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John L Roberts

John Roberts’s Answers

65 total


  • Is a lawyer liable to maintain your last will in safe storage at his office?

    What does the lawyer who stores your last will required to do upon your death?

    John’s Answer

    MGL Ch 191, Section 13. A person having custody of a will, other than a register of probate, shall, within thirty days after notice of the death of the testator, deliver such will into the probate court having jurisdiction of the probate thereof, or to the executors named in the will, who shall themselves deliver it into such court within said time; and if a person neglects without reasonable cause so to deliver a will, after being duly cited for that purpose by such court, he may be committed to jail by warrant of the court until he delivers it as above provided, and shall be liable to a person who is aggrieved for the damage sustained by him by reason of such neglect.

    John L. Roberts, Estate Planning, Probate, Disability Law
    Longmeadow, Massachusetts

    http://estateplansplus.com

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  • My father died and left me the house. My name is on the deed. What taxes would I have to pay upon selling the house?

    The house is owned in full and is worth approximately $300,000. My name is on the deed, but the house was bequeathed to me and my two siblings. Would I have to pay capital gains and inheritance tax? The house is in Maryland and I live in Massachu...

    John’s Answer

    You should talk to an attorney in Maryland. Your statements that 1) your name is on the deed to the house, and 2) that the house was bequeathed to you, need to be sorted out.

    Did your father convey the property to you and your siblings, and retain a life estate in the property? There is a debate over how life estate transfers will be treated by the IRS. Many tax attorneys believed that people who inherited by way of a life estate would have to pay a capital gains tax. But one prominent estate planning attorney believes the tax laws that took effect in 2010 can be interpreted to include remainder interests. You can read about this issue, and find links to the new tax law at:

    http://estateplansplus.com/html/tax_2010.html#life_estate

    The new tax laws also have a carry over for the decedent's principal residence. Information on that is at:

    http://estateplansplus.com/html/real_estate_income_tax.html

    Since your family will need a Maryland attorney to handle the real estate closing, select an attorney there who can give you an opinion on what the IRS and Maryland taxing authorities will expect from you when the transaction is reported to them by the buyer's attorney. You can also locate competent attorneys at neala.org and nelf.org

    John L. Roberts - Estate Planning, Elder Law, Probate and Disability Law
    Longmeadow, Massachusetts

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  • CD with my father as trustee and me as beneficiary count as his asset or mine?

    Will it have to be spent on long term nursing care before he can apply for Mass Health?

    John’s Answer

    Getting back to Massachusetts law ---- As Attorney Golden first explained, the revocable trust arrangement your father has with the bank would be counted as your father's asset by Medicaid (unless you actually contributed some of the cash to the CD, and you can show proof that you contributed that amount).

    The Medicaid rules in Massachusetts do have some exceptions for other circumstances, such as when two or more people jointly own an account at a stock brokerage. With that arrangement, Medicaid would count only a proportional share of value as belonging to the Medicaid applicant or nursing home resident (as long as the funds in the account had not been transferred within five years of the Medicaid application).

    There are also regulations that allow eligibility if the person who needs Medicaid can't liquidate certain types of assets because that are made "inaccessible" by other joint owners who won't sell.

    If Medicaid is your concern, you can find links and information at:

    http://www.masshealthhelp.com/html/medicaid.html

    John L. Roberts - Elder Law, Estate Planning, Probate, Disability Law
    Longmeadow, Massachusetts

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  • What will happen next?

    I am being investigated for using my mothers money ( I am her POA), what will happen if they chose to say I did not have permission? My mother is now in a nursing home and all her money goes to them and I do not owe anything to them, but they are ...

    John’s Answer

    You did not mention which agency of government is doing the investigation. If you can prove that you have reimbursed your mother for the funds you used, you may be able to satisfy the agency that is investigating you. However, if you are serving as Power of Attorney and you use your principal's money for your own purposes, you have acted improperly. You should consult a New Hampshire attorney for help in managing your problem.

    I am licensed only in Massachusetts and Connecticut. However, I am aware that New Hampshire has prosecuted at least one family member who allegedly used money that belonged to a nursing home resident. Information on the case is at:

    http://doj.nh.gov/publications/nreleases/021406iers.html

    General information about power of attorney is at:

    http://www.estateplansplus.com/pdf/fact-sheet-poa-proxy.pdf

    John L. Roberts - Elder Law, Estate Planning, Probate and Disability Law
    Longmeadow, Massachusetts

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  • I am 64 yrs old and my job was eliminated on 4/30/2010. I am looking for a job however can I apply for social security also?

    I have 22 weeks of unemployment, I asked Social Security and they replied that unemployment is not considered as an earned wage. I asked Georgia Unemployment and got different answers, one said we do not look at Social Security and the other per...

    John’s Answer

    • Selected as best answer

    Another factor to consider is the lower monthly amount that Social Security will pay to workers who retire "early." "Normal retirement age" is no longer 65. To determine normal retirement age, go to:

    http://www.ssa.gov/OACT/ProgData/nra.html

    Understanding that disability is not a problem for you, many people who can no longer work due to disability decide to retire "early" without realizing they can protect their full retirement amount by proving disability. Information on this is at:

    http://disabilitydecision.com/html/retirement.html

    John L. Roberts - Elder Law, Estate Planning, Probate and Disability Law
    Longmeadow, Massachusetts

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  • Estate tax/capital gains 2010: If I inherit a house in 2010, will I have to pay capital gains tax when it is sold?

