Q: After someone dies, the process seems broad and timelines are undefined. To keep things on track, are there "executor police?" By that, I mean, do the lawyers or does the court enforce matters for an executor?
A: I love the term "executor police." But, rather than one entity overseeing an estate, picture a different analogy: an estate is more like a boxing match. In one corner is the estate's executor (now called a personal representative, responsible to administer an estate). In the other corner are the heirs of the estate (folks who will benefit from the estate). The referee of this match, is the probate court. The court does not have a stake in the outcome of the match, but sets procedural guidelines for the executor to follow (i.e.: bonding, accounting, etc.). Note that someone's will can alleviate certain guidelines for an executor, giving more or less independence. The lawyers stand in each corner like boxing trainers. The executor's lawyer represents the interest of the executor, while the estate's heirs can have their own lawyers as well.
When the boxing match begins, the executor will begin gathering and selling assets, and identifying debts, if any. The heirs may be aggressive or passive during this process. If the heirs complain about the executor's work, the referee will step in. Most problems occur due to executor delay, incompetence or corruption. The court has power to compel an executor to perform in a certain way, or can even remove an executor, if the job is done too poorly.

​Question:  I have a sizable IRA and would like to protect it for my wife and kids, from a potential long-term nursing home stay.  I am told it is stuck in my name and I can’t transfer to a trust.  Do I have any options?
Answer:  You are basically correct.  You are the “I” (individual) in the term “IRA” (Individual Retirement Account).  Because IRAs are qualified tax deferral investment vehicles, you cannot transfer them to a trust.  Any attempt to liquidate the IRA will require a significant tax payment.  There are still planning options.
If we accept the fact you are “stuck with your IRA”, perhaps don’t double the risk by leaving it to your wife.  You have an opportunity to redirect your beneficiary designation away from your wife, and protect the IRA funds for your kids – in case your wife needs nursing care.  Note: this scenario assumes you pass away before your wife (this is certainly my plan). 
What is the downside?: Naming your trust as beneficiary may protect the assets but, doing so will end your IRA based tax deferral.   Upon your death, there will be significant taxes paid from your IRA, because unlike individuals, a trust cannot benefit from an IRA.  Consult with your CPA to determine the tax effect of naming your trust as your beneficiary. 
Possible offset to the tax effect:  Instead of naming your trust, you can name your two children to receive the IRA funds in their own names.  This allows them to continue tax deferral for a certain period of time.  However, it also subjects the IRA funds to your kids creditors (ie: death/divorce/taxes, etc).  Because your wife will have no control, you better trust your kids 100%. 
Ultimately, there is a tradeoff to be decided here:  do you prioritize asset protection at the cost of a large tax bill upon your death?  Explore further with a trio of professionals: Financial Advisor, Tax professional, and Attorney.  

​Question:         I am probating my Father’s estate.  I received letters from creditors who I don’t recognize.  I am familiar with his financial history.  I requested proof of the debt and got a list of old expenses.  They may be legit, but I can’t be sure.  How do I handle these? 
 
Answer:           A doubting personal representative of an estate has a few options, when dealing with creditors:
 
• Pay the debt, but risk that your family may object, later – remember, you are the “team captain” but subject to the will of the team (aka: the estate’s heirs or devisees).  Don’t go volunteering the team’s money to pay expenses which may not be legitimate. 
 
•  You can get advance approval from the Probate Court.  Here, you will give the team a chance to dispute.  Otherwise, if they don’t you will be authorized to pay the debt.
 
• You can “compromise the debt” by negotiating a resolution.  This can happen with or without Probate Court oversight. 
 
• Finally, you refuse to pay and defend any lawsuit brought by the creditor.  This lawsuit will likely be in the District or Superior Court, but must happen within a year from the date of death.
 
Use common sense and avoid spending a huge amount of your time, and racking up your personal rep. fees and legal fees.  That creates a double whammy expense for the estate’s beneficiaries.

Question:  I am selling my lifelong home and downsizing to a condo.  I will make enough from my sale to pay for the condo outright.  Some people tell me "it's financially beneficial to have a mortgage".  Others say "its freeing to live without a mortgage".  What should I do ?
 
Answer:  Home buyers run a gauntlet of professional opinion givers, who are specialists in their field, only.  For example, a mortgage originator will tout the tax benefits of a mortgage, and downplay the alternative financial freedom.  A real estate broker may argue to increase your offer's attractiveness, by paying cash.  Always check the source of your advice.
 
It is true, there are tax benefits in being able to write off mortgage interest payments.  At the end of the year, this write-off may offset taxable income, or even drop you down a tax bracket. 
 
Further, by preserving your sale proceeds, you may be able to invest the money at a rate of interest sufficient to offset your interest payments.  For example: a 4.5% interest rate on your mortgage can be offset by investing the sale proceeds properly to earn a similar rate.
 
