NEW LOCATION!!!

I am pleased to announce that I now have a new office space at 3 Hollis Street, Pepperell, Ma 01463 in the TenBroeck Insurance Building across from the Pepperell Recreation Center. My mailing address, phone, fax and email remain the same.

Why should you have an estate plan?

Estate Planning…It’s one of those things that most people have heard of and maybe they’ve even thought about doing it, but just haven’t gotten around to it. Some people think it’s only for the wealthy, but it’s not. Almost every time I meet with a new client I hear “I’ve been meaning to do this for years, I just haven’t gotten around to it.” Estate Planning is an important way for you to determine what happens in your life and what happens after your death- to your family and your possessions.

Who is best able to determine what happens to your property or your children, you or the government? I would argue that 99.9% of the time it’s YOU. Each state has its own intestacy statute that governs who your assets go to upon your death. Who gets your property when you die is determined by those statutes if you don’t have a will. Presently, if your primary residence is in Massachusetts and you are married and you have no descendants (i.e. children, grandchildren, etc.) who are not also descendants of your spouse and no surviving parents, then your spouse receives your entire probate estate, after expenses; but remember, laws are always subject to change. The statute (Mass. Gen. Laws ch. 190B §2-102) becomes more complicated when we start examining people who have other children who are not descendants of both the spouse and decedent (the person who died), the decedent’s parents are living, or if there is no spouse or other descendants.

Or maybe you live in New Hampshire. There, R.S.A. 561:1 governs who gets your property upon death if you die without a valid will, similarly, your surviving spouse only gets your entire probate estate if there are no surviving issue (i.e. children, grandchildren, etc.) AND your parents have also predeceased you.

It is important to remember, however that no everything becomes part of your “probate estate”, for instance, your life insurance policy, 401K or other accounts that have beneficiary designations do not generally become part of your probate estate, unless you have not named beneficiaries. Property that is held as joint tenants or tenants by the entirety in MA, is also not considered part of your “probate estate”. In a day and age where families are blended and it is easy to move from one place to another (especially if you live near a state border), it’s more important than ever to have the appropriate documents in place so who gets what is your choice, not the one size fits all approach that the statute in your home state provides.

Take Joe for example…

Joe lives in Tyngsboro, Massachusetts. He is married to Cindy. Joe and Cindy have three boys together- ages 8, 10, and 13. Joe’s parents are both living and he has one daughter, Mary, from a prior marriage. Mary has graduated from college, a few years ago and now has a good job. Joe and Cindy own their home in Tyngsboro jointly. Joe has a 401k from his employer, 2 life insurance policies and an IRA account, all of these have beneficiary designations. Joe and Cindy have a couple of joint bank accounts; however, Joe has some individually owned stocks and a savings account that he’s had since before they got married. He also owns a vacation home on Newfound Lake in NH, in his name only, which he and Cindy are planning on moving to full time…someday. One of Joe’s life insurance policies has Mary, named as the sole beneficiary. Though that policy was set up as part of the divorce settlement, in case something happened to him before Mary finished college, Joe has left the policy in place even though she’s now an adult with a good job, to provide something for her when he dies. Joe loves Mary, but gave up a lot in the divorce and feels strongly that the life insurance proceeds will be a good inheritance for her. It will leave her money for a down payment on a house or to pay for her wedding. Joe’s parents are self-supporting and he feels that any of his assets should go to support Cindy and their minor children. But what happens if Joe dies survived by Cindy, his parents, his four children and has no will? OR what happens to his children if Cindy dies before Joe?

