The magazine analyzed three such sites – LegalZoom, Rocket Lawyer, and Quicken WillMaker Plus – and ran the results by a law professor who specializes in tax and estate law. All three “do it yourself will” websites had a variety of problems, according to the study.

The problems included:

Outdated information. Two sites applied federal tax rules that were already months out-of-date.

Not state-specific. The law of wills varies from state to state, but the programs didn’t take into account variations in state law, including state lax law.

No tax advice. None of the programs offered tailored advice on how to reduce taxes – a critical flaw.

Incomplete. The websites often lacked provisions on how to handle business interests, electronic assets, trusts for children with special needs, trusts for pet care, domestic partnerships, multiple trustees, how executors are to be compensated, etc.

No flexibility. The websites frequently made arbitrary choices and didn’t allow bequests to be handled differently. And some added additional provisions to trusts without any warning.

The professor described one will produced by Rocket Lawyer as “primitive,” and another as “a mess.”

The magazine noted that LegalZoom allows you to pay extra money to receive attorney “support,” but when it contacted the company, it was told to type questions about arbitrary or missing provisions into a box and that these would be handled later in a hard copy of the will. According to Consumer Reports, even though it paid the extra fee, this never happened.

Using a “do-it-yourself will” website to create your will can be “like removing your own appendix,” according to the Consumer Reports article.

There’s simply no substitute for a lawyer who can understand your wishes and goals, and provide legal and tax advice that’s suited to your specific needs. Although it’s best to contact us first, if you have already paid for one of these services call us today to review your will and make sure it accomplishes your goals and is appropriate for your unique situation.

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One recent case of telemarketing fraud billed elderly consumers for medical alert devices they never ordered. Telemarketers would claim they were calling in response to a request for information from the person or a family member and then try to sell them the device.  Even those who didn’t order were sent a bill along with the shipment. The company behind the telemarketing fraud would then use threats and intimidation to induce the victims to pay.

If you don’t think telemarketing fraud can happen to your loved one, consider this. According to a study by the AARP, seniors over age 50 are disproportionately at risk for becoming victims of telemarketing fraud.   The study found that the average age of victims was 69 and that women were twice as likely as men to become victims.

Telemarketing fraud is also becoming increasingly sophisticated. Fast-talking predators use high pressure sales techniques and psychological ploys to overcome a senior’s initial resistance. Some other common schemes involve low-cost, high-risk investments, fake charities, time-sensitive product deals, or prize winnings that seniors are told they have to pay taxes or a fee to collect.

When a senior becomes a victim of telemarketing fraud, it can be financially devastating. Because these crimes are hard to trace, it is very difficult for victims to get their money back. Sadly, many incidents of telemarketing fraud against the elderly simply go unreported. Elderly victims may be embarrassed, don’t know where to go to report the crime, or fear they will lose their independence if they do report it.

Here are some steps you can take to help protect your elderly parents or family members from becoming victims.

1. Talk to your parents about types of telemarketing fraud and remind them never to pay up front for a product or service, or to give out personal information such as a credit card or social security number over the phone.

2. Offer to help them manage their personal finances so you can monitor bank and credit card statements for any unusual activity.

3. Have them sign up for national Do Not Call list (888-382-1222, www.donotcall.gov) to help cut down on telemarketing calls.

4. Design a call script, such as “I don’t give out personal information over the phone,” to aid them in ending calls from pushy telemarketers.

5. If your elderly parent has dementia, or is otherwise incapacitated, you may want to contact an elder law attorney to advise you on utilizing your parent’s durable power of attorney and/or obtaining a guardianship or conservatorship.

For more suggestions on how to identify and prevent elderly telemarketing scams, visit the Federal Trade Commission’s consumer education website.

The best protection against telemarketing fraud and elder abuse is to ensure that your loved ones are properly cared for and that their assets are protected. Proper estate planning can help give you and your loved ones piece of mind. Contact us to discuss various planning options today.

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In most cases, the answer is yes, you are entitled to receive executor fees for your services. However, there are some issues to consider before you can receive payment from the estate. If there is a Will, the deceased may have specified the amount of compensation or prohibited executor fees. This latter situation sometimes occurs when the executor is a family member who is also a beneficiary under the Will. If the Will is silent regarding executor fees or the deceased dies without leaving a will, then executor fees are determined by state law. This is where things may get complicated.

Consider the case of Lawrence, who was appointed the personal representative of an estate in Massachusetts where the primary asset was a house subject to a small mortgage. Lawrence sold the house, paid off the mortgage, dealt with the contents of the estate, and the assisted his attorney with court paperwork. He also made distributions to the beneficiaries. He charged the estate $7,500, what he considered a fair price for his services. When one of the beneficiaries objected to the fee, the court denied the executor fee because Lawrence did not have any records to back up his executor fees.