However, owning your home outright can provide sweet mental and emotional freedom. I haven’t felt such freedom, but most of my senior clients will never go back underneath a mortgage, again.  Also, in this competitive homebuying environment, you will jump near the front of the pack as a "cash buyer".  You will save a few thousand in lender closing costs, as well.  Heck, you can always get a mortgage later, if you wish.
 
So, like most of the major decisions in your life to this point, get advice, be skeptical of the source, and ultimately follow your heart.   
 
Attorney James Haroutunian practices real-estate law, estate planning and probate at 630 Boston Road, Billerica. He gladly invites questions at james@hlawoffice.com or by phone at 978-671-0711. His website blog is found at www.hlawoffice.com.

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This week, a wonderful colleague from www.elderimpact.org, an online resource site helping seniors use technology to keep touch with family and monitor life’s requirements.  Marie Villeza recommends the following tech tools for today’s seniors:
 
To Stay Connected:
 
The Easy Family App Suite features an easy to use interface and provides a fast and easy launch of email, video messages, Skype, Facetime, Flickr, Facebook photo albums, and more. 
 
For Medication:
 
The Tricella Smart Pillbox will ensure your loved one follows his or her medication regimens. If he or she forgets to take the pills or accidentally takes the wrong ones, you’ll receive a notification.
 
Reminder Tools:
 
For brief lapses in memory or attention, such as misplacing car keys or forgetting to take medication or meals, the DeRoyal Reminder Rosie Clock provides up to 25 personal reminders. You can even record the messages yourself to give it a more personal touch.
 
Home Safety:
 
For safety around the home, there your local hardware store offers Motion Sensors and Smart Lights that turn on when someone enters the room.  This can provide needed alert when activity occurs at unusual times, like the middle of the night.
 
Caring for your loved one may be difficult, and doing so from far away can present issues. Thankfully, technology, apps, and services are available to give you peace of mind and make caring from a distance a little easier. You can utilize these options to stay connected, monitor your loved one’s health and safety, and to ensure your loved one is well cared for.
 
Attorney James Haroutunian practices real estate, estate planning and business law in Billerica at 630 Boston Rd and can be reached with questions at hlawoffice.com, 978-671-0711 or via email: James@hlawoffice.com.  
 
Marie Villeza’s www.elderimpact.org, is a great resource for senior tech information or for help with elder fraud related matters.  
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​This week, a Dallas jury sent a loud message to loudmouth online reviewers.  A wedding photographer whose reputation was smeared by newlywed customers won a major verdict for defamation.
 
The customer’s complaint: $125 charged by the couple's wedding photographer.  The couple felt the circumstances around the additional charge were unfair. So, they took to the social media and local television to air their grievance.
 
The harm alleged by the business: An astronomical loss of business, after the posts.  The photographer went from 100 weddings in 2014 to only 2 weddings in 2015. 
 
The judgment award: $1.08 million owed by the customer to the business.
 
According to the photographer’s attorney, the couple's negative publicity campaign included the following allegations:
 
- The photographer was "holding their pictures hostage”;
- She “blatantly stole money while holding pictures ransom and then adding on extra fees”;
- She was “nickel and diming” them.
- Colleagues of the photographer were harassing the couple for taking their complaints public.
 
This ruling is a sign that the justice system may be used to offset consumer review power prevalent in the social media age.  The lesson for angry consumers: take a deep breath before you trash a company online.  The first amendment will only protect you so much.
 
Attorney James Haroutunian practices real estate, estate planning and business law in Billerica at 630 Boston Rd and can be reached with questions at hlawoffice.com, 978-671-0711 or via email: James@hlawoffice.com.  
 

The National Football League Players’ Concussion Injury Litigation class action settlement became effective on January 7, 2017.  Class action representatives were given until August 7, 2017, to sign up as many class members as possible. 
 
There are a limited number of former NFL players, however, the settlement amount will net high fees for lawyers involved.  This explains recently aired television ads, reaching out to affected former players, by law firms usually advertising medical claims settlements.  These firms are just intermediaries, seeking a referral fee.
 
A problem arose, however, when allegations of deceptive practices targeting settlement class members.  Normal television advertising isn’t the problem.  Organized groups close to the case are alleged to be exerting personal pressure on former players.  The Court is concerned the former players are being deluged with solicitation.  Noting the victims are likely suffering from cognitive impairment, the Judge ordered further investigation to determine the fairness of the solicitation blitz. 
 
With such a small pool of potential litigants, class action lawyers have ramped up the competition.  Hopefully, the Court can play the role of referee, and maintain fairness in this high-stakes game.  
 
Attorney James Haroutunian practices real estate, estate planning and business law in Billerica at 630 Boston Rd and can be reached with questions at hlawoffice.com, 978-671-0711 or via email: James@hlawoffice.com.   
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Question:         I deeded my house to my son and daughter back in the 1980’s.  I live there under a reserved life estate.  My daughter passed away ten years ago, leaving her kids and husband behind.  I am wondering who owns my house? 
 
