Worcester & Middlesex County Estate Planning & Elder Law

Why Did a Rock Star Sign a Will Days Before He Drowned?

“Connecticut State Police investigating the suspicious death of All That Remains guitarist Oli Herbert have examined a will signed by the Longmeadow native a week before his death.”

All That Remains guitarist Oli Herbert signed a will at a Hartford, Connecticut car dealership on October 9, 2018. The will was notarized by an individual who was a friend of Herbert and his wife Elizabeth, according to The Hartford Courant.

Mass Live recently reported in the article “Police probe will signed by All That Remains guitarist Oli Herbert days before suspicious death” that there isn’t an attorney signature on the will. Herbert’s will was filed in probate court in late December 2018. There also is no indication the will was reviewed by any legal representatives.

The will designates Elizabeth Herbert as Executrix and sole benefactor, adding that under no circumstances should Oli Herbert's sister, Cynthia Herbert, become Executor or receive anything from his estate.

Manchester attorney Anthony Spinella is representing Elizabeth Herbert. He told The Hartford Courant that his client initially cooperated with the state police and allowed them to search the couple's Stafford Springs home and answered questions. However, the attorney has now told police that any further requests should come through him.

Herbert's body was found on October 17 by a pond behind his house. The state medical examiner determined that Herbert drowned. However, they haven’t stated a manner of death.

Some of his fans have brought up various theories surrounding the metal guitarist's death. The Facebook page Justice for Oli Herbert has more than 11,000 followers.

Herbert began playing guitar at 14. His first paid gig was a Battle of the Bands on his final day of his senior year at Longmeadow High School.

Herbert started playing professionally in Massachusetts clubs with Netherworld, a thrash metal band he formed in 1991.

Herbert co-founded All That Remains with Phil Labonte in 1998.

Give us a call at (978) 342-1914 or visit us at www.dellamonaca.com.

Reference: Mass Live (January 14, 2019) “Police probe will signed by All That Remains guitarist Oli Herbert days before suspicious death”

 

Why Did a Rock Star Sign a Will Days Before He Drowned?

“Connecticut State Police investigating the suspicious death of All That Remains guitarist Oli Herbert have examined a will signed by the Longmeadow native a week before his death.”

All That Remains guitarist Oli Herbert signed a will at a Hartford, Connecticut car dealership on October 9, 2018. The will was notarized by an individual who was a friend of Herbert and his wife Elizabeth, according to The Hartford Courant.

Mass Live recently reported in the article “Police probe will signed by All That Remains guitarist Oli Herbert days before suspicious death” that there isn’t an attorney signature on the will. Herbert’s will was filed in probate court in late December 2018. There also is no indication the will was reviewed by any legal representatives.

The will designates Elizabeth Herbert as Executrix and sole benefactor, adding that under no circumstances should Oli Herbert's sister, Cynthia Herbert, become Executor or receive anything from his estate.

Manchester attorney Anthony Spinella is representing Elizabeth Herbert. He told The Hartford Courant that his client initially cooperated with the state police and allowed them to search the couple's Stafford Springs home and answered questions. However, the attorney has now told police that any further requests should come through him.

Herbert's body was found on October 17 by a pond behind his house. The state medical examiner determined that Herbert drowned. However, they haven’t stated a manner of death.

Some of his fans have brought up various theories surrounding the metal guitarist's death. The Facebook page Justice for Oli Herbert has more than 11,000 followers.

Herbert began playing guitar at 14. His first paid gig was a Battle of the Bands on his final day of his senior year at Longmeadow High School.

Herbert started playing professionally in Massachusetts clubs with Netherworld, a thrash metal band he formed in 1991.

Herbert co-founded All That Remains with Phil Labonte in 1998.

Give us a call at (978) 342-1914 or visit us at www.dellamonaca.com.

Reference: Mass Live (January 14, 2019) “Police probe will signed by All That Remains guitarist Oli Herbert days before suspicious death”

 

Why Do I Need Estate Planning If I’m Not Rich?