Unlike in some states, where the executor fees are fixed amounts equal to a percentage of the probate estate, in Massachusetts the executor is entitled to “reasonable compensation” for services rendered. The executor fees can also be subject to approval by the probate court.

What exactly is “reasonable compensation” though? How do you determine for which services you are entitled to be paid executor fees and at what rate? There are no clear guidelines under the law in Massachusetts, but the probate court will consider factors such as the size of the estate, the time reasonably required to administer the estate, whether the services rendered were reasonably necessary, and the amounts usually paid to others for similar services.

So what does all this mean in practice? Most importantly, you must keep detailed records. Do not wait until the end of the process to attempt to compile a list of services performed. You will need to disclose your executor fees in the final accounting filed with the court and/or shared with the beneficiaries. When you do, you should include:

1. a detailed record of the tasks performed
2. the amount of time spent on each task
3. the hourly rate billed for each task.

For example, a record that lists: “February 1, 2013: 2 hours at $25/hour preparing financial statement for accountant,” along with similar entires, are more likely to be approved by the court than: “$1,000 for bookkeeping services.”

Finally, keep in mind that any executor fees you receive are considered income and are taxable. If you want to avoid tax consequences, you have the option to decline compensation for your services.

Although it is an honor to be appointed or asked to serve as an executor, it is not a situation you should take lightly. Most often having the guidance of an attorney is necessary to avoid common costly mistakes. Contact us to discuss your rights and obligations.

A recent study by Fidelity Investments shows that many couples are not in accord about their retirement plan. For example, one-third of couples approaching retirement disagree about or don’t know where they are going to live after they retire, and 62 percent don’t agree on their expected retirement ages.

Here are some important things to discuss with your spouse as you get ready retire and develop a retirement plan:

1. When to stop working. Many factors go into a decision about when to retire, including job enjoyment and financial needs. But you’ll also want to include in your retirement plan how to maximize your Social Security benefits. There are a number of different strategies for when each spouse should file for various types of benefits, and couples who do it wrong can leave a lot of money on the table.

2. Finances. Both spouses need to understand their financial situation to develop a retirement plan. The survey found that very often, one spouse is much less involved in planning retirement finances than the other, and might not be ready to manage financial affairs should the need arise.

3. Lifestyle. Do you want to travel? Volunteer? Or relax on a beach somewhere? It’s important to have a conversation about your hopes and dreams for retirement. You can start by creating individual wish lists and then comparing them when developing your retirement plan.

4. Health care. Make sure you and your spouse have adequate health care coverage, either from Medicare or an employer-based plan. You’ll also need to understand the rules regarding Medicare coverage and when to sign up for it.

5. Long-term care. Unfortunately, one or both spouses will likely need some type of long-term care at some point. There are things you can do to make it easier on yourself if the need arises. Talk to your elder law attorney about putting a plan together – doing it early will save lots of headaches and expense later.

Hopefully your respective visions for your post-career life are similar. When you’ve taken these steps, it’s now time to put your dream plans in motion. To ensure that your long-term care plans for retirement are met, it’s vital that you speak with a qualified elder law and estate planning attorney so your wishes are always met.

Contact us when you are ready to make your retirement plan a reality.

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Medicare is health national insurance for people over age 65, the disabled, or those with end stage renal disease. For decades, the Medicare Improvement Standard meant that coverage for physical, occupational and speech therapy and some inpatient skilled nursing was denied by contractors processing claims for many people who had reached a plateau in their treatment, that is to say, for those who were not improving.

Medicare is supposed to pay for reasonable treatment as long as a doctor has prescribed it. For in-home care, a doctor must have certified that you are, in fact, homebound and have prescribed treatment that only a skilled practitioner can provide. This “skilled practitioner rule” keeps Medicare from paying for assistance with everyday activities like bathing and dressing.

Consider the case of Glenda, she is 76 and rendered disabled by diabetes. She is both blind and has suffered amputation of a leg and several toes. She was the lead plaintiff in the case that led to the settlement, and under the Medicare Improvement Standard, had been denied coverage of the skilled care she needed due to the fact that her condition was chronic and did not improve. This unofficial policy has been frustrating to many. It is often painfully obvious that those suffering chronic or degenerative diseases will not and cannot improve. But, the kind of skilled care covered by the Medicare Improvement Standard settlement can stabilize or slow the progression of such diseases. These patients can now prevent painful and costly complications.

The Medicare Improvement Standard settlement requires the Centers for Medicare and Medicaid Services to clarify to their contractors that home and nursing home therapy and nursing services for Medicare beneficiaries are not dependent “on the presence or absence of a beneficiary’s potential for improvement from the therapy (and nursing care), but rather on the beneficiary’s need for skilled care.” This language also pertains to outpatient therapy services. This clarified policy is know as the “maintenance coverage standard.”