Answer:           Do you remember handing your kids a double sized popsicle, when they were young?  You could either break it in half, giving one stick to each child, or have them share the whole treat - of course, my kids would kill each other if they had to share it.   When you deeded the property to your kids, it was similar.  You got to decide the manner of ownership between your kids.  Either joint tenancy or tenancy in common.  
 
Think of “joint tenancy” as the whole, unbroken popsicle.  Each child owns the property together, and if one passed away, the whole property goes to the other child. 
 
Think of “tenancy in common” as the popsicle split in half.  When one child passes away, their share is passed on to their estate (not to their sibling). 
 
Unfortunately, your deed was silent as to the manner of title given to your two children.  Thus, they own as “tenants in common”.   Now comes the big question:  did your daughter write a Will? 
 
If so, it will dictate who gets the property.  If not, the ownership passes ½ to her husband and ½ to her kids (your grandkids).  Either way, your daughter’s estate needs to be probated.  This can be expensive with filing and publication fees alone ranging over $1,000.00.  I suggest starting this probate project now, as it may take many months. 
 
If you could turn back time, and draft your deed again, those two simple words: “joint tenancy” would help in a major way.
 
Attorney James Haroutunian practices real-estate law, estate planning and probate at 630 Boston Road, Billerica. He gladly invites questions at james@hlawoffice.com or by phone at 978-671-0711. His website blog is found at www.hlawoffice.com.  This column is published for informational purposes only and not to be relied on as legal advice, in any manner.  
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Question:         My daughter is going to live at college in the fall.  She is now 18 years old.  In case of a problem, do I need anything legally to support her medically or financially? 
 
Answer:           I remember my freshman year at college.  Though I was technically an 18 year old adult, I relied heavily upon my parents for support in many ways – financially, medically, emotionally, etc.  Nowadays, college administrators can get carried away in providing students with autonomy from parents.  With proper legal authorization, you can equip yourself in the case of an emergency.
 
Health Care Proxy – many reasonable medical personnel will work with parents for disclosure of information and collaboration of decision making.  Many unreasonable individuals will not. 
 
By signing a health care proxy document, your child can authorize you to step into their shoes, in the event of a medical emergency.  If your child cannot speak for herself, you will be able to make her health care decisions.  Further, as a designated health care agent, you will be able to gain access to medical information without delay or hesitation.  This is particularly important in dealing with college administration in the wake of a medical emergency, when information is scarce. 
 
Power of Attorney – many parents will establish joint accounts for children at college. This allows you to access information and, more importantly, to deposit funds.  This setup may serve most parents; however, your financial authority ends with this account. 
 
Sometimes, find themselves in other forms of financial obligation, such as rental agreements off campus, scholarships, loans, credit cards or meal plans.  In order to be legally prepared to help your student with any problems, you are best equipped with a power of attorney status. 
 
Attorney James Haroutunian practices real-estate law, estate planning and probate at 630 Boston Road, Billerica. He gladly invites questions at james@hlawoffice.com or by phone at 978-671-0711. His website blog is found at www.hlawoffice.com.  This column is published for informational purposes only and not to be relied on as legal advice, in any manner

Question:         I want to deed my house to my adult children and reserve a life estate. I am nervous that something may change with my kids in the future. What can I do if I want to change my mind, later.
 
Answer:           A life estate deed is a good tool for general estate planning, probate avoidance and Masshealth/nursing home planning. Make sure to review the pros and cons with an estate planning lawyer, as there may be a tax effect if you sell in the future. Beyond that, if you are moving forward with the life estate deed, let's talk about how to preserve flexibility.
 
Special language can be added to your deed where you reserve the right to change your mind.  The special clause is called a “power of appointment”.  In fact, a recent Massachusetts appeals court decision supports the use of these special clauses. Here are the facts of the case:
 
An elderly mother executed a deed to her three daughters, reserving a life estate to herself. This gave her the right to live at the home for the rest of her days. She reserved a special power of appointment, allowing her to change the people who will inherit her property.
 
Three years later, she reduced one of her daughters ownership interest from 33% to only 5%. After the woman died, the diminished daughter challenge the deed, arguing that mom “couldn't give her something and later take it away”.
 
The daughter lost at trial and appealed. The court supported the mother’s use of a power of appointment stating that” she granted something less than a full remainder interest”.  The Court continued, “ the reservation of the power of appointment resulted in a grant of a lesser estate… the daughter’s interest was in the nature of fee simple defeasible”. 
 
The decision clarifies and supports the ability for a senior citizen to gain the benefit of a life estate deed, but also reserve the right to change his or her mind.  By keeping such power, the parent remains in the drivers seat, in the relationship. The children still need to behave, in order to receive their inheritance.
 
Attorney James Haroutunian practices real-estate law, estate planning and probate at 630 Boston Road, Billerica. He gladly invites questions at james@hlawoffice.com or by phone at 978-671-0711. His website blog is found at www.hlawoffice.com.  This column is published for informational purposes only and not to be relied on as legal advice, in any manner.