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Monthly Archives: June 2011

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A Proper Estate Plan

Depending on the size of your estate, a typical estate plan includes at least the following:

  1. Last Will and Testament
  2. Power of Attorney
  3. Health Care Proxy
  4. HIPAA Release
  5. Living Will*

Last Will and Testament:  Most people are familiar with what a will is and what it does.  It is a written instrument that disposes of your assets when you pass away.  It is the document in charge of distributing all the things that you have acquired throughout your life.  Your will is the document that is in charge of saying who gets what, who is going to care for your minor children, how your debts will be repaid, how taxes are to be paid, and how the probate expenses will be paid.

The person in charge of “administering” your estate is known as your “executor.”  The executor is the person that you appoint in your will to carry out your final wishes.  It is your duty to appoint someone who is honest, trustworthy, and competent enough to carry out your wishes.  It ultimately comes down to the executor to carry out your final wishes.

Your will is a powerful document.  It tells the world what you want to happen with all your things.  Not only is it important, it is an essential document of your estate plan.

Power of Attorney:  a power of attorney (POA) is another important document.  This document, however, grants power on another to make financial decisions for you; decisions that they believe to be in your best interest.  This document is the exact opposite of a will.  As stated above, when you create a will, you appoint someone to carry out what you have instructed him/her to do.  Your POA, on the other hand, makes the decisions that he/she thinks are in your best interest.  This is why you have to pick someone who is both competent and trustworthy.

So, why would you want to give someone this much control over your finances? That answer is simple.  As you age, you are much more likely to become incapacitated or unable to handle your affaires before your die.  Sure, you have a will, but you might not have an estate to administer if you become unable to handle your financial affaires before you die.

Health Care Proxy:  this is the document that appoints someone to make medical decisions for you, if you become unable to make those decisions for yourself.  You want this person to be someone who is both familiar with how you would like to be medically treated and familiar with the world of healthcare.

HIPAA Release:  this document instructs anyone holding your medical records to release those documents to your designated agent.  This document makes perfect sense.  Anyone holding your medical records is compelled, pursuant HIPAA, not to release your medical records to anyone who is not expressly authorized by you.  This document allows your agent to gain access to those records without unnecessary obstacles. It is easy to create, cheap to prepare, and often overlooked.

Living Will:  this document tells the world that you do not want your life to be artificially prolonged. For example, being kept alive by machines, such as a feeding tube or an artificial breathing machine.  This is an important document to include in your estate plan.  This document, however, come with a BIG issue.  Although preparing this document tells the world that you do not want your life to be artificially prolonged, no one has to abide by those wishes.

So, why prepare it?  The simple answer is that it tells your loved ones what your true beliefs are.  Although not legally enforceable, it offers your family guidance that most are willing to abide by.

There you have it, those are the documents that most americans should have in their estate plan.  Most americans, meaning those who have an estate that is less than $1,000,000.00.  For those who have more than $1,000,000.00 in their estate, have disable family members, or want to avoid estate taxes or probate, you will need a more comprehensive estate plan.  More to come.

My Tenant’s Not Paying

Lets face it, when a tenant does not pay his/her rent, your rental property is probably not profitable.  Times are tough and a lot of people are having trouble paying their bills, but without your rental income, how are you suppose to satisfy your own obligations?   It is better to address the situation as soon as it arises so you do not lose months of rental income.

It is important to know that you can NEVER just throw your tenant’s belongings out into the street and lock him/her out.  I repeat, YOU CAN NEVER USE SELF HELP FOR NON-PAYMENT OF RENT!  By doing so, you will create a whole other problem.

This is what the typical eviction entails:

  1. Notice to Quit
  2. Summary Process
  3. Entry Date
  4. Trial Date
  5. Entry of Judgment
  6. Appeal
  7. Execution
  8. Eviction
  9. Notice of Eviction
  10.  Sheriff Can Move Tenant out

This is quite the list, and I will be honest, I left out some other areas for readability.  It is a difficult process to evict someone in Massachusetts if you do not know what you are doing, so please consult a lawyer if you feel overwhelmed.  This will overview the basic skeleton of what you should expect.

