Attested Hereto Suffolk Register Of Deeds

Skye v. Hession: Power of Appointment in Life Estate Deeds

Skye v. Hession

16-P-282 Massachusetts Appeals Court April 28, 2017.

A recent appeals court case involving probate litigation touches on a number of points, the one I found most interesting was its confirmation of a life estate deed containing a limited power of appointment.

In general, a life estate deed is a real estate deed allowing one person to own the property for the rest of their life and to name remainderpersons (traditionally known as remaindermen) to own the property at the initial owner’s death.

Life estate deeds can prove useful tools for some people for a number of reasons: avoiding probate, avoiding MassHealth/Medicaid estate recovery upon death because it does not go through probate, and simple proof of your direction at death for your real estate which has already been filed at the registry of deeds.

A power of appointment is when someone is given the ability to direct what happens to certain assets or property, whether or not that property belongs to the person with the power of appointment. A trust, for instance, may grant a specific individual the power to direct certain assets by will. This is a special power of appointment called a testamentary power of appointment.

A simple life estate deed without a power of appointment, however, leaves some unfortunate gaps for the grantor, the individual who set up the life estate. One of those is the inability to change the remainderpersons if those named in the will are no longer proper or feasible.

In Skye v. Hession we learn about a grantor who created a life estate deed for her home where she kept ownership for her lifetime and named her children to have three equal shares at her death. The life estate deed specifically stated that the grantor kept a power of appointment allowing her to change the remainderpersons by deed or by will. Just two years after the grantor signed the life estate deed she executed a new will which used the special power of appointment from the life estate deed to change one daughter’s interest in the remainder share to five percent while presumably greatly increasing the remainder shares of the other children. The appeals court decision does not tell us why this was done. Less than a year after the will was signed the grantor passed away. The case was brought by the sister whose interest had been greatly lessened through her mother’s testamentary power of appointment, a power of appointment used in a will. The appeals court affirmed the lower court’s ruling in validating the special power of appointment in the deed and the grantor’s ability to use the power of appointment.

Skye v. Hession does not discuss why the one daughter was almost completely taken out as a remainderperson, but there are many reasons why a grantor would want the ability to change a named remainderperson. Whether because of an argument with the remainderperson, a remainderperson’s outstanding debts, or the remainderperson predeceasing the grantor there are any number of reasons why a grantor would want to keep this avenue of change open through a special power of appointment and Skye v. Hession affirms the ability to do so.

Interested in a life estate deed or other estate planning advice? Schedule a consultation with Attorney Alexis B. Kaplan today: abkaplanlaw.acuityscheduling.com.

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Creedon v. Haynes: Lessons for Family Law and Estate Planning

Laura Marie Creedon v. Joseph E. Haynes, Sr.

16-P-184 Massachusetts Appeals Court 12/6/2016

Creedon v. Haynes is a case depending on the subtleties of the administrative process at the Probate and Family Court. The case shows that it is important for litigants to receive a final judgment on paper from a judge for contempt relating to a divorce agreement, and that a judge’s oral order is not good enough to serve as a binding order.

Beyond that, the issue that the parties were arguing over was the fact that the parties’ divorce agreement specified that the husband would name the couples’ three children as beneficiaries of his life insurance policy worth $100,000 through his job at the Lexington Fire Department. The wife brought a contempt motion when she discovered that the husband did not have the life insurance policy as his job did not even offer that benefit. The oral judgment that was at issue was the trial judge stating that the wife would have a claim of $100,000 against the husband’s estate at his death, but that claim could be offset by his holding a life insurance policy at his death and designating the $100,000 towards his ex-wife.

The children were all adults at the time of this case, which the father used to unsuccessfully claim that he did not need to follow through on the language from the separation agreement.

This case highlights the importance of several issues for both family law and estate planning attorneys:

  1. An attorney should confirm his or her client’s assets during a divorce so that there are no misrepresentations that will cause later problems. In this case there was no life insurance policy even though details of it were spelled out in the separation agreement.
  2. There should be follow up after the divorce decree takes effect to make sure that anything agreed to happens – this is true not only with beneficiary designations, but also issues ranging from health insurance to a new deed for the former marital property. An attempt to change the beneficiaries on a non-existent life insurance policy would have brought the problem to light many years earlier and allowed the parties to deal with the issue at that time.
  3. The language around future obligations should be carefully crafted. Oftentimes, life insurance policies are required in separation agreements for the other spouse to be able to continue taking care of minor children without child support money. In this case, the obligation in the separation agreement did not state that the life insurance obligation would end at any point – regardless of the children’s ages or if the husband were to lose the (imagined) life insurance benefit if he stopped working for the Lexington Fire Department.
  4. Estate planning attorneys need to review separation agreements of any divorced clients when working with them in order to give sound advice that does not go against any of their obligations through a separation agreement. Knowing that there is a requirement for certain beneficiaries on a specific policy can change the advice that will be given.
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Quick quiz: Do your loved ones know where to find your Will?

You have taken the time to seriously think about your wishes, met with a lawyer, and signed a Will. That’s great! But will anyone know where to find it?

In a crazy case in New Hampshire, three people – including the daughter – cracked open a cement vault to get inside of the casket of a man who died in 2004! What would cause people to do this? They were poking around a 10 year old corpse in a futile search for this man’s original Will. These modern day grave robbers must have been quite disappointed that they only found a pack of cigarettes along with the body.

Once you have done the hard work of creating an estate plan for yourself and to protect your family and loved ones, make sure that those you name to be responsible for your estate as personal representatives (also known as executors), guardians, and trustees all know where they can find your original documents. You sure don’t want to take it to the grave.

Here is the Boston Globe’s story: “Police: Grave ransacked in search for ‘real will’”.

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Lemonade Stand Interview

Listen to Attorney Alexis Kaplan’s interview by Linda Samuels on her podcast The Lemonade Stand.

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Estate Planning for Servicemembers and Veterans

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Attorney Alexis Kaplan recently attended a program run by the Boston Bar Association on estate planning with a focus on issues of concern to servicemembers, veterans, and their families.

Wills, Health Care Proxies, and Powers of Attorney can all be affected by considerations involving military service. Some of the complexities unique to providing services to U.S. military members include a servicemember who regularly moves her residence, a veteran whose family structure has felt the strain of his service, and statutory provisions providing relief to some common situations.

Attorney Kaplan is excited to work with servicemembers, veterans, spouses, and families with their estate planning needs. Law Offices of Alexis B. Kaplan, LLC thanks all of those who have served this country this Veterans Day.


Massachusetts Name Change Change

No, the title is not a typo. There has been a new change to Massachusetts Name Changes that is worth knowing about. People get their names changed for many reasons, from the (perceived) frivolous to the very intimate, and somewhere in between. As long as the reason is not one of fraud, the commonwealth will permit the change.

In the past that reason got listed on the certified copy of Name Change from the state. Name Changes can be prompted by some deep and personal reasons such as being transgender or changing a last name after a very strained or non-existent relationship with one’s father. The state is reacting with sensitivity to a request to change that by no longer listing the reason once it has been approved.

Contact Law Offices of Alexis B. Kaplan, LLC today to handle your Massachusetts Name Change.

Law Offices of Alexis B. Kaplan, LLC

92 State Street, 2nd Floor, Boston, MA 02109 | 617.903.0225 | info@abkaplanlaw.com

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