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Peter Caldwell Herbst
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Peter Herbst’s Answers

10 total

  • How can I find out how much a MassHealth lien is?

    The person who owns the property just passed away.

    Peter’s Answer

    You can start by contacting the MassHealth estate recovery unit (508-856-7653) and they will forward you to the caseworker assigned the file.

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  • What is the best way to orchestrate the transfer of real estate from both spouses to one spouse for PACE application purposes?

    We are planning to hire an elder law attorney to complete the PACE application for my father. He currently is taken care of by my mother and both live at home. The program is perfect for him but they have assets (real estate) in both their names...

    Peter’s Answer

    You should review any transfer being done as part of MassHealth application process with your attorney before making the transfer. Not only does he or she need to know about it, they need to advise you on the tax consequences of such and other impacts the transfer will have.

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  • My son wants to sell us his condo?he purchased it for 140,000. How does this work without any tax issues or problems for either

    He owns it so he could build some credit. We've paid his mortgage/ paid rent per say. He would now like to sell it to us and purchase a house.

    Peter’s Answer

    I agree with the other responses but would like to emphasize that before you do anything sit down with a CPA or attorney to map this transaction out from the perspective of both the buyer and the seller so that everyone is happy with the consequences. Too often I see transactions like this put together between family members and it is not until the following April that its looked at closely by a tax professional and at that point if there are problems its too late to restructure.

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  • Do you have to pay Sales tax on car in MA even if it has been paid in NA?

    I have been living in North Dakota for 2 years & just relocated to Massachusetts. I had purchased a new car in ND from a dealer 3 months back which was taxed at 5% (ND Sales tax). Will I have to again pay the entire MA Sales tax (6.75%) here befor...

    Peter’s Answer

    Massachusetts imposes a use tax on vehicles brought into Massachusetts within six months of their purchase out of state. This use tax is reduced by any sales taxes paid out of state so long as such state provides reciprocal treatment to Massachusetts Residents. North Dakota does appear on the Mass Dept of Revenue list of states that Massachusetts provides reciprocity for in some situations. If the RMV can't help you and appears to want to collect more tax than what is due you should seek assistance from any attorney.

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  • Do all siblings have the right to access the will?

    My mother passed away in October 2014 . My brother is currently in charge of the will and have not shown the will to any of the siblings or anyone of the family. My brother will not show it to anyone and I was wondering if there was any way I coul...

    Peter’s Answer

    In Massachusetts, the person in possession of a Will has 30 days after notice to deliver it to court, whether or not a probate petition will be brought (MGL ch 190b s 2-516). You can search the appropriate probate court records for such a filing at www.masscourts.org. If the Will was filed you can obtain a copy from the court. If not filed, you can take steps to force your brother to file it.

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  • Just found out my 80 year old mother hasn't filed her taxes in 7 years!! Any advice?

    Mom is 80 years old. Filed bankruptcy in 2008 and hasn't filed taxes since. Her only income is pension, social security and required IRA withdrawals. God only knows where all the paperwork is. Any advice?

    Peter’s Answer

    Obtaining a power of attorney for her and helping her with this is the best route. A couple things to keep in mind with unfiled tax returns: interest and penalties continue to run until returns are filed and any taxes due are paid so the sooner you can address this problem the better (and potentially less costly), and in the event she had adequate withholding that results in a tax refund you only have 3 years from the due date of the return to file a claim for refund.
    If you can't find all the records of the income one way to uncover them is to order a tax transcript from the IRS (Form 4506-T) and they will reveal the 1099s filed by third parties reporting income to your mother. Good luck!

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  • Review of 6-year old Nominee Realty Trust document previously used for one property to be basis for new NRT to hold new property

    Want to be sure that the NRT law has not materially changed regarding the specific use below. To hold the deed on one property while keeping Schedule of Beneficiaries private, listed Trustee(s) will be named within NRT notorized establish...

    Peter’s Answer

    I would agree with the prior answer in that Trust Law in Massachusetts did materially change in many respects July 8, 2012 with the enactment of the Massachusetts Uniform Trust Code. I would therefore recommend that an attorney review any trust before funding it with new assets to make sure your objectives will still be met. Nominee Realty Trusts themselves are not always recorded anymore in full - that was a change in the law going back to 2003.
    Lastly, you should talk to an attorney about the benefits and disadvantages of keeping the schedule of beneficiaries private. In today's world of online databases I find that often doesn't provide the privacy one thinks it will, and the risk is that the schedule of beneficiaries is lost and upon the death of the grantor the property reverts to the grantor's estate as a probate asset rather than go to the intended beneficiaries.

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  • My family revocable living trust has its own EIN. How do we file taxes?

    My parents established a family revocable living trust in 2014. The trust was given its own EIN. How do we file taxes? Can it be filed on their personal income taxes even though the trust is not registered with either my mom or dad's SS#?

    Peter’s Answer

    I would agree with the other answers in that this is not the normal practice. I would not use an EIN for a joint grantor trust even if a third party is a trustee. Therefore an attorney should review the trust to confirm that it is a grantor trust. The reason I wouldn't use an EIN for a revocable trust is that under the IRS regulations (26 CFR 1.671-4) a grantor trust using an EIN requires the Trustee to issue 1099s to the grantor reporting the Trusts income received (in addition to other requirements imposed on the trustee). All of that can be avoided by simply using the grantor's social. Another option an attorney who reviews this trust with you may consider is simply contacting the IRS and saying the EIN obtained in 2014 was by mistake, cancel it, and switch to the use of a SSN as this will become a yearly headache to deal with in the future. You should contact an attorney quickly to resolve this for you.

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  • Tax on sell of a home

    we have a house that was in 4 kids names. my mom lived there till she died. we have now sold the home and the monies split with 4 kids to we have to pain capital gaines on that money I know we have to claim it as income. what is the tax for someth...

    Peter’s Answer

    Establishing your basis in the property for calculation of the gain from the sale will be important. Namely, whether or not the property received a stepped-up basis to fair market value on date of death will be critical. You mentioned that your mom lived in the property until she died. Did she reserve a life estate in the deed when she transferred the property to the four children? If not, did she continue to “possess and enjoy” the property after giving it to the children? If there is a large capital gain at stake it probably justifies hiring a tax adviser who can make sure you’re using the highest possible tax basis.

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  • How much can an independent senior (84yrs old) gift money without getting penalized if admitted to a nursing home shortly after?

    how much money be gifted to children each without penalization? how much money be gifted to grandchildren?

    Peter’s Answer

    How does the senior plan on paying for the nursing home care? If they are paying using a long term care insurance policy or through savings, the answer will be different than if they are utilizing Veteran’s benefits or seeking Medicaid (MassHealth in Mass) eligibility. Several people already mentioned that seeking the advice of an elder law attorney would be important and I wholeheartedly agree with that advice.

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