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Peter Caldwell Herbst Jr
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Peter Herbst’s Answers

21 total

  • My wife's inherited everything without going through probate. Does she need a letter of appointment to get Tax Refund?

    CPA doing the 2014 Tax return for an Uncle that passed says he needs the appointment letter to send with the return in order to get a refund.

    Peter’s Answer

    Generally you do not need to be court appointed to receive a tax refund. See the instructions for Form 1310. That said, the tax preparer may know a fact that requires the court appointment so you should ask him or her why they reached that conclusion.

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  • When do the heirs of the estate report their share of the capital gains on real property sold in 2015 on their 1040s?

    I am executrix of an estate with a tax year ending 6/30/2015. We have sold real estate that is closing after that date, effectively in the fiscal year ending 6/30/2016. There will be a capital gain related to the sale and the estate funds will be...

    Peter’s Answer

    Massachusetts treats this differently than some states and it can be a confusing area of tax law. Since Massachusetts law states that real estate vests in heirs upon death the real estate is theirs for tax purposes when sold after death (unless a fiduciary is selling the property to pay debts). Undoubtedly certain heirs (and their tax preparers) will be confused by this and question why the estate isn’t recognizing any tax gain. It’s helpful for the fiduciary (or their tax preparer) to explain the tax treatment of this to each heir and provide a date of death valuation and copies of the settlement statement so that each heir understands how to report this on their tax return and is using consistent tax basis information.

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  • I've had my father 2 years, he's staying but needs MassHealth, he gave his out of state house to caregiving. Is this a problem?

    My fiancé, two sons, and I are caregiver to my dad. He has a house in Maine. It was a toxic, hoarding mess. It would cost over 25,000 to clean out. The property is worth 100,000 if it sold. I have not worked in 2 years as his full time caregiver. ...

    Peter’s Answer

    You've spotted an issue - the gifting of property within the last two years - that MassHealth would like to use to deny/delay your father from certain types of MassHealth benefits. Before filing any type of MassHealth application - even one that may not be dependent on prior transfers - you should sit down and review everything with an elder law attorney. You don't want to take a position on an application now that hurts him if he needed long term care benefits in a nursing home in the future.

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  • 2 executors/trustees-sisters, of Dad's will (died 4/19) I feel they have over stepped their power. what is their exact role

    As 1 of 5 beneficiaries, are we all entitled to receive copy of the Trust, not just the will?

    Peter’s Answer

    Trustees do have a duty to keep the beneficiaries informed about the administration of a trust. Depending on all the facts, when a trustee takes on the position of trustee or when a trust becomes irrevocable (which can occur to a revocable trust when the settlor dies) a trustee has to disclose the existence of the trust and their name and address to the beneficiaries. There are some "silent trusts" in which the settlor may attempt to keep the trust document hidden and instruct the trustee not to release a copy, but usually there are mechanisms (judicial and non-judicial) for getting a copy of the actual trust.

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  • Can u sell a house in massachusetts if you owe taxes on it?

    I owe back taxes on my home and wanted to no if i could sell it

    Peter’s Answer

    The answer may be different based on the type of tax you owe (e.g. federal income, state income, local property taxes, etc) and what stage of collection the taxing authority is in. You should consult with a tax attorney prior to listing the house for sale to find out the procedure in your specific case.

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  • I need a state address of where Living Trusts are filed in the State of MA.

    Todd Elliott 101 Munroe Ave Woburn, MA 01801 tel 781 933 0223

    Peter’s Answer

    If you provide more background or the purpose of your question it may be helpful. In addition to trusts previously being recorded with the registry of deeds for real estate matters, a trust with a contested issue may be filed with a probate court.

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  • Can I sue my tax preparer for over 6k supposed to reach my direct deposit acct and never did?

    He filed a wrongful tax return for 2014 but it never reach my acct. now IRS wants it back but I never saw that money which I'll have to pay from my pocket. I have no proof he retained it or stole it, all I know is I owe that money + penalty + inte...

    Peter’s Answer

    Given the amount at money at issue, especially with interest and penalties, you may want to consult with an attorney to explore all your options. You mentioned that you have "no proof he retained it" but attorneys are good at sifting through the facts to find the proof needed to support your case.

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  • Looking for estate planning attorney

    Estate planning attorney

    Peter’s Answer

    You may want to click on the "Find a Lawyer" link and then type in "estate planning attorney" in Wilmington, MA to find a local attorney who can help you.

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  • What are IRS gift and/or capital gain tax implications of quitclaim real estate deed?

    Mother created a quitclaim deed "granting" home to herself "for life" with remainder to her children. Upon her death: 1. Does IRS require a gift tax payment from children?, 2.Upon sale of home, when did the IRS clock start ticking relative to...

    Peter’s Answer

    Transferring a remainder interest in a primary residence can have positive and negative income tax implications. In Massachusetts this can also impact MassHealth planning concerns. The attorney who guided your mother through this transaction should have already provided your mother with detailed explanations for all these questions. You should start with that attorney to answer these questions and if not then find your own attorney who can guide you through this transaction and give you a more detailed answer based on the specific facts and circumstances of this transaction.

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  • I am Trustee for an Irrevocable Trust. Upon the death of the "settlor", the funds were to be divided "into equal shares"

    It was later revealed to me by the lawyer who wrote this trust, that this "equal share" was meant to be in an FBO account, bearing the name of the Irrevocable Trust, FBO for each of the beneficiaries. the money from the IRR Trust was distributed ...

    Peter’s Answer

    You should meet with an attorney to review this situation more closely. As a Trustee, you have fiduciary obligations to the beneficiaries that can lead to personal liability. Based on your verb tense, I'm guessing that the settlor has passed away and you are now ready to distribute funds? If so, this is a great opportunity to prepare an account for the beneficiaries to sign and to obtain general releases from the beneficiaries for all of your actions to further insulate you from any liability. And all of that (including meeting with an attorney) should take place before you distribute the funds.

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