The Center for Medicare Advocacy, co-counsel for the Plaintiffs, stresses that the new standard applies now, and that Medicare patients denied coverage under the old “medicare improvement standard” should advocate for themselves and appeal those denials.

It is important to remember that this Medicare Improvement Standard settlement does not affect the need for long-term care planning. Without careful planning you may still have to pay for years in a nursing home when you can no longer handle basic tasks of daily living and staying in your home is no longer practical.

If you, or a loved one, would like more information about long-term care planning contact us. Proficient in Estate Planning, Elder Law and Long-Term Care/Medicaid (MassHealth) Planning, Attorney Kristina Vickstrom can help you understand your rights and any remedies that may be available to you.

Photo Credit: 401(K) 2013, under a creative commons license.

At the time of his death, Kinkade had been separated from his wife of 30 years, Nannette Kinkade, and in a relationship with Amy Pinto.

Pinto claims that the Kinkade estate left her the painter’s home and studio (which they had resided in together during their 18 month relationship) as well as $10 million and original art for the purpose of establishing a museum.

This is where things get tricky. Pinto claims that the Kinkade estate left her this property in two holographic wills. A holographic will is a handwritten will. Only about half of the states recognize such wills, and California, is one of them. Mr. Kinkade’s wife, Nanette, submitted a different will for probate of the Kinkade estate. That will, written in 2000 leaves most of the assets to a living trust set up in 1997.

So what lessons can we learn?

1. Marriage can change the ownership of your property. It does not mean that you would no longer own your property. However, once you are married, property you own or acquire can become marital property even if that is not what the title says. In the Kinkade estate, the home he was sharing with Pinto could be considered marital property, even though it may be solely in his name. As such, the Kinkade estate may not be able to give it to Pinto.
2. Marriage does not end when you file for divorce or become legally separated. Uniform Probate Code Legislation in Massachusetts dictates that spouses are entitled to inherit a certain amount from each other – unless otherwise agreed to, such as in the case of a prenuptial agreement. In Massachusetts divorce can also void your appointment of your spouse as beneficiary of either a probate or non-probate asset. However, though Thomas and Nannette were separated, they were not yet divorced.
3. There is a difference between probate and non-probate assets. A probate asset is one that passes by the terms of your will, or by the intestacy statute if you die without a will. A non-probate asset passes outside of this process. For example, in a life insurance policy, or a 401(k), you appoint a beneficiary. The person you appoint will receive this money upon your death, even if you appoint someone different in your will.

In the first holographic will, the Kinkade estates leaves Pinto $10 million from a life insurance policy. Because a life insurance policy is a non-probate asset, this transfer is not valid. If Kinkade wanted Pinto to receive this amount from the policy, he would have to do so through changing the beneficiary appointment in his life insurance policy.

The second holographic will mentions art, and an additional $10 million bequest as part of the Kinkade estate. However, most of his art and assets were already placed in his trust, another non-probate asset. Again, if he wanted Pinto to have any of the things in this trust, he would have to amend the trust.

That’s a lot to remember. Key point: Always review your estate planning with your attorney after any life-changing event: separation, divorce, death in the family, and the birth of a new baby.

If you or a loved one are experience a life-changing event, or if it has simply been a while since your last review, contact Attorney Kristina Vickstrom. Handling all matters of estate planning, elder law, and long-term care planning, Attorney Vickstrom can ensure that no matter where you are in your life, your wishes will be carried out as you intend them.

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Now, Pamela’s father was a former Navy officer and a high school principal in conservative Orange County, California. He probably never imagined that he would spend decades collecting millions of dollars in rock-and-roll royalties, or that he would have artistic control over a counterculture legend’s poetry and a major say in how Morrison was portrayed in movies, such as The Doors. It’s probably safe to assume that Morrison didn’t anticipate this either and it probably wasn’t exactly what he had in mind.

Morrison could easily have avoided this unintended result by setting up a trust that would have cared for Pamela, but that would have directed his fortune to his own family if something happened to her, and put someone he knew and trusted in charge of his artistic legacy.

How is all this relevant to common folk who aren’t rock stars? The truth is, many people sign simple or “form” Wills, sometimes out of a book, from the Internet, or drafted by an inexperienced, general practice attorney. They make a similar and tragic mistake.

This is why it’s essential to talk to an experienced estate planning attorney about your wishes. A good estate plan considers all the “what-ifs,” and will make sure you accomplish your objectives, even if something you didn’t anticipate happens along the way.

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This time of year gets many of us thinking about charitable giving. The holiday season inspires us to give, and the New Year gets us thinking about taxes. In future posts we will discuss some of the considerations of charitable giving and gifting, and how they may effect your estate planning.

