Boston Estate Planning and Probate Lawyer & Attorney : Gosselin & Associates Law Firm : Serving Boston, Winchester, Hingham, Wellesley, Manchester

I'll admit I stop by my local cemetery from time to time to visit my father's grave. Half the time I am there with my first grader to look for the fox that lives among the stones. But the rest of the time I'm there to talk. And I'm not alone. Invariably, others are there to talk too.

Talk? I don't expect a response from my father. He was never much for chatting. What I get is the sound advice and comforting reassurance that only seems to come from saying things out loud.

I tell him how I feel about client or family situations. I tell him of important decisions and of the choices before me.

On the darkest days I tell him I don't know what to do or where to turn on a serious issue. Despite no voice responding, I can't think of a time that I didn't leave his graveside without a clearer view of what was needed.

Some people speak to their plants, cats or the ashes of their dear-departed. I say it's all good. No matter your religious beliefs about the spiritual world, I believe there is good karma in connecting with other states of being.

Often in probate practice, I see greed as the sole driver. Self-interest and a grab-it-all mindset are the hallmarks of too many heirs. So many react to the loss of a loved one as a perfunctory event - like getting an inspection sticker for their cars, I want to scream. SCREAM!!!

The screaming leads more to the question than the answer. Is it the deceased's failure to be a good parent? Or is it the survivor's failure to be a good child? In many cultures, if not most, one's ancestors and one's connection to them is paramount to a good life.

As I talk to the pink granite block emblazoned with my family name, I know unless I connect with my own family while I'm alive, they'll never gain any wisdom talking to the marking stone over me once I'm gone.

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I'll admit I stop by my local cemetery from time to time to visit my father's grave. Half the time I am there with my first grader to look for the fox that lives among the stones. But the rest of the time I'm there to talk. And I'm not alone. Invariably, others are there to talk too.

Talk? I don't expect a response from my father. He was never much for chatting. What I get is the sound advice and comforting reassurance that only seems to come from saying things out loud.

I tell him how I feel about client or family situations. I tell him of important decisions and of the choices before me.

On the darkest days I tell him I don't know what to do or where to turn on a serious issue. Despite no voice responding, I can't think of a time that I didn't leave his graveside without a clearer view of what was needed.

Some people speak to their plants, cats or the ashes of their dear-departed. I say it's all good. No matter your religious beliefs about the spiritual world, I believe there is good karma in connecting with other states of being.

Often in probate practice, I see greed as the sole driver. Self-interest and a grab-it-all mindset are the hallmarks of too many heirs.  So many react to the loss of a loved one as a perfunctory event - like getting an inspection sticker for their cars, I want to scream. SCREAM!!!

The screaming leads more to the question than the answer. Is it the deceased's failure to be a good parent? Or is it the survivor's failure to be a good child? In many cultures, if not most, one's ancestors and one's connection to them is paramount to a good life.

As I talk to the pink granite block emblazoned with my family name, I know unless I connect with my own family while I'm alive, they'll never gain any wisdom talking to the marking stone over me once I'm gone.

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I have been asked over and again by my blog readers to give a simple outline of what needs to be done upon someone's death. So, because it is both a popular subject and really something that everyone will need to address in one manner or another, here goes.

In Massachusetts, probate is the process by which a deceased person's property, known as the "estate," is passed to his or her heirs and legatees (people named in the will). The entire process, supervised by the Massachusetts probate court, usually takes a little longer than a year. However, substantial distributions from the estate can ordinarily be made in the interim so long estate tax and creditor obligations can be determined with some degree of certainty. The emotional trauma brought on by the death of a close family member often is accompanied by bewilderment about the financial and legal steps the survivors must take. The spouse who passed away may have handled all of the couple's finances. Or perhaps a child must begin taking care of probating an estate about which he or she knows little. And this task may come on top of commitments to family and work that can't be set aside. Finally, the estate itself may be in disarray or scattered among many accounts, which is not unusual with a generation that saw banks collapse during the Depression.

Here we set out the steps the surviving family members should take. These responsibilities ultimately fall on whoever was appointed executor or personal representative in the deceased family member's will. Matters can be a bit more complicated in the absence of a will, because it may not be clear who has the responsibility of carrying out these steps.

First, secure the tangible property. This means anything you can touch, such as silverware, dishes, furniture, or artwork. You will need to determine accurate values of each piece of property, which may require appraisals, and then distribute the property as the deceased directed. If property is passed around to family members before you have the opportunity to take an inventory, this will become a difficult, if not impossible, task. Of course, this does not apply to gifts the deceased may have made during life, which will not be part of his or her estate.

