Question:  With all the debate over gun rights and control after the horrible Florida shooting, I was wondering: what is the process to get a gun, in Massachusetts?

Answer:  In the hopes of providing your answer, I looked to the Mass.gov website.  The following represents key details involved in buying and owning a gun, in Massachusetts.

Firearms Licenses in Massachusetts
The two most common types of firearms licenses in Massachusetts are:

• a Firearms Identification (FID) card, which permits the license holder to purchase and possess non-large capacity rifles, shotguns, ammunition and pepper spray.  
• a License to Carry (LTC), which permits the license holder to purchase and possess all large and non-large capacity firearms, such as assault weapons, rifles, shotguns, and ammunition; this license also allows the carrying of concealed handguns.
  
  

Application Requirements
FID card applicants can be as young as 15 years old with permission of a parent or guardian.  Otherwise, an 18 year old can apply directly.  All applicants must complete an approved firearms safety course or Massachusetts basic hunter education course, both of which provide an overview of Massachusetts gun laws and teach individuals how to safely handle a firearm. This education step is not required to purchase pepper spray
LTC, applicants must be at least 21 years of age and must complete an approved firearms safety course or Massachusetts basic hunter education course.

Purchasing and Selling Firearms
A Massachusetts firearms license holder may sell up to 4 guns in any one calendar year through a private transfer without becoming a licensed Massachusetts firearms dealer. Each sale must be reported to the Firearms Records Bureau (FRB) within seven days of the transaction. 

Restraining Orders
According to Massachusetts law, any individual who is the subject of a restraining order issued pursuant to G.L. c. 209Awill have their Firearms Identification (FID) card or Firearms License to Carry (LTC) suspended as long as the restraining order is in effect.

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.  

Our office lost three wonderful clients, who sadly passed away, this week.  These great women were devoted to their families and surrounded by loved ones at the end.  While I lament the loss of our clients, I am pleased their children can handle affairs - without involving the probate court.
The goal for our estate planning clients is: simplicity for their loved ones.  Each of these women used a basic trust to deliver their assets outside of the probate court’s lengthy and expensive involvement.  Trusts may be confusing at first, but with a proper consult, the benefits often become clear.  Here is how trusts work:
By defining roles of benefit and management of assets, a client can serve both roles during their life.  When they pass away, the roles remain in place, filled by their spouse or children.  This structure allows assets to be managed and sold immediately after the client’s death.  Without this type of planning, assets, like real estate, will become frozen after death.  Family members must then navigate the probate courts, paying large fees for the court, attorneys, newspapers, accountants, etc. 
The families of our three lost clients serve as shining examples of probate avoidance.  By the way, their basic trust planning was inexpensive, as well.   ​

Question: My mother is 95 years old and we are considering nursing home.  She has a total of approximately $20,000.00 in assets.  Can we save some of this money before applying for her nursing home services? 
 
Answer: Unfortunately, given her age, she can't simply transfer her funds to you.  So, let's find ways to spend her money down to $2,000.00 on the day of her nursing home admission. At that point, Masshealth will cover her nursing home costs.    
 
Here are a few opportunities for helping your mother spend down her assets:
 
Funeral / Burial expenses: your mom's money can be used toward the following:
 

• Cost of a burial plot;
• Up to $1,500 cash per person that is specifically set aside for funeral and burial expenses.   (This amount must be in separate, identifiable accounts; or in the form of life-  insurance policies up to $1,500 per person specifically set up for funeral and burial   expenses);
• Money set aside in an irrevocable prepaid burial contract or an irrevocable burial in reasonable amounts for future payment of funeral or burial expenses.

 
Shopping spree: your mom can buy new clothes or a TV.  It is best to track these expenses (don't use large sums of cash withdrawals from her account) and try to keep each single check or debit card transaction under $1,000.00.  This will help during the financial review portion of your application with Masshealth. 
 
Legal services: take her to see an attorney who can help the difficult Masshealth application process.  You will thank your mom taking this incredible administrative burden off your back.

Question:  My Father is entering a nursing home.  Filling out the Masshealth application, it asks about his bank accounts.  We aren’t sure about all of his account details.  If we don’t list everything properly, will Masshealth know?  Will there be trouble, if we give incomplete information?

Answer:  Trying to gather all the information needed for a Masshealth application is hard.  Years of insurance, income, real estate and financial account details are all required.  You will also be asked to sign an affidavit affirming your information is true and complete.  I understand your hesitance.  So, how do you proceed?

First, do your best.  That is all Masshealth asks of you.  Your affidavit will be limited to the best of your knowledge. However, some applicants forget to list bank accounts (innocently or intentionally).  In an effort to reduce such omissions, Masshealth began a program to share information with certain banks. 

Bank of America, for instance, allows Masshealth to run names against their accountholder database.  If your Father had accounts with Bank of America, Masshealth will find them.  As for the rest of his financial information, watch the mail for the next 30 days.  You may receive bank account statements you didn’t expect.  Either way, give it your best shot, and you can’t lose.

Question: I got a non-smoker’s term life insurance policy ten years ago.  I recently started smoking.  Should I be worried about invalidating my life insurance policy?

Answer:  We all know that smokers pay more for life insurance premiums.  However, your premium rate was established at the start of your policy, based on the facts in place at the time. 

Your insurance company would have been able to contest payment if you died within the two years after signing your policy.  This contestability period commonly allows insurance companies to check facts surrounding your death.  For instance, death from smoking related health issues, like lung cancer or COPD, may justify an insurance company to withhold payment on a non-smoker’s policy. 
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In your case, the two years have passed.  You’ve come along way, baby.  The insurance company made their deal ten years ago, when you were a non-smoker.  Sure, you took up smoking later, but, your policy remains safe.

