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Paul Bernstein

Paul Bernstein’s Answers

7 total

  • Why stocks would go into probate when part of the trust?

    HELP. My husband is 1/3rd beneficary of a trust in California ( we live out of state). The trustee is his sister and the relationship is tense. Both parents died months ago. This week 1/4th of the savings account was disburced to each beneficiary....

    Paul’s Answer

    Vicki:

    Whether an asset goes through the probate court process depends on the ownership of the property. If owned individually at the time of death, a probate proceedings is required to change ownership to the next rightful heir(s). It appears from your question that the house was owned by the trust. Therefore, the trust will typically detail what happens to the house. No probate required.

    However, it appears that the stocks where owned that the stocks were owned individually and that the owner has now died. Therefore, a probate court process is required. Who will benefit from the stocks going through probate? The beneficiaries under the will (which may be the trust). Different states have different probate court processes and time varies.

    Paul Bernstein
    Salem, MA

    LEGAL DISCLAIMER
    Attorney Bernstein is licensed to practice law in Massachusetts.

    The response herein is not legal advice and does not create an attorney/ client relationship. These responses are only in the form of legal education and are intended to only provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that if known could significantly change the reply or make such reply unsuitable. We strongly advises the questioner to confer with an attorney in their state in order to ensure proper advice is received.
    By using this site you understand and agree that there is no attorney client relationship or confidentiality between you and the attorney responding. This site should not be used as a substitute for competent legal advice from a licensed attorney that practices in the subject area in your jurisdiction, who is familiar with your specific facts and all of the circumstances and with whom you have an attorney client relationship. The law changes frequently and varies from jurisdiction to jurisdiction. The information and materials provided are general in nature, and may not apply to a specific factual or legal circumstance described in the question or omitted from the question.
    Circular 230 Disclaimer - Any information in this comment may not be used to eliminate or reduce penalties by the IRS or any other governmental agency.

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  • Does an executor of a will have power over a trustee of a living trust?

    My sibling is named trustee to a living will, I am the next trustee in the event of siblings death.Trust written in 2000, I am named executor of the will. written in 2008

    Paul’s Answer

    To answer your question directly, it depends. Someone would need to review the documents. If you have the original will, you are responsible to, at a minimum, file it with the probate court. Whether a probate petition needs to be filed depends on whether the decedent owned any assets in his/her name alone at the time of death.

    Generally, an executor has little to no power over the trustee.

    Paul Bernstein
    Salem, MA

    LEGAL DISCLAIMER
    Attorney Bernstein is licensed to practice law in Massachusetts.

    The response herein is not legal advice and does not create an attorney/ client relationship. These responses are only in the form of legal education and are intended to only provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that if known could significantly change the reply or make such reply unsuitable. We strongly advises the questioner to confer with an attorney in their state in order to ensure proper advice is received.
    By using this site you understand and agree that there is no attorney client relationship or confidentiality between you and the attorney responding. This site should not be used as a substitute for competent legal advice from a licensed attorney that practices in the subject area in your jurisdiction, who is familiar with your specific facts and all of the circumstances and with whom you have an attorney client relationship. The law changes frequently and varies from jurisdiction to jurisdiction. The information and materials provided are general in nature, and may not apply to a specific factual or legal circumstance described in the question or omitted from the question.
    Circular 230 Disclaimer - Any information in this comment may not be used to eliminate or reduce penalties by the IRS or any other governmental agency.

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  • Starting an S Corp. online

    My wife and I are starting a restaurant in Massachusetts. We are basically buying the 13 year business and reopening in the spring. We have talked to our accountant and he thought we should form an S Corporation. Our attorney says he charges a fla...

    Paul’s Answer

    Dear Jeff and Nancy:

    First, best of luck and much success in your new venture.

    Second, I would strongly encourage you to retain the services of an experienced business planning attorney who can discus with you the pros and cons of the various forms of business ownership: partnership, corporation or LLC. Things to be covered should include income taxation, liaiblity protection, ownership transition, exit planning, etc.

    I have recently been involved in a situation where a client is spending much more than $2,000 to unwind an entity that he created online without an attorney. What seemed very simple to him at the time ended up resulting in a large and costly mess.

    If you take a few minutes and review the disclaimers of the online sights, they will tell you that they are not offering legal advice and if anything was doen incorrectly, you are on your own. The disclaimer will probably suggest that you seek the advice of an attorney.

    Lastly, I wonder if the owners of the Company Corporation (or LegalZoom) incorporated their business without the help of an attorney.