Second, take your time. GRIEVE. You do not need to take any other steps immediately. While bills do need to be paid, they can wait a month or two without adverse repercussions. It's more important that you and your family have time to grieve. Financial matters can wait. (One exception: Social Security should be notified within a month of death. If checks are issued following death, you could be in for a battle. For more on Social Security's death procedures, click on http://www.ssa.gov/pubs/deathbenefits.htm)

When you're ready, but not a day sooner, give me or another Massachusetts probate lawyer a call to review the steps necessary to administer the deceased's estate. Bring as much information as possible about finances, taxes and debts. Don't worry about putting the papers in order first; as full service probate lawyers, we have experience in organizing and understanding confusing financial statements. The exact rules of Massachusetts estate administration differ are complex, so it is best to speak with a probate lawyer. In general, they include the following steps: 1. Filing the will and petition at the Massachusetts probate court in order to be appointed executor or personal representative. In the absence of a will, heirs must petition the court to be appointed "administrator" of the estate. 2. Marshaling, or collecting, the assets. This means that you have to find out everything the deceased owned. You need to file a list, known as an "inventory," with the probate court. It's generally best to consolidate all the estate funds to the extent possible. Bills and bequests should be paid from a single checking account; our law firm would establish and help you administer this account, so that you can keep track of all expenditures. 3. Paying bills and taxes. If an Massachusetts (or Federal) estate tax return is needed---generally if the estate exceeds $1 million in value---it must be filed within nine months of the date of death. If you miss this deadline and the estate is taxable, severe penalties and interest may apply. If you do not have all the information available in time, you can file for an extension and pay your best estimate of the tax due. 4. Filing tax returns. You must also file a final income tax return for the decedent and, if the estate holds any assets and earns interest or dividends, an income tax return for the estate. If the estate does earn income during the administration process, it will have to obtain its own tax identification number in order to keep track of such earnings. Our law firm has a CPA on retainer to make all of this simple and easy for our probate clients. 5. Distributing property to the heirs and legatees. Generally, executors do not pay out all of the estate assets until the period runs out for creditors to make claims, which in Massachusetts is a year after the date of death. But, in many cases, once the executor understands the estate and the likely claims, he or she can distribute most of the assets, retaining a reserve for unanticipated claims and the costs of closing out the estate. 6. Filing a final account. The executor must file an account with the Massachusetts probate court listing any income to the estate since the date of death and all expenses and estate distributions.

Once the court approves this final account, the executor can distribute whatever is left in the closing reserve, and finish his or her work. Some of these steps can be eliminated by avoiding probate through proper estate planning and through the use of trusts. Whoever is left in charge still has to pay all debts, file tax returns, and distribute the property to the rightful heirs. You can make it easier for your heirs by keeping good records of your assets and liabilities. This will shorten the process and simplify things for your probate lawyer (thank you for that, by the way).

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Practicing in the area of probate law in Massachusetts exposes me to so many good people. Well, most all of my clients and their families are good. It's their relatives that cause all the problems. Over several years of practice I have developed a set of baseline rules for dealing with people in probate cases; I like to call it the Gosselin Theory of Relativity. It boils down to this "friends for pleasure, strangers for business and relatives for no good reason at all." Let me share with you some true to life stories (with the names changed to protect the innocent).

Many years back I had written the estate plan (will and trust) of a then elderly woman of substantial means in the area North of Boston. "Mrs. Jones" had two children. "Elsa" was a loving daughter. She visited Mrs. Jones often and was her confidante and companion as Mrs. Jones' health declined. Elsa was more or less the model daughter. "Aurelius" was a greedy, lying, conniving germ of a man that was born to Mrs. Jones but took a wrong turn on the way out of the nursery. Mrs. Jones only saw him when he was on the lam or looking for a "loan." She never turned him away, but had a plan for him at her death. You see, her estate planning made provisions for Elsa, Elsa's children, even Aurelius' children - but it left nothing to Aurelius. Mrs. Jones, as is common, asked me to keep her papers for safekeeping, only telling Elsa and Aurelius that should something happen to her that they should contact me. Aurelius lived in a Mid-Atlantic state and drove through the night to reach my office at 8:30am.

He was waiting with his car idling for me to come in to work. "Are you Mrs. Jones' lawyer? She died yesterday. She was my mother. I want to know what I'm getting in the will." I knew this day was coming. My instructions were clear from Mrs. Jones that I was to give Aurelius any and all notices required under the probate law of Massachusetts, but nothing more. "You must be Aurelius," I said like any good lawyer who only asks questions fully knowing the answer before they are spoken. "I am so sorry to hear about your mother, she was a kind and thoughtful woman. Your mother's property was held entirely in a trust, her will is of no consequence, the trust is a private document and if there is any reason to contact you in the due course of its administration I will contact you, won't you confirm your address?" I succinctly responded.

After a variety of profanity, Aurelius stomped away. Wouldn't you know that when I called Elsa to inform her that I had met Aurelius her response to me was "Mr. Gosselin, why are you sorry about mother? She is right here with me." I'll be coming back to the theme of greed over the coming weeks, it is an unfortunate necessity of being a probate lawyer. [Housekeeping: I just want to let all of you know that this blogging thing is more time consuming than I ever imagined. So, please excuse short posts or gaps of time, it's my goal to produce a new blog every 3 days or less. Also, my webmaster tells me to make sure I use "magic" words in my blog, like probate, real estate, lawyer, elder law, Massachusetts, Boston, etc.", but I promise to use these terms in their proper context and from time to time to create blogs with no words like probate, elder law, Medicaid, estate planning, Massachusetts, real estate. :)]

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Despite my best efforts to avoid the Anna Nicole Smith story, I have been awed by the public fascination with the workings of the Probate Court. Admit it. Probate is sexy. The Probate Court is really a reflection of life itself. It's where babies are adopted, couples are divorced, mentally disabled people are protected, the hardest decisions of life and death are aired to the world, and decedents' property is accounted for in an orderly manner.

