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John L Roberts

John Roberts’s Answers

65 total


  • In the state of MA, how long does it take to finalize and close an estate? can i find out if its been filed to close?

    I am trying to find out if the executor and his attorney have started the legal procedure to close an estate. my mother passed in sept of 2008 and they have yet to close the estate and disburse the funds. they have given us no information and i'd ...

    John’s Answer

    You didn't specifically explain your interest in the estate, but the tone of your question does indicate that you are concerned about how the executor has managed the assets and expenses of your mother's estate. Massachusetts law sets timelines for payment of debts, and the executor is responsible to tell the beneficiaries of the estate about all of the estate assets.

    If the executor won't provide you with a copy, you can find an Inventory of estate assets in the probate court file. It was due to be filed 90 days after the Executor's Bond was allowed.

    You didn't mention whether the value of your mother's estate was over $15,000. If it was under this value, the executor could have filed a form of probate that requires less notice to you, and not final accounting. A link to an article on small estate probate is also posted below.

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

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  • Life Estate

    If a person having only a life estate interest in a property gets approved for a home equity line of credit, which they use, when they pass away do the remaindermen have to pay off this line of credit?

    John’s Answer

    Your question is also one of fact: who signed the note, and the mortgage for the loan?

    Lenders run down property ownership records before making loans. A lender is not likely to loan money without securing its interests against all owners.

    You can see who is listed on the mortgage document by checking online with the registry of deeds. If the property is in Springfield, the Hampden County Registry of Deeds will have the recorded mortgage.

    John L. Roberts
    Longmeadow, Massachusetts

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  • Which type of Guardianship ?

    If all I am applying for is the ability to make personal and medical decisions, will I apply for "limited" or "general" guardianship?

    John’s Answer

    As attorney Golden explained, the answer to your question depends on the needs of the person whom you will be serving.

    A Guardian looks out for the best interests of the incapacitated person. If the person needs assistance with only specific decisions, you would want to protect their autonomy and liberty, and ask to have limited guardianship. [Remember the Declaration of Independence: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.]

    With limited Guardianship, the Probate Court Judge could authorize specific tasks and responsibilities for the Guardian. But, in some cases, full Guardianship is required to properly serve the person who needs to have a surrogate decision maker.

    The Probate Court has published a guide, which includes a short discussion of limited Guardianship. A link to the Probate Court Guide is posted below.

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

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  • Help filling out guardianship petition.

    Is there anywhere to get free help in filling out a guardianship petition. I cannot afford a lawyer, yet don't qualify for free services. Will court clerks help?

    John’s Answer

    The Probate Court has published a guide for Guardianship, and I have written an article that discusses some of the responsibilities and duties of guardians. The links are posted below.

    The value of a consultation with an elder law attorney would be well worth considering. Ask whether there are attorneys in your area who offer Limited Assistance representation. This form of service provides you with some guidance from an attorney, at a lower fixed cost.

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

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  • What is the best way to turn a summer home over to my children. Sell it to them for $0 or sell it myself and divide the money.

    My husband and I are elderly and my husband health is failing. I want to be sure my daughters get the summer home.

    John’s Answer

    You mention that your husband has health problems. By consulting an elder law attorney, you can get perspective on your planning options. The elder law attorney will explain the potential need for long term care, and the income and estate tax issues tied to your summer home. Taxation and long term care costs can cause serious problems during times of transition, but good planning can often prevent those problems from overcoming your goal to pass the summer home to your daughters.

    A family vacation home is a legacy that can be treasured by generations to come. I commend you for recognizing the value of this legacy, and taking steps toward preserving it. I often recommend to clients a book that explains the planning process that people have used to provide a structure for managing the vacation home for many years into the future. The book is called: Saving the Family Cottage, and there is a link posted below.

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

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  • Who's financially responsible for someone under guardianship?

    If I'm the guardian of my adult disabled child, yet said child lives with my ex-spouse, who's financially responsible for that child's living expenses, etc., if the child has no other income?

    John’s Answer

    Following up on Attorney Golden's excellent advice, I agree you would be well served by consulting with a family law attorney, and with an elder law attorney who can help you and your ex-spouse coordinate benefits for your disabled child.

    You did not mention whether your child has been disabled since childhood, and this is one of the important factors that an attorney would need to know in determining the resources that are available.

    You can get information on SSI benefits amounts, medical coverage and other benefits for Massachusetts residents at

    http://www.ssa.gov/pubs/11130.html

    An elder law attorney will help you understand the resources available, and help you and your ex spouse provide the best for your child.

    John L. Roberts, Elder Law, Probate, Disability Law
    Longmeadow, Massachusetts

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  • Can the judge appoint

    me as my son's guardian without any paper work, i have petitioned the court to remove his wife as guardian, and appoint me. what other paper work will be required of me,

    John’s Answer

    The Massachusetts Probate Courts have published a short outline of Guardianship and Conservatorship.

    http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/upc/mpc190-general-information.pdf

    Your question describes a contested Guardianship. Referring to the Guardianship proceedings as paper work is probably an over simplification of your situation.