“Estate planning isn't only for the rich. Without a plan in place, there could be a long-lasting impact on your loved ones, even if you don’t have a pricey home, large IRA or valuable art to pass on.”

Many people spend more time planning a vacation than they do thinking about who will inherit their assets after they pass away. Although estate planning isn’t an enjoyable activity, without it, you don’t get to direct who gets everything for which you’ve worked so hard.

Investopedia asks you to consider these four reasons why you should have an estate plan to avoid potentially devastating results for your heirs in its article “4 Reasons Estate Planning Is So Important.”

Wealth Won’t Go to Unintended Beneficiaries. Estate planning may have been once considered something only rich people needed, but that's changed. Everyone now needs to plan for when something happens to a family's breadwinner(s). The primary part of estate planning is naming heirs for your assets. Without an estate plan, the courts will decide who will receive your property.

Protection for Families With Young Children. If you are the parent of small children, you need to have a will to ensure that your children are taken care of. You can designate their guardians, if both parents die before the children turn 18. Without a will and guardianship clause, a judge will decide this important issue.

Avoid Taxes. Estate planning is also about protecting your loved ones from the IRS. Estate planning is transferring assets to your family, with an attempt to create the smallest tax burden for them as possible. A little estate planning can reduce much or even all of their federal and state estate taxes or state inheritance taxes. There are also ways to reduce the income tax beneficiaries might have to pay. However, without an estate plan, the amount your heirs will owe the government could be substantial.

No Family Fighting (or Very Little). One sibling may believe she deserves more than another. This type of fighting can turn ugly and end up in court, pitting family members against each other. However, an estate plan enables you to choose who controls your finances and assets, if you become mentally incapacitated or after you die. It also will go a long way towards settling any family conflict and ensuring that your assets are handled in the way you wanted.

To protect your assets and your loved ones when you no longer can do it, you’ll need an estate plan. Without one, your family could see large tax burdens and the courts could say how your assets are divided, or even who will care for your children.

Give us a call at (978) 342-1914 or visit us at www.dellamonaca.com.

Reference: Investopedia (May 25, 2018) “4 Reasons Estate Planning Is So Important”

 

Am I Too Young to Start Thinking About Estate Planning?

“After taking inventory of your possessions, including your home, vehicle, stocks, life insurance policies, etc., there are many steps you will need to take to protect these assets -- and yourself. There are many steps and documents that advisors will suggest you put into place immediately for your protection.”

Many people believe they’re too young to begin thinking about estate planning. Others say they don’t have significant enough assets to make the process of planning worthwhile.

However, the truth is that everyone needs estate planning. If you have any assets, and you intend to give those assets to a loved one, you need to have a plan.

Forbes’s article, “Reviewing Your Financial And Estate Planning Checklist,” examines some important topics in estate planning.

The first of topic is a durable power of attorney for property, finances and health care. This document allows you to designate a trusted individual to make decisions and take action on your behalf with matters relating to each of the three areas above.

In addition to the importance of having all powers of attorney readily available, in case you become incapable of making decisions, beneficiary designations should also be looked at frequently to update any changes to family situations, like a birth or adoption, death, marriage or divorce.

Another topic to address is a living trust. A trust will give direction regarding where and how the assets are dispersed when you die. A great reason to use a living trust is that the assets in a trust do not pass through probate court, which can be an expensive and time-consuming process.

Another area is digital assets. It’s critical for your heirs to have access to digital files, passwords and documents. This can be easy to overlook. Create a list of your digital assets, including social media accounts, online banking accounts and home utilities you manage online. Include all email and communications accounts, shopping accounts, photo and video sharing accounts, video gaming accounts, online storage accounts, and websites and blogs that you manage. This list should be clear and updated for your heirs to access.

If we fail to plan for these somewhat uncomfortable topics, the outcome will be stressful and expensive for our heirs.

Give us a call at (978) 342-1914 or visit us at www.dellamonaca.com.

Reference: Forbes (January 4, 2019) “Reviewing Your Financial And Estate Planning Checklist”

Suggested Key Terms: Estate Planning Lawyer, Capacity, Living Trust, Asset Protection, Probate Court, Inheritance, Power of Attorney, Beneficiary Designations, Digital Assets

What Are the Financial Advantages and Disadvantages for Same-Sex Marriage?

