it.

8. Document Your Ranking in the Form of a Nomination of Guardianship. The legal process varies by state, so please be sure to talk with a licensed attorney in your jurisdiction to ensure that you do this in a way that will be legally binding and work as you intend it to work. If you are a Massachusetts resident you can call my office at: (781) 740-0848 and ask to speak with my Client Liaison, Astrid A. Muhammad, about scheduling a Peace of Mind Planning Session with me to ensure that you understand what steps you need to take to legally and financially protect your children. And in the meantime, you can sign up for my e-course on the 10 Mistakes Parents Make That Could Leave Their Children Legally and Financially Vulnerable.

Take some time now to go through this exercise and commit to a decision. You can—and should—change your nomination from time to time as your children change. Your kids’ guardian nomination is a foundational aspect to their well-being and there should always be one in place. The odds that the nomination will be called into service are low, but well worth the time to make sure your kids are cared for by the people YOU choose. No judge in the world can possibly make the decision with all the information you have and they can’t make the decision nearly as well as you can.

Does Having Another Baby Mean You Have To Change Your Will?

2011-01-25T10:30:00.000-05:00

The following was written by "my Canadian friend" (as I've come to jokingly call her) and professional colleague, Michele Allinotte of Allinotte Law Office in Cornwall, Ontario, Canada. And because my three children have had me hopping busy with all the recent snow days (read: no school or daycare!), I asked and Michele kindly agreed to allow me to repost it here for you.

I've noticed recently that more and more families are having three children (or more!). Some friends and clients have added to their families in the last couple of years and some will be having a new family member arrive in the next few months. Thinking of all the changes they will need to make led me to consider whether or not they need to change their Wills.
When I meet with clients to do their Wills and Powers of Attorney, I always talk about when they should review or make changes to their Wills. There are some events in life that should make you ask if the plan you made still "works". Some of these events are marriage and divorce, death of a close family member (or a person named as a beneficiary or executor), and, also, adding a new family member.

While you may not have to change your Will as your family grows, you certainly should think about it and perhaps review it with your family (and your lawyer) after getting the happy news.
Some things that you would need to think about when reviewing your plan are:

Did your Will name your existing children or did it talk about your "issue"? If your existing children were named, it is possible that your Will may not include another child. If you aren't sure if your new child would be included in your Will, you should see your lawyer to make sure.

Hopefully your Will named guardians who would take care of your children in the event that both parents passed away. Are your guardians going to be willing and able to care for another child? You need to check in with your guardians with each new child to ensure they are still up to the task of caring for your growing brood. You also should speak to your guardians if they add to their family to make sure that they would still be able to handle the additional responsibilities that being guardians to your children would bring.

Now is also a good time to review your life insurance and savings needs. As your family grows, so will your expenses. You should review your financial picture to make sure your (larger) family will be taken care of if something happens to you and your spouse.

So, before you have to worry about late night feedings and diaper changes again, review all of these things and set up an appointment with your lawyer or financial advisor if necessary so that you can be ready for your new arrival.

Why You Should Care About the New MA Homestead Law

2011-01-20T06:00:00.001-05:00

Wearing my estate planning and real estate thinking caps, I dug deep into the new Massachusetts Homestead protection Act entitled "An Act Relative to the Estate of Homestead" that Governor Patrick signed into place on December 16, 2010. This new law is set to take place in March (per the usual 90 day grace period to enable us all to adjust accordingly).

Why should you care? Well, for estate planning purposes (because this is a blog about Massachusetts Wills, Trusts, and Estates after all), there are 3 reasons mainly:

1. This law protects the value of your family home that you usually live in automatically up to $125,000 or up to $500,000 if you file, if, for instances, you rack up an outrageous amount of credit card debt or get in an accident and a court orders you to pay someone damages as a result. But let's not get crazy here; you can't avoid a mortgage, child support, alimony, back taxes, or a prior lien on the home.

2. Under Section 5(a)(3) of the new law, married couples now both execute the document and file together. This may seem like one small step but it's actually a giant leap forward for womankind here in Massachusetts as we climb out from under the Doctrine of Coverture (or the seriously arcane notion that women are their husbands' property). But don't worry if only one of you filed for homestead protection previously, because your homestead is "grandfathered in" and continues in full force and effect.

3. This law also clarifies some of the confusion that previously existed around homestead protection for homes held in trusts. Under Section 1, an "owner" can be "the holder of a beneficial interest in a trust" and under Section 5(a)(4) only the trustee of a trust can file for a home owned by that trust. That means that in serving as trustee of the Revocable Living Trust that is the cornerstone of your family's estate plan, you can file for homestead protection for your family's home. Section 10((b) also seems to put to bed any concerns about inadvertently terminating an existing homestead by transferring the property from individual or married owners into trust. That would make the recording of a new homestead unnecessary where, for example, a married couple transfers property from themselves as tenants by the entirety to themselves as trustees of their living trusts.

Hmmm, something tells me you're probably not nearly as excited about these developments as I am. Any questions? Bueller? Bueller? If you recently bought property here in Massachusetts talk with your estate planning attorney to review how you took title when you bought your new home and learn how to make sure that asset, likely your largest, is protected for your family.

Life Is What Happens To You While You're Busy...

2011-01-18T06:00:00.001-05:00

John Lennon said it best.

Here we are just trying to survive the daily grind while we enjoy every other minute of it and dream of the future (all at the same time). How many of you are reading this on the laptop on your kitchen counter with children crawling underfoot or running around you? How many of you are sunk into a comfy chair reading it on your iPhone? How many of you are up in the middle of the night nursing a baby back to sleep while you read this?

And if we're not there, we're on the floor under the highchair cleaning up the remains of one of the three meals and two snacks our toddlers enjoyed as a total sensory experience. We're trying to do some dishes and answer the phone while listening to our preschoolers tell us about the amazing everyday things they observed earlier that day. We're imagining our elementary school-aged children as teenagers and dreaming of the day we can ever sleep in on a weekend again (note to parents of older children: please do not burst my bubble here! I have to believe sleep will come again some day!).

We get so busy with all the immediate details of our lives, so caught up in planning our children's birthday parties, coordinating playdates, signing our kids up for after school activities and lessons and carting them all over the place to do so. We pour our everything into our families and our homes, but life is what happens while we're busy making other plans. If anything ever happens to us and we're left incapacitated or dead, without a good plan in place to protect our families, everything else will just stop and likely fall apart.

My friend and colleague, Portland, Oregon Estate-Planning Attorney-Mama Candice Aiston, recently wrote another excellent blog post about how estate planning is an investment in our families' futures. She talks about what we're doing trying to survive, thrive, and prepare for our families' futures. I invite you to read it on her blog here.

Welcome Changes to Massachusetts Probate Process Delayed

2011-01-15T15:27:00.000-05:00

Well it seems some of the welcome changes to the probate process we have been anticipating here in Massachusetts will just have to wait a bit longer. Last week Governor Patrick signed a bill into law that delays implementation of the outstanding pieces of the new Uniform Probate Code until next January, 2012.

Notably for my readers, we will have to wait another year before there is any way to legally nominate permanent guardians for our children outside of a Will. So, no time like the present! If you are a parent of children under the legal age of 18 and you have yet to legally appoint whom you would like to care for, nurture, guide, and raise them to adulthood should you ever be unable to do so yourself, it's time to get your affairs in order.

If you're a Massachusetts resident who needs a little help to keep that as a New Year's Resolution, just sign up here and we'll provide you gentle accountability and motivation to take this hugely important step. And if you work with us to do it, we promise, we'll make it as painless as possible; you might even find you enjoy some of it!