Anna Nicole spent most of her adult life in the Probate Court in Texas, then her body and her infant child generated more legal filings in a couple of months in the Probate Court than Howard Hughes did in twenty years. The Bahamas is not known for having a sophisticated legal system. I have had matters there over the years and once spent three days in Nassau trying to get a court official to acknowledge that a deed was signed in the prescribed manner - not rocket science. The main delay appeared to be the extensive break schedule made part of every Bahamian's work day. The Bahamas is mainly known as being an affordable place to do absolutely nothing in bright sunshine. So it is with some surprise that the Bahamian courts could actually get their act together sufficiently to figure out who fathered Anna Nicole's little girl.

Of course, the proceedings were held behind closed doors and with limited public participation. You wonder what happens behind those doors. My guess is ten minutes of reading the doctor's report that Larry did the deed and three hours of tiddlywinks to make the appearance of lengthy deliberation. Now that Larry Birkhead is the father of Daniellynn the Probate Court will need to determine what is in the best interests of the child. It appears that since Daniellynn was born in The Bahamas, she is a Bahamian or at least has claim to being a Bahamian. She's also American by virtue of her parents.

As she is in The Bahamas now, I presume that the Bahamian Probate Court will adjudicate her case. I think their laws, such as they are, are similar to typical US probate laws. In Massachusetts, Larry Birkhead would have first standing before the Probate Court. So long as he is not incapable of properly caring for the child then as the biological parent he will have custody of the child. This custody would be unsupervised as he is the natural parent - and we all know you don't need a license to be a parent. The role of the Probate Court in this type of case is to protect the best interests of the child. This child comes with quite a dowry. You see Daniellynn, as her mother's sole surviving child, can lay claim under US Probate laws (presumably in Texas Probate Court) to her dear-departed step-dad's fortunes. Anna Nicole as you will remember spent the better part of the last decade in the Probate Court fighting for her inheritance.

It's not nice to make fun of the dead, so I won't... Daniellynn will inherit, as an intestate heir, all that Anna Nicole had at death including her stake in Howard Marshall, II's vast fortune - or at least what her lawyers can settle for with Howard's family. With all the paparazzi hanging around the Probate Court, you wonder if us Probate lawyers will become celebrities? One can only hope.

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Is there a dirtier word in the whole wills and trusts business than probate? The public perception is that probate is nothing more than a way for lawyers and the government to get their fingers into people's pies. The whole point of probate in the first place is to establish the veracity of legal documents - your will is not your will until and unless it is presented to the public as a whole. This is done to prove whether it was signed the right way, you were mentally competent when you signed it and it meets other formalities. By law, and mainly because the law dates back several hundred years to England, probate in Massachusetts lasts for at least one year from the date of death and often much longer because of various administrative tasks required of an executor in Massachusetts.

What does a probate executor do anyways? I like to say that the business of being an executor is the only business where you are successful if you go OUT of business. The role of executor is to gather the decedent's personal property (the probate estate) and to distribute either according to the decedent's will or by operation of the Massachusetts intestacy laws. Intestacy laws in Massachusetts apply when there is no will and the executor in that case is technically called the administrator of the estate, but it's really the same thing for all practical purposes before the Massachusetts Probate Court. The executor is sort of the bus driver for the whole probate estate - abiding road signs and bringing the passengers (money) to their appropriate destinations. The executor needs to gather the assets, pay the taxes, divide up things that are hard to divide up (like a porcelain doll or a Chris Craft boat), pay taxes and other bills and lastly distribute funds to the legatees under the will or to the heirs in intestacy. In some states it can be a reasonably well paying proposition.

For the most part in Massachusetts probate, being an executor is a very responsible and only modestly compensated role. Admittedly, legal fees for probate can add up do to the procedural and practical steps necessary to properly settle an estate in Massachusetts. If you do even a little planning probate is entirely avoidable. But that little planning is not getting your will done. In fact, a will is nothing but a ticket to the Massachusetts Probate Court. Without probate there is no will as it is your last will that counts. Remember we call it your LAST Will and Testament, it's the latest date that matters for the probate court in Massachusetts.

An old time Boston lawyer told me the story of a Boston Brahman woman who lived on Beacon Hill. She would come into a his downtown Boston law firm each Friday at ten in the morning for the sole reason of updating her will. Each week she would have a new codicil to her will drawn up and then executed in full view of her lawyer as notary public, two legal assistants as witnesses and her two caregivers. She would make a point of reading aloud the codicil to her will in the presence of these persons. "I, Mary So-So, being of sound mind, blah, blah, blah..... leave my nurse Mary 68% of the funds set aside for my caregivers for exceptional service in the past week and to my nurse Eloise 32% of the funds set aside for my caregivers due to her tardiness in preparing my evening baths." And apparently this went on for many years as the old dame received excellent care. Her last will was the one that mattered.

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