WITHOUT A WILL IN MA WITHOUT A WILL IN NH (if they lived in NH when he dies) IS THIS WHAT JOE WANTED?
Cindy gets their jointly owned bank accounts, the house in Tyngsboro, anything else they jointly own, the life insurance proceeds for the policy that she’s the designated beneficiary on, and anything else on which she’s named as a designated beneficiary (i.e. 401k) AND the first $100,000 plus ½ of the balance of the estate (i.e. his stocks, individual bank account and the lake house). Cindy gets their jointly owned bank accounts, the house in Tyngsboro, anything else they jointly own, the life insurance proceeds for the policy that she’s the designated beneficiary on, and anything else on which she’s named as a designated beneficiary (i.e. 401k) AND the first $100,000 plus ½ of the balance of the estate. Cindy may also have a homestead exemption on the lakehouse that she could claim, since they were living there full time when Joe passed. No- Joe wanted Cindy to get everything. Except the one life insurance policy Mary is named on.
His 3 boys have an equal share in the ½ of the remaining estate balance (after Cindy’s share) with their half-sister. So they each get ¼ of what’s remaining after Cindy’s share. His 3 boys have an equal share in the ½ of the remaining estate balance (after Cindy’s share) with their half-sister. So they each get ¼ of what’s remaining after Cindy’s share. No- he knows Cindy will take care of their children, besides they’re kids what are they going to do with the money when they turn 18?
Mary gets the life insurance policy money PLUS ¼ the kids’ share. Mary gets the life insurance policy money PLUS ¼ the kids’ share. No- Joe wanted Mary to only get life insurance proceeds. Her mother got a lot in the divorce and her mom has no other kids, she’ll inherit a lot then. He paid for her college and she’s an adult now, he has younger kids he needs to raise and put through school.
WHAT IF CINDY DIES BEFORE JOE?
Joe’s children all share equally in his estate. There is also the issue of guardianship of the children- who will raise them? Joe’s children all share equally in his estate. There is also the issue of guardianship of the children- who will raise them? No- Joe wanted Mary to only get lift insurance proceeds. If Joe had done an estate plan, he could have his kids’ money go into a trust so they couldn’t spend it all at once. He could also have designated a guardian for them.
WHAT IF CINDY WERE STILL ALIVE BUT HE HAD NO SURVIVING DESCENDANTS?
Then Cindy would only get $200,000 of the estate plus ¾ of the balance of the estate. His parents would get the remaining ¼ of the estate. Then Cindy would only get $250,000 of the estate plus ¾ of the balance of the estate. His parents would get the remaining ¼ of the estate. No- Joe wanted Cindy to get everything.

*NOTE: For simplification, I have not used specific numbers regarding the value of Joe’s assets or talked about spousal or family allowances, creditor’s claims or possible estate tax implications.

If Joe had had an estate plan in place when he died, he could have accomplished his goal of having Cindy (or his boys if Cindy predeceases him) get everything in his estate. Even if your life is not as complicated as Joe’s you should talk to an attorney about estate planning.

A good estate plan examines all of these assets, not just what is in your “probate estate” and takes into account possible estate tax liability. It can also help you and your family avoid probate altogether. In the event you become incapacitated or are unable to make your own medical or financial decisions prior to your death, through the use of a health care proxy and/or advanced directive (depending on your state), a durable power of attorney, and maybe even a trust, your estate plan can help your family do these things for you without the time and expense of going to court for a guardianship or conservatorship.

With some planning you can save your loved ones a lot of time and expense and make sure that your wishes are known. If you already have a plan, review it every few years to make sure that that’s still what you want.

Fall

I’ve always thought of fall as the start of a new year. The kids are back in school and people are focusing on things they’ve neglected all summer. Fall brings new opportunities for us all to make goals for ourselves whether we are in school or not. What is it that you’ve put off doing all summer? What is it that you need/want to get done before the holidays are upon us, weather turns, and the snow falls? Maybe you’ve been meaning to review your estate plan because it was done when your kids were in diapers. Maybe your younger siblings were in high school or college when your kids were born and at that time you felt your potential guardian pool should something happen to you and your spouse was limited to your parents. Chances are a lot has happened in the past 3-5 years or so. Your parents are getting older, your siblings or friends are more mature and maybe have families of their own. You should look at your estate planning documents and make sure that’s still what you want. Estate plans are something you should review periodically to make sure that is still your intent. If you look at it and find that it no longer meets your needs or you’re not sure if it does, please contact me. What, you don’t have an estate plan and you have minor children? It’s time to add planning to the top of that fall TO DO list!