Financial implications are likely not at the top of the list for same-sex couples deciding to declare their devotion in matrimony, but there are several to consider.

The U.S. Supreme Court ruled same-sex couples nationwide could legally wed in June 2015, and these couples have been getting hitched ever since. A recent WTOP article, "Gay and Getting Married? Financial Advantages and Disadvantages," reports that a 2017 Gallup poll found 10.2 percent of same-sex couples in the U.S. are now legally married.

Financial implications are probably not at the top of the list for same-sex couples deciding to marry. However, there are several to consider. Some may not be beneficial, but some are. The most significant issues for married same-sex couples, like married straight couples, should be retirement planning, estate planning, and tax planning.

The major benefit for same-sex couples marrying is the survivor’s Social Security benefits. If you’re lucky enough to have a retirement plan where there is a pension benefit, it can be transferred from spouse to spouse. The other big issue is gifting: Spouses can leave an unlimited amount of money between spouses. But if you’re not married, that doesn’t happen.

A major difference in what each partner makes can gum up the works, especially with the IRS. Consider the marriage penalty tax, and figure out if you’re better off being married or not being married. You could be subject to not getting some of the tax exclusions that would’ve worked to your advantage if you weren’t married. This is especially true if there is a wide variance in income between both partners. You should also think about loss-limit deductions on things such as investment property, IRA and retirement account deductions, and other tax planning situations that can become significant considerations, when one partner earns much more than the other.

When combining the income of the two spouses, it may put them both into a higher tax bracket. This will add more tax liabilities. You should also think about homeownership and retirement. For unmarried same-sex couples with a big variance in incomes who own their home as joint tenants with right of survivorship, the surviving individual will get the house when the first one passes away.  However, there could be some gift consequences, depending on how the money went into paying for the house and who put more money into it versus who didn’t.

There are also retirement accounts to look at. Married couples can pass IRAs or 401(k)s to one another at death, without triggering taxes. If you die with money in your retirement accounts, the IRS starts taxing that money as soon as your beneficiaries withdraw the money.  It also forces a withdrawal within a certain amount of time. However, there’s an exception for distributions to spouses, allowing the money to keep growing tax deferred.

You should also analyze healthcare. Many businesses offer healthcare coverage to their employees’ domestic partners. Depending on company policy for family coverage, legal marriage ensures it. There’s also a financial benefit for surviving spouses in a health saving account because that money can be transferred to the surviving spouse. Likewise, a married couple in a joint health savings account can contribute more pretax dollars.

All married couples also legally speak for each other in terms of medical decisions. Unmarried couples, either straight or same-sex, don’t automatically have that legal representation. For same-sex couples who opt not to marry, that can be solved with a medical power of attorney, an advanced medical directive, or healthcare proxy. These legally binding documents should be drafted, certified, and available in the event of an emergency. A power of attorney can cover both healthcare and financial decisions if one unmarried partner becomes incapacitated.

Reference: WTOP (May 30, 2018) "Gay and Getting Married? Financial Advantages and Disadvantages"

One size most definitely doesn’t fit all same-sex couples when it comes to the financial implications of marriage. The best advice for same-sex couples planning to wed is to get professional advice. Talking to a qualified estate planning attorney isn’t costly, and understanding what to expect before saying “I do” can eliminate some surprises. Give us a call at (978) 342-1914 or visit us at www.dellamonaca.com.

From all of us at the Law Office of Michael D. DellaMonaca, we wish you a happy Independence Day. We'll be back in the office on Thursday, July 5.

Myths of the Midlife Marriage

Marriage after age 50 is a wonderful thing, but it also has some financial challenges.