Notice to Quit: The notice to quit is the legalee for: the document that tells the person to vacate, your tenancy is being terminated.  There is no real format that needs to be followed, but the document should include the current date and the vacate date, it should also be so certain that it cannot be reasonably misunderstood to be a document other than one telling the tenant to vacate.  Be cognizant of whether this is a tenancy at will or a lease.  This is because, if it is a lease, your notice to quit must comply with the terms of the lease agreement.  This document can be sent in a variety of way, but best practice would be to have a sheriff or constable serve the notice to quite.  This way the tenant cannot deny delivery.

Summary Process:  Also known as the summons and complaint, which are the legal documents that start the eviction process.  These documents tells the tenant why the landlord is evicting them and why they terminated the tenancy.  It is important to know that it cannot be filed until after a tenant refuses to leave after the vacate date on the notice to quit.  In addition, it must be delivered to the tenant by a sheriff or constable.

Entry Date:  Is the deadline by which a landlord must actually enter or file the complaint with the court and prove that he/she has served the papers on the tenant. This is a statutorily prescribed time that will require you to do some research or ask for assistance.

Trial Date:  The date that the trial is held, unless the tenant files a discovery form or transfer form.

Entry of Judgment: Almost at the end.  The court is now able to enter judgment, and they can enter a judgment as early as the day after the court makes its decision.  Meaning, the court will hear a case and then make a ruling, based upon the argument presented.  This decision can come as early as the day after the case being argued.

Appeal: Tenant or landlord must appeal within 10 days from the entry of judgment.

Execution:  This is the prize.  This is the document that a landlord is waiting for.  The landlord can get this document from the court and give it to a sheriff to serve.  The Sheriff serves the execution on the tenants, which tells the tenant that the landlord now has the leal authority to have him removed from the property.

Notice of Eviction:  The notice of eviction is the process of the Sheriff delivering the Notice of Execution.  It tells the tenant that he has 48-hours to vacate by order of the court.

Sheriff Can Move Tenant Out:  If the tenant refuses to leave, the Sheriff can now move the tenant out after the 48-hours has expired.

This is a lengthy process.  It typically takes two months to evict someone who does not want to leave.  It should be noted that it typically takes an experienced person at least two months to evict a tenant.  If for some reason a step is missed in the procedure, or an error is made, you may need to restart the process from the beginning.

Child Custody in Massachusetts

A child custody dispute is likely the most contentious battle that any family will face.  Not only are they contentious, they also bring out the worst in people.  That is why, frankly, it is an area where layers and judges detest.

With that said, it is important to understand the preference of custody in Massachusetts.  The preferred form of custody in Massachusetts is known as “Joint Legal Custody.”  Not only is it preferred here in Massachusetts, it is the predominate preference throughout the United States. This means that each parent must consult with each other about major issues involving their children.  It does not mean that there is an equal 50/50 split of time spent with each parent.  This type of arrangement preserves the non-custodial parent’s rights and responsibilities with respect to the children. In theory, this keeps the parents more involved in the development of their children.  In addition, this form of custody is typically worked out between the parents, with schedules developed by them.

Sole Custody is also an option, provided that there is an overwhelming showing that it would be in the child’s best interest.  The court will grant this form of custody, and limit the visitation, but it is not common.  This is why custody arrangements must be made in the best interest of the children, and parents must use goodwill and cooperation throughout the process.

Ultimately, the court grants custody based on the “best interests” of the child. This is why custody arrangements are always modifiable.  A modification requires that there be a change in circumstances and that a modification be in the “best interests” of the child.

This blog has been brief, at best.  It is important to understand that this is an area that deserves an amount of attention and understanding that goes beyond the purpose of these blogs.  These arrangements have to be in the best interest of the children and parents cannot let their personal vendettas affect their custody arrangements.