Tag Archives: #estateplanning #trustsandestates #probate #elderlaw

Beware!! New IRS Rule on Trust Taxes

New IRS ruling on Irrevocable Trusts

by Andrea Rutherford, Esq.

The IRS issued a revenue ruling on Irrevocable Trusts last month – attracting some media attention by the Kiplinger Personal Finance and others.

If you have a trust drafted by Dalton & Finegold, YOU ARE OKAY!  We anticipated this and our trusts are in compliance with the new IRS ruling.  This ruling affects only Irrevocable Trusts – if you have a Bypass Trust or a Revocable Trust that becomes irrevocable when you are deceased, you aren’t affected by this.

Irrevocable Trusts are a terrific way to protect your home from long-term care expenses, such as nursing homes.  But they must be carefully drafted.  There are two ways to draft this kind of trust.

  • If the trust is drafted one way, the house will be exempt from estate tax when the owners die. But the heirs will “carry over” the original owners’ purchase price for capital gains tax. If the original owners – usually parents – bought the house in 1980, then the capital gains tax when the kids sell is calculated back to the 1980 price.
  • If the trust is drafted another way, estate tax will be due on the house. But when the heirs sell the house, the capital gains tax is calculated from the date the previous owner died (so-called “stepped up” basis).

When we draft Irrevocable Trusts, we help our clients to choose one or the other – the estate tax or the higher capital gains tax.  Usually, it’s a simple math calculation to decide which is best.

The new IRS ruling confirms that you have to choose – you can’t claim BOTH the estate tax exemption and the favorable capital gains treatment (and a warning to creative attorneys who are trying to draft trusts that accomplish both!).

If you are worried about your Trust, our attorneys would be happy to review it for you.  If you don’t have an Estate Plan yet, call us to schedule a free consultation.  The first consultation is always free of charge and our Attorneys are ready to assist you!

Maintaining control over lifetime decision-making and your estate

Stay in control of your estate

by Susan Mooney, Esq.

Maintaining control over lifetime decision-making and your estate

As a practicing estate planning and elder law attorney for thirty-five (35) years, the best advice I can give to any client is that if you want to maintain control over your future and want your wishes to prevail regarding your future care during lifetime and your post-death estate distribution, then preplanning for your lifetime needs is critical. Establishing simple legal documents does not have to be elaborate or expensive and can save you and your family significant costs and potentially a lot of anguish and crisis planning later.


Further, you will maintain control over who will act in the roles of your decision-makers in the future, in the event you are unable to act on your own behalf during lifetime. Simple planning can protect you from Court intervention and from others, who may not be your choice of persons to control your future decisions or your estate.


The first step in any estate plan should include documents related to life-time planning and protections, such as a Durable Power of Attorney and Health Care Proxy. These documents insure that during lifetime an individual’s financial and medical needs, intentions and wishes are followed. These documents take care of you during lifetime (while other documents, such as Wills and Trusts relate to division of your belongings and other assets after your death, which is of course important as well, but not as important as taking care of you personally and maintaining control during your lifetime).

The following are suggested planning to be considered in establishing or reviewing an estate plan to meet your individual goals.




  1. DURABLE POWER OF ATTORNEY: A Power of Attorney is a very simple and inexpensive legal document that allows you to designate an individual who is authorized to act in your place during your lifetime, to conduct and participate in financial transactions on your behalf. This person, called your agent or attorney-in-fact, should be able to conduct any financial transaction in your place if you are either unable to do so, or if it is simply not convenient for you to do so, either temporarily or permanently. By executing a Power of Attorney, you avoid the risk of the Court appointing a Conservator to manage your affairs if you were to become unable to do so.


  1. HEALTH CARE PROXY: The Health Care Proxy is the single most important legal document that any individual can have. It is a simple and inexpensive legal document that appoints the person of your choice as your health care agent, to speak on your behalf for medical decision-making ONLY in the event you are not legally competent or conscious to do so. It is important to name agents to avoid a Court appointed Guardianship, which is costly and can take weeks or months when a decision might be needed urgently.


  1. HIPAA RELEASE: Separate and apart and in addition to a Health Care Proxy, a HIPAA release will allow your medical team to release information to those you name on the HIPAA release, whether you are competent or not at the time. Remember the Health Care Proxy will ONLY allow the release of information to your Health Care agent in the event you are not competent or conscious.


  1. WILL: Determine if you need a new Will, or if you need to update or amend a current Will so that your post death wishes will be followed regarding distribution of your estate.