There are numerous money myths that you’ll hear when you consider getting married at midlife, particularly if your spouse-to-be has children from a first marriage. Here are six common myths from Forbes’ recent article entitled "6 Money Myths About Marrying After 50":

1: Prenups Are Just for The Rich and Famous. This is not true. If you’ve been married before and have children from a previous relationship, a prenuptial agreement is important to ensure that your assets will pass to your children from the prior marriage. What about a first-time marriage? There still might be a need for a prenup, especially if you own significant assets. Don’t think of a prenup as preparing for divorce, but rather more like writing your will. If you don’t have your affairs in order, the state will decide for you—just like dying without a will. After age 50, the focus of a prenup should be on protecting your children and grandchildren. For instance, some states allow a surviving spouse to claim his or her “elective share,” instead what’s in the decedent's will. A prenup allows your spouse to waive the elective share. That means the odds are that your estate plan won’t be challenged by your surviving spouse.

2: Don’t Talk Estate Planning with Your Stepfamily. Estate planning is critical when you have children from an earlier marriage.  Otherwise, your entire estate could pass to your new spouse and not to your own children. Have a candid discussion about your estate planning and prenup with your adult children and your new spouse. This will alleviate some of the concerns adult kids may have about how it will affect their inheritance, when their parent gets remarried.

3: Holding Assets Jointly Is Always Preferable. Long before getting married, couples should decide on whether they want to have separate or joint accounts and if one will sell his or her current home. If one of you sells their home, will the deed to the house you live in be changed to reflect join ownership? It is best to have these discussions before the wedding ceremony.

4: Your New Spouse’s Debt Won’t Impact You. This is a big one. Marrying a person with a large amount of debt, whether it’s college loans or credit card debt, can be a major issue in second marriages. Therefore, spouses should be upfront and candid about their debts before marrying. That way they can plan how to address the debt.

5: It Always Makes Financial Sense to Get Married. This is not always true. It depends on your personal and financial circumstances. Tying the knot may reduce your Social Security benefits, especially if you didn’t work while you were married the first time and can claim spousal benefits that are much higher than your own Social Security benefits. If you have an ill or disabled partner on Medicaid, then you might want to stay unmarried so he or she can to continue to qualify for benefits. The combined marital income might make your partner ineligible for Medicaid.

6: Your Spouse Automatically Has a Right to Make Your Medical Decisions.  This statement is not true. If there’s no advance health directive in place that details your wishes regarding end-of-life care, it’s not a certainty that your new spouse will be able to make medical decisions for you or tell your doctor what treatment you’d want. You should be clear in writing what your wishes are, so your new spouse and your adult kids will not fight over your care. Talk with your new spouse and your adult children, so they know your wishes and set up an advance health care directive. This should be part of your estate plan, which should also be revised to reflect the new marriage.

Reference: Forbes (February 13, 2017) "6 Money Myths About Marrying After 50"

If a late-in-life marriage is in your life, we can help you plan. Give us a call at (978) 342-1914 or visit us at www.dellamonaca.com.  

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More than 40 percent of couples recently shared that they don’t know how much their partner earns.

A sound understanding of your financial status is critical to planning, budgeting, and saving toward retirement. Many couples who share their lives together have no idea what their total household income is but still maintain that they regularly have open conversations about their finances. Huh?

Wjbf.com’s article, "9 Questions to consider in planning your financial future," reports the Couples Retirement Study by Fidelity Investments revealed that many couples need a better understanding of their joint financial lives. That said, many elect to divide up the tasks of money management, bills, assets, and debts. Although a seemingly equitable idea, it can leave one or both without all of the important financial details.

Both partners need to collaborate when it comes to financial planning, money management, and decision-making. That means sharing the responsibilities of building and protecting their financial future.