Today, let’s think about deciding where to invest our charitable contribution when donating. The last few years, a light has been shone on charities and how they use their resources. Unfortunately, some charities have been shown to misuse funds, in some cases fraudulently, and in some cases simply inefficiently.

With the economy barely out of recession, there are not as many resources to go around and many charities, good and bad, have found themselves struggling to make ends meet. So what is a well-meaning donor to do? We want to get the most bang out of our charitable buck, and avoid the disappointing possibility of learning we have donated to a poorly managed or downright fraudulent cause.

Here are some tips from the top charity watch dogs, Charity Navigator, Guide Star, and Charity Watch.

1. Give Proactively

Instead of giving simply because a charity asked, take the time to think about what causes are important to your family or community and from those, which charities have targeted goals that match your own goals for that cause. Another part of this tip, is to think twice about giving on the spot to a charity you are not familiar with.

2. Look at their Records

Once you have chosen a charity and goal you want to support, get copies of their financial records. Forms 990 for the past few years will show you how the charity spends its money, and whether they are growing their funds at least at the rate of inflation as well as raising new funds. This will help you identify a charity that is sustainable and that is willing to be transparent with you.

3. Don’t Give on the Phone

This kind of telemarketing fundraising is expensive for charities. If you get a call and you like the pitch, then hang up, do your research, and give directly to the charity. When you do this, your full donation goes to the charity and not to the fundraiser.

4. Always keep a record of your donation

For a donation under $250 the IRS will accept a cancelled check or bank record, but for donations over $250, they will require a receipt from the charity.

5. Give more than just your treasure

Charities may well benefit from your time or your talent as much as from your money. This can not only help you maximize what you give, you may be able to combine your financial contribution to your contribution of time to give much more than you thought you could. Being involved is also a great way to ensure your donations are being maximized. Give Generously.

As we get ready to be thankful for what we have and to think about the end of this year and the beginning and the next, remember to give generously and intelligently. Consider discussing you charitable plans with your estate planning attorney, who can help you put a plan together to ensure your values are also part of your planning.

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We’re not only voting for the next President and a Senator from Massachusetts in November, but on a battery of ballot questions. Ballot Question 2 is one of the more controversial. The so-called “Death with Dignity” or “Right to Die” legislation would allow an adult resident who is (1) capable of making and communicating health care decisions, (2) diagnosed with an incurable and irreversible disease that will cause death within six months, and (3) voluntarily, and in an informed manner, so decides to obtain a prescription for medication to end his or her life. You can read the proposed legislation here.

Oregon and Washington state already have similar legislation in place. In Oregon, most candidates are well educated cancer sufferers over the age of 65, who died at home and were enrolled in hospice care. This “typical candidate” is familiar to many of us working with elders. Maybe it is because so many of us know or have known someone like this that the “Right to Die” issue has strong voices on either side.

Opponents: The Committee Against Physician Assisted Suicide is the leading group advocating against Question 2. They argue that Question 2 is poorly written, confusing, and flawed. While the legislation requires the doctor to mention alternatives to assisted suicide, it does not ensure they have adequate access to and information about these options.

The Committee and its supporters are also concerned that the law does not require the prescribing doctor to have expertise in the array of end-of life options. Another concern is that the legislation does not require the patient to receive physiological screening or care in connection with this request. There is also a concern that even by doctors’ admissions, estimates on how long patients have to live are just that, estimates. Patients can outlive their prognosis by months or even years.

Opponents argue that we should be offering the dying better end-of-life and palliative care rather than the option to die.

Supporters: However, supporters of Question 2 look to Oregon and see legislation operating as it was intended. Death with Dignity and their supporters see this legislation as empowerment for people with a terminal illness. They cite the Oregon and Washington laws, where over 80% of patients using the law had end-stage cancer, while most of the remaining 20% had end-stage Lou Gehrig’s or end stage end stage Emphysema. They also point out that while psychological screening is not required under the law, if doctors believe depression is involved in a patient’s decision to request assisted suicide, they must refer to a mental health professional.

Supporters also argue that patients are protected by the several requirements of the law. For example, the patient must make two verbal requests 15 days apart, followed by a written request witnessed by two people, one of whom is not a relative, beneficiary, or operator of the facility the patient resides in or receives treatment from. The doctor must also refer to a consulting doctor to confirm the diagnosis and prognosis. Lastly, supporters think of the law as being simply about choice. They believe people have a right to choose when their quality of life is so poor, or their inability to participate in life so extreme, that they want to end life on their terms.

This is not an easy question to say the least. Massachusetts residents are tasked with reviewing the legislation and considering the arguments on either side to decide the best way to move forward. Please contact us if you have other end-of-life planning questions.

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