  1. TRUSTS: Determine if a Trust is right for you. A Trust may be advisable if there is a specific need for holding assets in Trust, such as protecting assets for minor children or disabled individuals, or to avoid probate, or for tax planning, or in some cases an Irrevocable Trust for long term care planning.


  1. BENEFICIARY DESIGNATIONS: Review and update all assets that allow you to designate a beneficiary, such as Life Insurance, Annuities, IRAs, 401ks, Retirement plans, etc. Assets with beneficiary designations are NOT controlled by your Will.


  1. REVIEW OWNERSHIP OF BANK AND INVESTMENT ACCOUNTS: Bank accounts and investment accounts generally allow for PAYABLE ON DEATH (POD) or TRANSFER ON DEATH (TOD) designations. This form of ownership is generally advisable, as opposed to adding children or other relative’s names to joint ownership on your accounts. Joint ownership is generally ill advised, since your assets would then be exposed to the risks of other joint owners, such as their accidents, divorces or other financial risks and liabilities.


  1. LONG-TERM CARE PLANNING: Is there any planning advisable or recommended for you in case long-term care is needed or imminent? While pre-planning is advised, in the long-term care category many folks believe that planning must be completed five (5) years prior to the need for long term care.

However that is NOT always the case. Often planning can be beneficial even at the last minute when someone is already in nursing home care.


Remember that every individual’s situation is unique, whether related to assets, health issues, or family situations. It is important that you receive personal advice related to your specific situation and estate planning needs from qualified professionals.  Nothing contained in this article is intended as legal advice specific to your personal situation. Please consult an estate planning or elder law attorney of your choice to review your personal planning and circumstances.

Our estate planning attorneys will be happy to explain the estate planning process.  The first consultation is always free of charge.

Estate Planning can feel very overwhelming!  Call us to talk about your estate taxes or estate planning in general. The first consultation is always free and our Attorneys are ready to assist you!

Your Will is Safe with Dalton & Finegold!

Don’t hide your Will under a chair cushion like Aretha Franklin!

by Andrea Rutherford, Esq.

Estate Planning made headlines last week…

with Michigan Court upholding Aretha Franklin’s 2014 Will – even though it was handwritten (and barely legible), written on a notepad and hidden under a chair cushion.  The Will differed in several respects from a 2010 version found in a safe.

The worst part of this story is that Aretha’s four kids have spent five years and nearly One Million Dollars fighting over the Will.  And two of her children are reportedly not speaking to each other.

Don’t let this happen to you!

First of all, the outcome of this case would have been worse in Massachusetts or New Hampshire. Here, a Will has to be signed by two witnesses – and they can’t be relatives or beneficiaries. Since neither of Aretha’s Wills were witnessed, she would have been considered intestate, ensuring an even longer and more expensive court fight.

At Dalton & Finegold, all the Wills we draft are witnessed and notarized.

Second, keep your estate planning documents in a safe place. Or, even better, have Dalton & Finegold store your originals. We keep our clients’ documents indefinitely in secure storage. All your heirs have to do is give us a call.

Third, review your estate plan regularly.  The disputed issue in the Aretha Franklin case was a provision requiring two of her sons to earn business degrees before they inherit.  These kinds of clauses are not uncommon. But circumstances change and a provision that makes sense when your kids are young maybe inappropriate when they are older.

Dalton & Finegold attorneys will be happy to review your existing estate plan, prepare a summary and highlight any provisions that might be out of date.

Call us to talk about a new or existing estate plan. The first consultation is always free and our Attorneys are ready to assist you!

Avoid DIY Estate Planning!

Althea Volper, Esq.


by Althea B. Volper, Esq.

Creating your own estate plan online can be tempting as a convenient and cost-saving option.  There are many websites offering cheap (or free) estate planning documents.  Don’t do it!  These websites are no substitute for professional legal advice from a licensed, experienced estate planning attorney.  The risks of cutting corners on your estate plan far outweigh the savings.  There are many pitfalls associated with creating an estate plan yourself online.  For example, your do-it-yourself (DIY) estate plan may:


  1. Fail to meet the legal requirements: Laws regarding Wills and other estate planning documents such as Powers of Attorney, Health Care Proxies and Advanced Directives vary from one state to another.  Using an online template may not ensure that your estate planning documents meet the legal requirements in your jurisdiction.
  2. Contain ambiguity and errors: Websites offering online Wills and other estate planning documents rely on your inputting information to produce documents.  This means that any mistakes or unclear language that you enter becomes part of your legal document—this can lead to confusion, legal disputes, and even court intervention.
  3. Lack customization: DIY estate planning websites often utilize one-size-fits-all templates, which fail to consider your and your family’s unique circumstances.
  4. Lack professional legal advice: When preparing your own estate planning documents using an online interface, there may not even be a human reviewing your plan before it is produced, let alone an experienced legal professional.  Effective estate planning involves complex issues, such as asset protection for beneficiaries, tax implications, and guardianship arrangements.  An estate plan produced without professional legal review may contain errors or omissions that could have long-term consequences for you and your loved ones.
  5. Lack privacy and security: We all know that online platforms can collect, store, or sell your personal information and data, including sensitive financial information and details about your family members.  Entering this information into an unsecured online platform runs the risk of this information falling into the wrong hands.


To avoid these pitfalls, consult our team of experienced estate planning attorneys to set up a complimentary consultation.

Our Estate Planning Attorneys can tailor a Trust to your family’s needs.   The first consultation is always free of charge.

If you have questions about your Estate Planning needs, our Attorneys are ready to assist you!

What on Earth is a Trust?

by Andrea Rutherford, Esq.

Trusts used to be for the richest of the rich. Now it seems like everyone has a Trust. So what is it?  Trust me (!), the term “Trust” even intimidates law students. But the idea is actually quite simple.

Our Estate Planning Attorneys can tailor a Trust to your family’s needs.

History of a Trust

Trusts were invented 500 years ago by English noblemen who had wayward children. When a nobleman (called the GRANTOR in Trust-speak) died, he would leave his property to a trusted friend – often the family lawyer (the TRUSTEE) – instead of leaving it to the wayward children. The Trustee signed a written promise not to use the property for himself. Sure, he was paid a fee. But he had to use the property for the wayward children (known as the BENEFICIARIES).  And the Trustee had to follow RULES left behind by the nobleman. For example, the rules might say “pay for my wayward son to go to knight school (get it? “knight school!), but don’t pay his gambling debts.”

So really, what is a Trust?

So a Trust is a written arrangement among a grantor, a trustee and a beneficiary.  The Trust has legally enforceable rules and it applies to certain property.

Note that a Trust is essentially doing the same thing that a Will would do – leaving the nobleman’s stuff to his wayward children. So a trust is an alternative to a Will.

Over the centuries years, clever lawyers have figured out all sorts of bells and whistles that make Trusts more attractive than Wills.  We know that a Trust can protect assets from your kids’ gambling losses. Your Trust can also protect your assets from your kids’ divorces and lawsuits.  Your Trust can shelter assets from estate taxes and avoid probate. A Trust can include special plans for underage children or disabled adults.  Your Trust can set aside funds for your grandchildren’s college tuition.

And over time, Trusts have become simpler, less restrictive, easier to change and less expensive to create.

Our Estate Planning Attorneys can tailor a Trust to your family’s needs.   The first consultation is always free of charge.

If you have questions about your Estate Planning needs, our Attorneys are ready to assist you!

Medicaid Doesn’t Have to be a Mystery!

Ashley Evirs, Esq.

May is National Elder Law Month

by Ashley Evirs, Esq.

It can be daunting when a loved one requires facility or skilled nursing care. Even more intimidating is the price tag that comes along with it! Since the month of May is designated as National Elder Law month, we are doing our part to educate seniors and their loved ones on Medicaid (here in Massachusetts, called “MassHealth”) eligibility rules and strategies to save assets from government liens and/or reimbursement.

Protect and preserve your legacy through proper long term care planning.

Understanding Medicaid

Medicaid is a federally funded program to assist seniors paying for long-term skilled nursing care, and each state is allowed to put eligibility restrictions in place for the benefit. To make matters more confusing, there are different rules for individuals (single persons, widows and widowers, unmarried cohabitants) and married persons. Working with a general practitioner or an estate planner not well versed in this field could be detrimental and financially harmful for your family as there are various asset and income restrictions (depending on which program you are applying for), a five-year lookback rule and various transfer consequences to be mindful of.

We develop a personalized approach to Long Term Care

Similar to our estate planning approach, we know that long-term care planning is not ‘one size fits all’. We will meet with you to hear your specific concerns, learn about your assets, and help devise a customized plan to protect your assets and spend down your resources.

We have successfully helped families protect and preserve their legacy, all the while maintaining a level of control and use of the assets our clients are comfortable with.

Reach out for a copy of our current MassHealth Eligibility Factsheet and to schedule a meeting with one of our attorneys to learn more about your available long-term care planning options.