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Kevin D Quinn
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Kevin Quinn’s Answers

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  • We amended the Family Trust with a legal document drafted by a Trust attorney (3 years ago), witnessed & everything proper.

    The original Trust (12 years ago) had on the last page the name of the original Trust Attorney and a statement that amendments to the Trust "shall" be sent to him certified mail, sign receipt. No time limit mentioned nor stated on when to send th...

    Kevin’s Answer

    I agree with Attorney Rosenberg that the ‘safe’ route is to send a copy of the revision to the drafting attorney. If this is the only restriction on amendments, there is nothing the drafting attorney can do if he/she objects to the amendment. This is presuming the amendment is valid as drafted and executed, (trust maker competent, no undue influence, etc.)

    If the purpose of this notice is to in any way benefit the drafting attorney, it may not be enforceable or it may be a breach of ethics to have made such a restriction on amendments. None of that is important, however, if you just send a copy of the amendment. I suggest it be sent return receipt required.

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  • I just sold my house which was in my trust B. Do I need an attorney to update my trust or can I just mark Trust B house sold .

    Should I mark date and any details?

    Kevin’s Answer

    Sale of an asset would not require a change in the trust document. You should in fact assure that your trust asset record indicates the date of sale, the amount, where the funds were deposited (presumably in an account within Trust B), and who purchased the property.

    You should discuss with your accountant whether you or the trust will have realized capital gain and whether you or the trust should make an estimated tax payment.

    In that "Trust B" could refer to a a revocable or irrevocable trust and you have not disclosed the beneficiary of this trust, I cannot comment further on the disposition of the funds.

    While you may not need the services of an attorney, you should seek advice from an accountant regarding the funds.

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  • I have my house in irrevocable trust. I am the trustee of the trust with my children as beneficiaries. I want to give property

    to my grandchild. Can I do that as trustee or should I add it to my will?

    Kevin’s Answer

    • Selected as best answer

    I agree with Attorney Golde’s response for a variety of reasons. You should probably seek counsel with an estate planning or elder law attorney; however, it may help you and your attorney if you think through a few points.

    1. What was the intent when the trust was established? If you created this trust, why did you do it? If it was to transfer the property to your children or grandchildren so as to exempt this property from a nursing home spend-down, you should definitely have the trust examined as to the efficacy of that plan. This is an area where the rules are constantly changing and your trust may no longer accomplish that goal.

    2. Why do you want the property to go to you grandchild versus your children? This is a fairly major change in your plan. If you have important reasons for adjusting your goals, it may be an appropriate action. However, I do not believe it should be approached lightly.

    3. If the property is transferred to your grandchild, how do you want the grandchild to own the property? There are advantages of holding the property in trust. There can also be disadvantages. Under some circumstances having your grandchild hold the property in trust could protect her from the claims of creditors, divorces, and remove the asset from your grandchild’s estate for estate tax purposes. None of these may be important issues, but they are potential advantages you should consider when deciding whether you want to transfer the property to the grandchild outright as opposed to leaving it in trust for the grandchild. As Attorney Golde mentioned, it is possible, particularly if your children agree, that you could simply have your grandchild become the beneficiary instead of them through a non judicial reformation. Finally even if the document does not allow you to transfer the property directly to your grandchild, it is possible that your grandchild can use the real estate without being an owner. This again may require some family agreement and cooperation; however, it may achieve your goals without requiring a distribution of an asset from a protected trust to the unprotected environment of the grandchild’s personal ownership, or the complexity of a non judicial reformation. Please consider seeking competent advice from an elder care or estate planning attorney as these issues are clearly complex.

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  • My dad wants to gift $13,000 to my daughter, but she is 2 yrs. old. How can I accept this on her behalf?

    Since she is only 2, I can't open a bank account in her name. I know I could put the money into an education fund, but I don't want to do that. What are my options? Can I keep the money in my account? will I be legally liable if I were to use it f...

    Kevin’s Answer

    Your father intends this money to be a gift for your daughter. If you put the money in your account, it is subject to the claims of creditors, (car accident, business failure, nursing home spend down, divorce, etc.). I am certain you would feel horrible if this asset which you consider to be your daughters was taken by a creditor. A joint account is exposed to both parties creditors, don't go there.

    A UGTMA account is a good idea, but has several draw backs. If you are custodian (likely) the assets of this account are included in your estate for estate tax purposes. As soon as your daughter turns 21 the account is her's and you will have no ability to say how it is used. Because you specifically asked for alternatives to a 529 education account I will not address that option.

    Massachusetts just adopted the Massachusetts Uniform Trust Code, which generally makes it very easy to create a trust. A trust need not be complicated or expensive to be effective. To obtain asset protection the trust should be irrevocable.

    If your father is in a position to make a $13,000 gift I wonder if he is intending to gift other assets in the future or leave her assets at death? What would be ideal is for your father to establish a trust, name you as trustee, put this gift and any future gifts for her in this trust. You could then protect these assets from your creditors, and avoid both estate and possibly income taxes on the investments made on her behalf. Because this trust old last for your dughter's entire lifetime, you could retain control until she is mature enough to assume this responibility. the trust assets would be protected from her creditors and protected from her spouse should she suffer a future divorce.