    Paul

    LEGAL DISCLAIMER
    The response herein is not legal advice and does not create an attorney/ client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that if known could significantly change the reply unsuitable. Mr. Post strongly advises the questioner to confer with an attorney in their state in order to ensure proper advice is received.

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  • My mother recently passed away without a will. Does her estate have to go through probate?

    She lived in Mass The estate is small, less than $25,000 She was divorced

    Paul’s Answer

    As with most things, it depends. In Massachusetts, if the assets where in her name alone, you will most probably need to go through the probate court process. Whether an estate must be probated does not depend on whether there is a will, but in how an asset is owned, If it is owned by an individual, then the probate court is typically the only process to change ownership to the heirs.

    However, if the assets are comprised of several bank accounts, in different banks and the individual accounts do not exceed $10,000, Massachusetts law permits the bank to make payment of the account to the next of kin under certain circumstances.

    Otherswise, if the assets are over $15,000 (not including a car) then a full probate will be required. If assets are under $15,000 (not including a car) then a voluntary administration process (a much simpler process) can be undertaken.

    Paul

    LEGAL DISCLAIMER
    The response herein is not legal advice and does not create an attorney/ client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that if known could significantly change the reply unsuitable. Mr. Post strongly advises the questioner to confer with an attorney in their state in order to ensure proper advice is received.

    See question 
  • My mother recently passed away without a will. Does her estate have to go through probate?

    She lived in Mass The estate is small, less than $25,000 She was divorced

    Paul’s Answer

    As with most things, it depends. In Massachusetts, if the assets where in her name alone, you will most probably need to go through the probate court process. Whether an estate must be probated does not depend on whether there is a will, but in how an asset is owned, If it is owned by an individual, then the probate court is typically the only process to change ownership to the heirs.

    However, if the assets are comprised of several bank accounts, in different banks and the individual accounts do not exceed $10,000, Massachusetts law permits the bank to make payment of the account to the next of kin under certain circumstances.

    Otherswise, if the assets are over $15,000 (not including a car) then a full probate will be required. If assets are under $15,000 (not including a car) then a voluntary administration process (a much simpler process) can be undertaken.

    Paul

    LEGAL DISCLAIMER
    Mr. Post is licensed to practice law in KS and MO. The response herein is not legal advice and does not create an attorney/ client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that if known could significantly change the reply unsuitable. Mr. Post strongly advises the questioner to confer with an attorney in their state in order to ensure proper advice is received.

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  • If the beneficiary of my life insurance policy is my estate, is the payout subject to estate taxes when I die?

    If the beneficiary of my life insurance policy is my estate, is the payout subject to estate taxes when I die?

    Paul’s Answer

    Whether or not the life insurance is included in your gross estate for estate tax purposes is determined by ownership, not be the beneficiary designation. For federal estate tax purposes, if you own the policy, the death benefits will be included in your gross estate. If your gross estate exceeds $3.5M (in year 2009), an estate tax return will need to be filed.

    If your gross estate exceeds $3.5M, whether taxes will be due is another question. Are you married? Is your spouse a US citizen. Will your spouse receive the insurance benefits? If so, the unlimited marital deducation will avoid estate taxes at your death, if your spouse survives you.

    You will also need to determine whether your state has a separate estate tax. In Massachusetts, there is an estate tax if your estate exceeds $1M (including life insurance death benefits).

    Lastly, many would advise against naming your "estate" as the beneficiary of your life insurance, as this would make an otherwise nonprobate asset an asset that would need to go through the probate court process at your death.

    LEGAL DISCLAIMER
    The response herein is not legal advice and does not create an attorney/ client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that if known could significantly change the reply unsuitable. Mr. Post strongly advises the questioner to confer with an attorney in their state in order to ensure proper advice is received.

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  • I am the administratrix of my sisters estate in mass. can i charge a fee

    can i charge a fee or a percentage of the total estate fot administratrix duties etc

    Paul’s Answer

    In Massachusetts, an administratix would be appointed if there was no will and, therefore, your sister died intestate, that is without a will. As such, Massachusetts law generally provides that you may charge a reasonable fee. Massachusetts Courts typically frown upon fees based upon a percentage of the value of the estate.

    What is a reasonable fee depends on numerous factors - and this question should be asked specifically of the attorney that is assisting you in representing the estate.

    The response herein is not legal advice and does not create an attorney/ client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that if known could significantly change the reply unsuitable. Mr. Post strongly advises the questioner to confer with an attorney in their state in order to ensure proper advice is received.

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