    House is in a life estate Remainderman is deceased and estate probated and taxes paid on vested ownership House will go to Remainderman beneficiaries upon death of life tenant and avoid probate.

    John’s Answer

    Whether you get a step up in basis depends on some additional facts not mentioned in your question, and how your tax accountant interprets the current confusion over the federal estate tax laws.

    Did the deceased remainderman live in the house? Under the new tax laws that took effect January 1, 2010, an the administrator of an estate will also be able to use the Principal Residence Exclusion, to shelter any gain on the sale of a decedent's home. This will open up new opportunities for planning, and more flexibility for planning transactions with real estate brokers and real estate professionals. An amendment to §121(d) extends the principal residence exclusion to a home sold by:
    (A) the estate of a decedent
    (B) any individual who acquired such property from the decedent (within the meaning of section 1022), and
    (C) a trust which, immediately before the death of the decedent, was a qualified revocable trust. The exclusion will be "determined by taking into account the ownership and use by the decedent."

    As for whether the life estate passes a step up in basis to the remainder owners: the conventional wisdom this year has assumed that there would no longer be a step up in basis for a remainder owner, because the section of the Internal Revenue Code that provided the basis step up has been repealed.

    However, a prominent Massachusetts estate planning attorney has made a convincing argument that a new section of the code DOES include basis step up for life estates, since the lifetime owner has exclusive possession of the entire property, and the remainder persons do not have a possessory interest in the premises until the lifetime owners die. You can find a link to his blog, and read about the differing interpretations at:

    http://estateplansplus.com/html/tax_2010.html#life_estate

    You can also find links to the relevant code sections in that article.
    John L. Roberts - Elder Law, Estate Planning, Probate and Disability Law
    Longmeadow, Massachusetts

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  • How can i override power of attorney?

    my uncle just gave my grandmother power of attorney over my great grandmother. my great grandmother has been diagnosted with dementia and has been in a nursing home for over a year because she had a bad fall and was deemed unable to live by hersel...

    John’s Answer

    You have described a very sad and difficult case. A guardian should be appointed to protect the health and safety of the person you are concerned about. If a court of competent jurisdication appoints a guardian, the guardianship has authority that overrides a power of attorney. Consult an elder law attorney in your state who can explain the procedures and standards for guardianship. A local attorney can give you an opinion on whether good cause can be shown to override the authority of the attorney-in-fact, and appoint the guardian.

    John L. Roberts - Elder Law, Estate Planning, Probate and Disability Law
    Longmeadow, Massachusetts

    If this answer is helpful, please consider entering a thumbs up. Thank you.

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  • Grantor vs.family trust?

    if a living parent might sell their home,to try and protect assets re. medicaid which of the above trusts is more effective without the trustees incurring taxes?

    John’s Answer

    If your parent lives in New York State, you would have to consult an elder law attorney who is licensed in New York.

    Ask the attorney whether the law in your parent's state allows for an Income Only Trust that protect's your parent's principal residence exclusion under IRS regulations, but is still viewed as an irrevocable transfer by the state Medicaid agency.

    For general information about this concept, you can read an article: Protecting Your Home and Other Assets from Long Term Care Costs with an Income Only Irrevocable Trust at
    http://estateplansplus.com/html/trusts_income_only.html

    If this answer is helpful, please consider awarding a "thumbs up." Thank you.

    -John L. Roberts - Elder Law, Estate Planning, Probate and Disability Law (for Massachusetts and Connecticut only)
    Longmeadow, Massachusetts

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  • Who can I talk with regarding SSI?

    I was just informed that because I am not paying my brother enough money, out of the SSI that I get every month, that I may lose that and the medicade I am on. When I first applied for SSI, I didn't recall anyone telling me that I had to spend...

    John’s Answer

    Your living arrangement is a factor used to determine how much SSI you can get. This means your SSI benefits may vary depending on where you live:
    in your own place such as a house, apartment, or mobile home; or in someone else's household.

    For links to the Social Security publications that explain SSI, go to:

    http://disabilitydecision.com/html/benefits.html#ssi

    John L. Roberts - Elder Law, Estate Planning, Probate and Disability Law
    Longmeadow, Massachusetts

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  • Is $40,000 a reasonable charge for the executor of a $2,000,000 estate?

    Only a single home was involved, no out of state holdings

    John’s Answer

    To follow up on Attorney Barreira's excellent comparative example of reasonable vs. unreasonable attorney fees for probate of an estate, you could check the article that has additional case examples. The article was written by an attorney at the state agency that regulates attorneys. It is posted at:

    http://www.mass.gov/obcbbo/fee_ethics.htm

    The article explains how attorney fees should be figured to include the time and labor required, the fee customarily charged, the nature and length of the professional relationship, the reputation and ability of the lawyer, and whether the fee is fixed or contingent. A fee may also take into account result obtained, but the lawyer may not unilaterally charge a bonus or premium on top of time charges for results obtained.

    Attorneys are regulated by the state, and we are bound by ethical rules that include how much we charge for our services.

    John L. Roberts - Elder Law, Estate Planning, Probate, Disability Law
    Longmeadow, Massachusetts

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