    Speaking to a parent about money is rearely easy, but If you keep the focus on the advantages to his grandchild your father may be receptive to this conversation, and should be impressed with your thoughtfulness.

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  • I have a revocable trust, how important is it to have my real estate, car registrations and titles in the name of my trust for

    my heirs to avoid probate?

    Kevin’s Answer

    The general answer to your question is, "it is essential to have your home, car, and other assets titled in the name of your trust to avoid probate on those assets that would otherwise be subject to probate".

    However, a complete answer to your question is not that simple. The first issue is to examine is whether avoiding probate is truly you only goal. If you have other goals, such as protecting assets from creditors, planning for a long term illness, and estate tax planning, a revocable trust may or may not be the only or best tool to accomplish your goals.

    I am generally a huge proponent of using revocable living trust as the foundation estate planning document, but even I would be certain to tell you that a revocable trust is not for everyone, and certainly will not meet 100% of every client's goals. If you have multiple goals, you may want to sit with an estate planning attorney to review those goals and see how or if your revocable trust meets your needs,

    If avoiding probate is truly your only goal, the next question is "what do you own". The only assets that are subject to probate are those that are owned in our individual name, and do not have a pay on death or beneficiary designation. Assets held in joint tenancy with right of survivorship are not probated. Assets such as retirement accounts, savings bonds and those with Transfer on Death (TOD) designations are not probated.

    While joint tenancy, beneficiary designations and TOD accounts can avoid probate, these forms of ownership come with their own problems. Holding property in joint tenancy with a spouse, or naming a spouse as the beneficiary of retirement and other accounts may eventually lead to significantly higher estate taxes. These forms of ownership do not protect assets from the claims of creditors while you are living, or from the creditors, estate taxes or divorcing spouses of your beneficiaries after your death.

    Unique to Connecticut, regardless of whether an asset is subject to probate, and regardless of whether estate taxes are due, Connecticut estates pay a fee to the probate court. This fee is calculated based on the value of your assets at death.

    Once again it is about your goals and what you own. A qualified estate planning attorney may help transfer the appropriate assets into your trust and, based on your priorities, help you establish a comprehensive plan to accomplish as many of your goals as possible.

    I hope this helps.

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  • Possible negligence lawsuit against me ,is it too late to form LLC ?

    I solely own a 2 family investment property. An existing tenant may be looking to sue me for a recent negligence/tort incident case but has not done so yet. The incident is not protected by my home insurance. If I have a lawyer immediately for...

    Kevin’s Answer

    • Selected as best answer

    If you make any transfers at this point, either of the rental property or your "personal" savings you may be making a "fraudulent transfer". A fraudulent transfer can be unwound or essentially ignored by a court seeking to enforce a judgment against you. A fraudulent transfer has nothing to do with "fraud" in the traditional scene. A fraudulent transfer is a transfer made with the intent of preventing a judgement creditor (in this case possibly your tenant), from reaching your assets. It is a objective/subjective test. Did a transfer occur? That is purely objective test. Was the transfer made with the intent to prevent a creditor from reaching your assets? That one is more subjective, but if the transfer occurs after you become aware that a claim has or is likely to be made against you the court can presume that you intended to frustrate that person's judgement against you.

    Not all is lost (1) your tenant may not win his/her suit; (2) you may be able to legitimately transfer some assets, and avoid a fraudulent transfer by use of a strategy called a "carve out". In a carve out essentially, you make an amount that your tenant might reasonably claim available to that person only. In this way you are not attempting to avoid that particular claim, and accordingly are not making fraudulent transfers. (3) As attorney Deland pointed out, at a minimum take this event as an opportunity to examine your entire risk profile. Even if you loose to this creditor, perhaps you can avoid a loss to a future car accident or slip and fall, employee suit, etc.

    I also agree that if you determine that you do want to protect some assets that a domestic asset protection trust created in an appropriate jurisdiction such as Nevada or Wyoming, or international trust created in Nevis or the Cook Isands (sometimes called an "offshore" trust) will generally provide more protection than an LLC, particularly a single member LLC. You can include the carve out instructions in the trust, making certain assets available to this claimant, but to no others.

    As attorney Hammarlund suggested you really need to contact an attorney who is experienced with asset protection laws, asset protection trusts, and the details fraudulent transfers before taking ANY action. This is not an intuitive area of the law and you need to assure you are well advised.

    Kevin

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  • When moving property to a trust, does a deed have to be drawn transferring the property to the trust .

    When moving property to a trust, does a deed have to be drawn tranferring the property to the trust before it can be sold to a 3rd party?

    Kevin’s Answer

    Yes.

    Trustees hold legal title to the property of the trust for the benefit of the trust beneficiaries. This means that the trustees might not personally benefit from the trust but any buyer, insurer or financial institution dealing with the trust concerning the trust assets must deal (have signatures from) the trustee(s). Generally a deed transferring property to a trust names the serving trustees as owners in their capacity as trustee. "I transfer to George Smith, trustee of the Smith FamilyTrust, dated xxxx". The deed is recorded in the appropriate registry so that there is no confusion as to title. In Massachusetts, a trustee must also file a Trustee's Certification that the trust document grants the trustee authority to hold and sell real property, or the trust itself must be entered into the real estate record.