To help with this, here are nine questions to consider when thinking about your financial lives:

1. What’s your philosophy on money? Consider your values and whether you’re a spender or a saver, how you use debt, and what the role of money is in your life.
2. What’s our budget? Understand the cost of living and if you are able to save for future goals.
3. What do we own, and what do we owe? Take stock of your collective assets and liabilities—that’s anything that involves money.
4. Do we have an emergency fund? See how much you have and whether it’s titled in both names so you’ll both have ready access if needed.
5. What are our plans for our savings? Determine if you’re funding a college education, buying a cottage on the lake, or preparing for retirement. Fix your short- and long-term priorities and save for them as a team.
6. How much will we need to live comfortably in retirement? Think about how each of you envisions the future so that you can plan, save and invest to meet that goal.
7. What are we saving for retirement, and where is it located? Keep track of all 401(k)s, IRAs, and CDs dedicated to retirement. Also, know the amount you’re contributing and whose name is on each account.
8. Where do we keep our important documents? Make certain estate planning documents are up-to-date and stored in a secure spot—along with tax records, insurance policies, and other valuable documents.
9. What will happen when one of us dies? Take the time to do your estate planning—including writing a will, powers of attorney, and healthcare directives—so your family is cared for after the loss of one or both of you.

Reference: wjbf.com (August 24, 2016) "9 Questions to consider in planning your financial future"

If you need help answering these questions, sit down with an experienced estate planning attorney. Give us a call at (978) 342-1914 or visit us at www.dellamonaca.com. 

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What should be owned individually or owned jointly?

The average age of a couple getting married today is older: age 31 for a man and 29 for a woman. This often means merging two households. CBS Boston says that if you both own your own home, you may want to think about selling them and buying one jointly, according to its recent article "Couples & Money: Ours? His? Hers?"

If you go ahead and sell one home and move into the other, you need to decide ownership issues. Will you add your new spouse to the deed and add him or her to the mortgage as a responsible party?

Another thing to consider is that marriage doesn’t automatically combine your credit reports. If one spouse has a poor credit report and is getting out of debt, you may want to keep things separate. If you do want to purchase a house in the future, you’ll have one good credit report and one good credit score. If you bring credit card debt or school loans into your marriage, you’re responsible for paying that off yourself.

As far as banking, think about a joint checking account for household expenses and savings. However, you should keep your individual checking accounts if you’re both working, so then you’ll have your own money.

Keep your own credit card, but know that you’re responsible for the payments. You may want to have a joint card for the household purchases.

Any assets you bring into the marriage—like stocks, bonds, mutual funds, and savings—should be kept in your individual accounts. You can talk about using joint accounts for your future goals and tapping into your individual accounts to help you achieve those goals.

Make certain that you’re both taking advantage of retirement plans when available from your employer. Contribute the maximum you can afford.

As far as beneficiary designations, ensure that your spouse inherits your life insurance, IRAs, retirement plans, pensions, and annuities by updating the beneficiary designations. Review your health insurance policies to see who has the better insurance. And finally, you need to redo your estate planning now that you are married.

Reference: CBS Boston (June 8, 2016) "Couples & Money: Ours? His? Hers?"

If you've recently gotten married or are marrying soon, we can help merge two households into one, to the benefit of both. Give us a call at (978) 342-1914 or visit us at www.dellamonaca.com.

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Considerations When Marrying After 50

Coming together at 50-plus is different from getting married in your 20s, particularly when it comes to money. "You've had a lifetime of solidifying your money beliefs" and behaviors, says Janet Stanzak, president of the Financial Planning Association. These are some ways to smooth the transition if you're tying the knot this summer.

AARP Magazine published an article titled "4 Smart Money Moves If You Marry After 50" last summer that did a great job of discussing some reminders before saying “I do” after you turn 50. These reminders will work for you if you are walking down the aisle this year:

Talk about prior obligations. With age comes various obligations like support payments and debts. Share your credit reports and scores, and review previous divorce agreements for details about cash flow, assets, and debts.

Don't forget your adult children. Although you may have considered what you'd like to do for them financially and they've probably have some ideas about what they may one day inherit, a later-in-life marriage changes this. It also complicates your estate planning, so speak with an experienced estate planning lawyer about the changes. The article advises that you discuss your decisions with your new spouse and adult kids to hopefully decrease or eliminate the amount of controversy down the line. You can also formalize these plans in a prenuptial agreement.

In addition to a prenup, revisit your estate plan with a qualified estate planning attorney, in addition to your beneficiary designations. Wills finish second to legal titles to real estate or beneficiary designations on financial accounts, as well as retirement plans and insurance policies. Make any changes in writing, and be careful with Social Security, the article cautions.