    You will have to establish good cause to remove someone who has been appointed Guardian. If the current Guardian will not assent to your petition, the dispute will be litigated. Litigation requires advocacy. The papers that are submitted during the course of the litigation must be carefully prepared.

    To establish good cause you will need to gather evidence. Evidence is often on paper, but it also comes from the give and take of questions asked of the people involved in the dispute. Depositions (formally recorded statements) may be needed to nail down the testimony of witnesses, and to set the stage for a hearing on the merits of your case.

    The court hearing will complete the record on which the Probate Court Judge would decide the outcome of the case.

    Knowing about the time and expenses of litigation often encourages people to find alternative ways to mediate disputes, settle differences, and focus on the needs of the person who is under Guardianship.

    Read more about Removal or Resignation of a Guardian in section 5-311 of the Massachusetts Probate Code.

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

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  • In guardianship, what is the purpose of "bonding", and is necessary to post bond to be a guardian for an adult child?

    I am considering petitioning for guardianship of my adult child with Down Syndrome. The petition has an entry about waiving bond. What is this about?

    John’s Answer

    You can learn more about the bond requirement for Guardians by reading Article 5 of the new Massachusetts Probate Code, which took effect in July, 2009.
    A comment written by the lawyers who drafted the new Code explains how the requirement of a bond for guardians was added as additional security where a guardian may be receiving periodic income, entitlements, etc. for a ward, which after time may accumulate and warrant protection.

    John L. Roberts, Probate, Disability and Elder Law Attorney
    Longmeadow, Massachusetts

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  • How do you set up guardianship and conservatorship for elderly parent with dementia?

    We are adult children looking to obtain guardianship of one parent the other parent is deceased.

    John’s Answer

    The Massachusetts Probate Courts have published a short outline of Guardianship and Conservatorship.

    http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/upc/mpc190-general-information.pdf

    If you want to “do it yourself” you can find the Guardianships and Conservatorship forms at:

    http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/upcforms.html

    But there are many issues that can come up along the way, such as Guardian’s authority to administer medication and expanding a Conservator’s authority to make gifts of assets. Read more at:

    http://estateplansplus.com/html/probate_guardianship.html

    http://estateplansplus.com/html/probate_conservatorship.html

    Attorney Barreira’s suggestion to search for possible Health Care Proxy documents that may be on file with the parent’s past health care providers or hospitals is excellent. Additional ideas like that one, from professional counsel, could save you and your family time and money while protecting the interests of your parent.

    John L. Roberts
    Elder Law Attorney
    Longmeadow, Massachusetts

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  • Is a "life estate" the same as "life tenenacy"? Can children sell home?

    Both parents are 90+ Both parents are in nursing home House is in names of children with parents having life estate/tenency one child still lives in the house One parent has Alzheimers, the other dementia

    John’s Answer

    From your question, we can gather that the children are the remainder owners of home.

    You mentioned that one child still lives in the home, and you indicate that the parents who own a life estate would not be competent to sign a deed, because of mental impairment. As Attorney Golden explained, no one could buy the house unless someone had the authority to sign for them, or a Probate Court authorized the sale, by way of Conservatorship proceedings.

    If both parents are in a nursing home, it’s likely that Medicaid is paying for their care. In Massachusetts, the Medicaid program is called MassHealth. MassHealth has rules that can protect the interests of a child who provided care for a parent in the home for at least two years. But you are talking about more than one child having an interest in the house. If the house is sold while the parents are living, the proceeds of the sale could become part of the parents’ Medicaid estate. In other words, money from the sale would go to pay for their care.

    The Medicaid issues are most serious, and there are even more income tax issue to consider if the house is sold while the parents are living. It’s likely that the IRS would consider some of the sale proceeds as income if the house isn’t the principal residence of the people who are selling it. You can read about that at:

    http://estateplansplus.com/html/tax_cle_principal_residence.html

    So, your really question raises many more additional questions, and those questions can only be answered by an elder law attorney who takes the time to listen to all the facts of this situation.

    Besides saving money that might otherwise end up going to nursing home care and income taxes, getting professional legal counsel now could help the family better understand the situation. A recent court case involving a house on Cape Cod illustrates how misunderstandings about life estates can escalate into family misunderstandings:

    http://estateplansplus.com/pdf/medicaid_planning_case.pdf

    If you decide to get counsel, ask whether arrangements could be made to cover taxes and maintenance costs during the lifetime of the parents. By setting up a plan for managing the situation now, you can increase the likelihood that the interests of everyone are understood. It’s important to honor the intent of the parents, who set up the Life Estate ownership arrangement for their home.

    John L. Roberts
    Elder Law Attorney
    Longmeadow, Massachusetts

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