Question: I am interested in estate planning, but most lawyers go off the rails when discussing the use of trusts. Can you explain "trusts" in real world terms?
 
Answer:  I understand the mental haze formed by a single word.  Whenever my computer technician mentions a "server", my mind fogs up.  I am happy to explain a trust in its most basic form.
 
There are two major functions of a trust: 
 
1. A trust is like a rule book for your ownership of property.  For example, let's say you own your home individually. There are no rules to your ownership. You can sell anytime while you are alive, and leave the home to anyone in your Will.
 
However, if you wish to take advantage of certain tax or Medicaid laws, or if you just wish to avoid probate - a trust will impose certain rules on your ownership, which benefit you.  
 
Trusts aren't only for the 1%.  In fact, Medicaid avoidance trusts are primarily used by the middle class to ensure government funding for potential nursing home care.
 
2.  A trust can split ownership of property so one person manages and one person benefits.  This split usually occurs after you pass away.  For example, let's say my wife and I should pass away early.  Our two children will benefit by my meager assets - which will be managed by my brother.
 
If a lawyer struggles to properly explain these concepts, or if this column doesn't work for you, keep searching.  You need to understand your estate plan. 

Question:  The builder of my new home experienced delays.  Through our realtor, we agreed to extend the closing date.  When the new closing date arrived, the builder was still not ready.  We refused to extend further, but he was able to use a special clause in the contract.  Apparently, he had 30 more days to get ready.  We were surprised about the special contract clause.  Is this common?

Answer:  Yes, most purchase and sale contracts have a 30-day extension clause.  It can be a good thing for both parties.

For a buyer, the extension clause can prevent a seller from refusing to sell, by taking advantage of a minor title or condition issue.  For your seller, he was able to have extra time to get the property finished.  Overall, the clause is intended to keep the parties working together in good faith if the property is not ready to sell.
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It is important for attorneys and brokers to remember these extra 30 days, when agreeing to extend closing dates.  Here is the common scenario: A seller is not ready to close, so the parties simply amend the contract’s closing date.  Instead, buyers’ attorneys or brokers should consider “burning off the additional 30 days”.  This may give a buyer leverage against further delay.  However, a buyer risks losing the deal, if a seller still can’t close at the end of 30 days. 

During contract negotiation, this 30-day extension clause is often altered to a) limit the number of days, if a buyer’s mortgage rate is affected by the delay, and b) limit the amount of money a seller must pay to comply with the clause.  These “what if” scenarios are important to consider in each deal, and represent the value a real estate attorney provides.  

Question:  I am a notary in Massachusetts.  Can I notarize my spouse’s signature?

Answer:  Though it may be possible in other states, Massachusetts does not allow notarization of a spouse’s signature. Similarly, you cannot notarize for your parent, child, or sibling, including in-laws, step, or half siblings.  This rule may be restrictive.  But in researching this answer I learned of a much looser standard for notaries.

A notary can notarize for “friends of friends”.  What does this mean?

If a signer has no identification, and is not personally known to the notary, there may be hope.  Notarization may be allowed if the signer can be identified on the affirmation of a “credible identifying witness”.  The word of a credible identifying witness is satisfactory evidence of identity and similar to personal knowledge.

The credible identifying witness must personally know the signer and must be personally known by the notary. An effective chain of witnesses is created.  The credible identifying witness should not be involved with the document or have any financial interest in the matter.   

Question:  I am selling my deceased parents’ home in “as is” condition.  I cannot make any representation about the home to the developer buying.  I know nothing about the home’s septic system, and the buyer is willing to waive Title V requirements that I repair any defects.  However, the buyer still wants to know about the system before closing.  Any thoughts?

Answer:  Your buyer is willing to buy the home whether or not the septic system passes the requirements of Title V – a state law requiring sellers to pass an inspection of a septic system before selling.  This is good, because, a system repair could cost you tens of thousands of dollars.  Moreover, you want to remain in the dark about knowing the condition of the septic system.  You can satisfy the Buyer’s curiosity, by allowing their confidential assessment.

With a confidential septic system assessment, the buyer will hire a professional to review the septic system – similar to a formal Title V inspection.  This glimpse informs the buyer if the system will pass or fail Title V.  Importantly, the results of the assessment will be confidential on the Buyer’s side.  Your contract can obligate the results to be held in confidence, while keeping the buyer in the deal regardless of the results. 

This way, the buyer gets his or her answer early, and you remain uninformed in the future in case this deal falls through.

​Question:  The builder of my new home experienced delays.  Through our realtor, we agreed to extend the closing date.  When the new closing date arrived, the builder was still not ready.  We refused to extend further, but he was able to use a special clause in the contract.  Apparently, he had 30 more days to get ready.  We were surprised about the special contract clause.  Is this common?
Answer:  Yes, most purchase and sale contracts have a 30-day extension clause.  It can be a good thing for both parties.
For a buyer, the extension clause can prevent a seller from refusing to sell, by taking advantage of a minor title or condition issue.  For your seller, he was able to have extra time to get the property finished.  Overall, the clause is intended to keep the parties working together in good faith if the property is not ready to sell.
It is important for attorneys and brokers to remember these extra 30 days, when agreeing to extend closing dates.  Here is the common scenario: A seller is not ready to close, so the parties simply amend the contract’s closing date.  Instead, buyers’ attorneys or brokers should consider “burning off the additional 30 days”.  This may give a buyer leverage against further delay.  However, a buyer risks losing the deal, if a seller still can’t close at the end of 30 days. 
During contract negotiation, this 30-day extension clause is often altered to a) limit the number of days, if a buyer’s mortgage rate is affected by the delay, and b) limit the amount of money a seller must pay to comply with the clause.  These “what if” scenarios are important to consider in each deal, and represent the value a real estate attorney provides.  

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.