One last thing: If you're close to 62 and want to apply for a former spouse's Social Security benefit, you shouldn’t remarry, as you must be single at the time you apply.

Reference: AARP Magazine (June/July 2014) "4 Smart Money Moves If You Marry After 50"

Getting married later in life can present challenges, but they aren't insurmountable. Let us help. Give us a call at (978) 342-1914 or visit us at www.dellamonaca.com. 

Solutions for Paying for Long-Term Care

"Will you still need me? Will you still feed me? When I'm 64?"

The Beatles first released these quaint, clarinet-fueled lyrics in 1967 when the loving answer to these questions was a resounding, "Yes!" Traditional marriage vows echo this sentiment in that they presuppose a relationship span that encompasses young and old age, wellness and serious illness, wealth and poverty. However, as modern aging has come to be defined by living longer with chronic care needs, and providing long-term care has shifted to the public sector, with two-thirds of long term care services paid for by Medicaid, loving spouses may be forced to answer, "No," to these questions. The future of elder care may depend on divorce.

In case you haven’t heard, long-term care needs are expensive. In 2014, the average annual cost of a semiprivate room in a skilled nursing facility was $83,114! The majority (70 percent) of people over 65 need some level of long-term care at some point—whether that will be provided in a home, an assisted living center, or a nursing care facility, according to The Huffington Post in a recent article titled "Is Divorce the Best Option for Older Americans?"

To find a way to pay for these services, many Americans look to the Medicaid Long-Term Care benefit. This program can pay for the room and board or home health services of qualifying individuals over age 21. To be eligible, an individual must meet the age and medical necessity criteria, as well as financial criteria concerning income determined by the federal government. Medicaid will look at an individual’s assets—like their banking accounts, real property, investments, household belongings, life insurance, and one car. However, all income and assets are subject to a five-year lookback period: you can’t just give away stuff to avoid it being counted as an asset for eligibility. However, if a person has financial excess, Medicaid allows him or her to "spend down" their income and assets in order to be poor enough to qualify. Doesn’t that sound a little tricky?

The original article explains that for married couples Medicaid has what are called "spousal impoverishment" rules. These rules cap the assets for a couple living together, although the rules are totally different if one spouse resides in an institution. The spouse living in the community typically is allowed to retain a larger portion of income for his or her living expenses. Medicaid will not try to recoup the costs for the long-term care from the estate of the deceased recipient until the community spouse passes away.

While all of these rules enable elderly and chronically ill individuals to access needed long-term care services, the original article argues that these rules also tacitly encourage divorce. "Medicaid Divorce" isn’t a new phenomenon. It’s been considered a legal option for avoiding the five-year lookback period for Medicaid eligibility and for avoiding the estate recovery process. Legal experts emphasize that asset protection is super complicated, and it may be different in another state. All that said, the solution of divorce is still a hot topic, as these rules discourage couples from living together and looking after each other. A couple's combined assets are only protected if the Medicaid recipient doesn’t live with his or her spouse, so by divorcing, a couple can cohabitate and still protect the income and assets of the spouse not receiving Medicaid home health benefits.

According to the original article, a divorce could also protect the primary residence from the Medicaid Estate Recovery program: The surviving spouse is given the right to use and enjoy it even though it’s owned by someone else. The surviving spouse lives there until his or her death, then the state is able to recoup the costs of care from the estate. That means that the next generation pays for the care of their loved ones by losing a potential inheritance. A divorce could keep the real property in the name of the community spouse and protect it from recovery for Medicaid care expenses.

Aging and care are already expensive and stressful, and even the young Beatles in 1967 wondered if love now would translate into care in old age. It should.

Reference: The Huffington Post (March 16, 2015) "Is Divorce the Best Option for Older Americans?"

Talk to an experienced elder law attorney and find out about divorce and other options. The good news is, however, that in Massachusetts, you might be able to avoid such drastic measures like divorce with proper planning. Give us a call at (978) 342-1914 or visit us at www.dellamonaca.com.