 

Mediation is not just for divorces.

I was speaking with someone at a networking event yesterday and he asked what I did.  I told him I was I was an attorney and mediator. I eventually asked him to keep me in mind if he ever needs my services.  He said he’s been happily married for 47 years and he hopes he never needs my services.  That comment really struck me.  I began thinking that he’s not the only one who thinks of mediation services solely in the context of a divorce or custody dispute.  Mediation can be used in many different kinds of disputes.  In my view, mediation works best when the people involved either want or need a continuing relationship, are seeking fairness, and/or are willing to be flexible.

Are you and your siblings in conflict over what to do about your aging parents or property that you share or jointly own?  Are you having a conflict with your neighbor(s)?  Do you have a problem with a customer or client that needs to be resolved?  I urge you to consider mediation or some other form of conflict resolution (i.e. collaborative law, etc.).

Dealing with the loss of a loved one…

As a mediator, divorce and probate attorney, I deal with people who have experienced (or are experiencing a loss) on a regular basis. Everyone deals with loss in a different way. Most have heard of the stages of grief: denial, anger, bargaining, depression, and acceptance.  Often my first contact with clients is in those initial stages of anger and denial. As a professional, I have to look my clients’ losses in a business-like manner. I can empathize, but I cannot get dragged into their emotions, otherwise I wouldn’t be effective in my job. In short, I try to keep it all at arms-length.

This week, however, I am mourning the loss of the father of one of my closest friends. He was like my second father to me. Jack Howell was a patient, kind, quiet man and father; when he spoke, you knew you’d better listen…even if you weren’t his kid. I remember the fun times we spent at high school Father-Daughter dances and being driven to the mall by him while he listened to baseball on the radio (which was like torture). Even in my adult life, he called me his “daughter”, attended my graduation parties.  He was generous enough to babysit for me when my son was a baby and I had to go to court for work; even with his health failing and the recent loss of his wife, he still called to wish me a Happy Birthday. He always thought of others…

I am sorry for his loss, but I believe that he is now in a better place and no longer suffering. He will be missed by many.  Rest in Peace.

 

Accountability

What is your reaction when you hear someone talk about holding people accountable? Do you think that it is about judgment? I don’t, I think it’s about our need for truth and/or the need to feel that we are being treated fairly. No one wants to feel like they are being taken advantage. No one wants to feel “stupid”. Miriam Webster defines accountability as- the quality or state of being accountable; especially: an obligation or willingness to accept responsibility or to account for one’s actions.

When you were a child, how did your parents hold you accountable? They likely grounded you or punished you in some other way for not doing your homework, getting bad grades or not cleaning your room, or not following some other rule, right? As an adult, who is there to hold us accountable? Sure, at work, you likely have a boss that will hold you accountable, but what about in life?

In life in general, it’s a little different, everyone has their own moral compass; yours is likely different than mine, though they may be similar, they are probably not exactly the same. This year, I’m working with second graders in my church who are presently preparing for their first Penance and Reconciliation. Our class the other day was about examining your conscience. I went through a number of scenarios with them and asked them what they would do in certain circumstances and why. There were a variety of answers and reasoning behind them even among the eight year olds in the class. As adults, there are more grey areas and rationalizations in our decision making, but we still need to be accountable to ourselves and those around us. Whether it’s right or wrong to eat that chocolate in the cupboard, the scale will hold me accountable for my actions.

I find that when I’m mediating or even practicing law, one of the things expressed by one side or the other is the need for accountability.

  • From landlords, “Look, I know that he can’t pay me the thousands in back rent that I’m owed because he’s not working, but I have my own problems and bills I have to pay too. I just want him out so I can rent the property to someone who can pay me. I also want him to accept responsibility for what he owes. I want him to know how I’ve been affected by his actions.”
  • Or from a plaintiff in a small claims action “I just want her to acknowledge that she swore in front of my kid and then hit him.” “I just want him to admit that he didn’t take the steps he should have before he painted.”
  • Or from a wife in a divorce “I wish he would just admit he was out with another woman.”