    When it comes time to sell, the trustee(s) sign the deed on behalf of the trust, again in their capacity as trustee; "George Smith, trustee of the Smith Family Trust, dated xxxx, for consideration of Xxxx transfers to Jane Jones..." or similar language. The point here is that title must first reside in the trust, through it's trustees, then the trust, again through its trustees, can pass title to a third party.

    If you are a trustee, or are buying property from trust, you should discuss obtaining title insurance with your real estate attorney.

    Hope this helps.

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  • If a surviving spouse dies and an adult child is named beneficiary to mass state retirement plan what will happen

    my mom died in Massachusetts and had a surviving spouse that died 10 months after her she named me as 100% beneficiary on her mass state retirement plan and now i'd like to know that since her spouse has died will i receive the benefits? or what c...

    Kevin’s Answer

    First, I am sorry that you have lost your mother and must deal with this at the holiday season.

    The answer to your question may be very simple or very complex. The answer will depend on what system your mother worked for and what type of plan she had. Under some state plans a surviving spouse has an automatic right to the benefits. Others allow the employee bypass the spouse and name someone else beneficiary. If your mother was married for less than a year at the time of her death this may also be a factor. Some benefits stop at the employee's death. Since you believe you were named as beneficiary, I will presume this is a plan with a continuing benefit.

    If your mother's husband did have rights, these will generally now be the property of his estate. Since he survived your mother, if he did have rights, they will now extend to his heirs or to his estate.

    Suggestion: there is nothing to be suspicious or overly cautious about here. You can't "mess anything up" by asking questions. Call the Human Resources Department of the agency where your mother worked. Identify yourself as daughter, and named beneficiary. Ask for claim forms or how you request your benefits. THIS IS IMPORTANT: if you are the beneficiary, ask about your options. Can you take your benefits in as an inherited IRA? Must you/can you take a lump sum (one big check). The income tax ramifications of the answers will be significant. You may want speak to your accountant or another tax advisor. A lump sum means all the tax is due at once. If you can and do take as an inherited IRA, you will pay tax only on what you withdraw, as you withdraw the funds. A minimum amount MUST be withdrawn from an inherited IRA annually, so again, you may want to seek additional tax advice before making your selection of how you will receive your benefits.

    If it turns out your mother's husband did have rights simply because of their marital status, you will need to ask a lot more questions. Did her husband have children, a will, had he started the claim process, has an estate been opened for him? It will get complicated fast, and you may not have any rights at all.

    1st call the agency where your mom worked. That part should be black and white, they will either have you as the beneficiary, or explain what if any rights her husband (and by extension now his estate may have to her retirement account).

    Good luck, hope this helps.

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  • What are the specific steps needed to disclaim inheritance in Connecticut.

    I live in Arizona. My mother lives in CT. My sister is the executor of my mother's estate (or will become the executor). For reasons that are beyond the scope of this message, I need to disclaim any possible inheritance. How do I do this?

    Kevin’s Answer

    Both of the previous answers are accurate. I would add one or two points. You can not disclaim an asset after you have excersised any form of "dominion or control" over the asset. This would include accepting ownership, exercising options about its disposition (changing investment attributes, going to cash, etc.) or any other act of acceptance. Neither can a person disclaiming control who then gets the asset. Generally, the treats a discaimer as if the person disclaimimg died 1st. Your mother's will, or the laws of intestacy, and the beneficiary designation on IRAs, savings binds, etc., will control who receives in your place. You should understand what the result is before you disclaim, it may not be what you expect. You should also thoroughly understand whether your goals will be achieved by disclaiming.

    You should seek advice before taking this action.

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  • This is my second marriage and my husbands also. We both have 3 ea. children. Everything we own is in our name. We have no will.

    Could his kids take anything from me????

    Kevin’s Answer

    If you own everything jointly (in both names), should you predecease your husband, he will own everything. At his death his Will will determine where everything goes, (presumably to his kids, not yours). If he has no kids, his property will go to his heirs by intestacy (generally follow the blood line). Once again you kids likely won't receive anything.

    Many "blended families" establish trusts. At the first death the trust provides for the surviving spouse. Many times the surviving spouse can have broad use and control, of the deceased spouse's assets, but he the survivor does not own them. Because the 1st spouse's assets remain in the trust, she can assure what is left will provide for her children.

    If your concern regards loosing your assets to your husband's children while you are alive, how you title things is again, critical. Many joint accounts allow either joint owner to withdraw 100% of the account, without the other joint owner's permission. If your step children had a power of attorney over their father's assets it is possible (although perhaps unlikely) that the person holding the power of attorney could completely drain a joint account.

    I generally recommend that any couple in a "blended family" family, regardless of the size of the estate, seek advice from an attorney who specializes in estate planning.

    One last thing, be honest with your attorney about your concerns.

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