Sometimes the resolution of the case is contingent upon one side or both acknowledging their actions; this is true whether there is an apology accompanied with that acknowledgment or not.

  • Tenant: “I’ve told my landlord that I’m not working and it’s been months since I’ve been able to pay my bills. I don’t understand why he doesn’t just give me some more time.”
  • Defendant: “I did everything I should’ve I don’t how what his problem is… I said I’d fix it so it looks better.
  • OR “She’s always swearing at her kids and swatting at them if they break the rules. Her kid hit mine…”
  • From the husband “I didn’t cheat!”

As a mediator, I’d reflect back something that I learned from the other person in the joint session in an effort to get the person I’m speaking with to put themselves in the shoes of the other party. I believe it’s my job to help my client resolve their conflicts in a manner that is best for them, as an attorney representing my client to do that I often need to find out what’s behind my client’s position (keep in mind I don’t represent people in criminal matters). I believe this is especially important in the context of family law to help the client look at the situation from the point of view of others, whether that means their soon to be ex-spouse or their children, etc.

When we feel like we are being judged, its human nature to defend our actions (past or present) and to express the reasons for our position, but does this help you move forward? It’s not my job to judge you or your actions, no matter what role I’m in. I’m there to help you resolve your conflict and might mean helping you acknowledge those actions that may not have been seen in the most favorable light. Before you jump to defend your position, I urge you to look inside yourself and think of how others might have been affected by your actions or words. Remember, sometimes solving the problem may be as simple as acknowledgement so that everyone involved can move forward.

Preparing YOURSELF for the Thanksgiving Table

I saw a funny card on social media the other day, which I shared on my Facebook page.  It got me thinking about the fact that each person has a different level of tolerance for conflict.  Likewise, each family or social group also has its own level of conflict that is tolerable to them.  For some people and groups, sitting around the holiday table discussing politics and arguing with other family members or friends about past wrongs (or perceived wrongs) is the highlight of their year; for people or groups, just thinking about enduring another argument with “Uncle John” makes our stomach turn, but they do it because it’s what’s expected.

Some people may seek to avoid the conflict by simply not being present, maybe they moved away or go to a different gathering on holidays. At the other end of the spectrum, some people are highly competitive and love those arguments trying to on up each other (though others at the table may not).  In between those two extremes, we have others trying to accommodate the offending party and in doing so sacrifice their own needs or opinions.  We also have compromisers, who seek to resolve the conflict by having everyone give up something, but this doesn’t always get at the heart of the issue.  Finally, you have the collaborator.  This is the person that seeks to work with the other party to really listen to their point of view and see if they can find a way to move forward together acknowledging that everyone’s point of view is important to any resolution.

I encourage you to think about how you approach conflict resolution because recognizing your tolerance for conflict (and that of your family members or others around you) and how you deal with it can go a long way toward reducing it and making holiday more pleasurable.  This year when you’re sitting around the table with your family (or friends) and something comes up that is a hot button for you or your family ask yourself, “How can I change the dynamic here so that a conflict doesn’t cause me, or other members of my family, anxiety?”  “Is there a way we can hear each other better?”  For helpful strategies on managing anger, see my July 9, 2014 post entitled “Anger Meet Management”.

I hope you and your loved ones have a wonderful Thanksgiving!

Something to think about…How will your divorce affect your children?

Even thinking about divorce can feel like going down a river without a paddle, but imagine how it feels for our children.  Of course your divorce will affect your child(ren), but how can you as a parent best to protect your child(ren) from the pain of a divorce?  How can you avoid putting them in the middle of your divorce?  The answer may be either mediation or collaborative divorce process.  Many people have heard of mediation, but like a neighbor of mine, who shall remain nameless, you may think of meditation when I say mediation. No, we are not all sitting around a table saying “Ohm” with our eyes closed seeking to find inner peace. When I talk about mediation, I am talking about using a neutral mediator to run the process and help you and your soon-to-be-ex figure out what is important to you and your family so that you can move forward.  While collaborative divorce is growing as a field, there are still very few people who have heard about it or know what it is. Both of these processes fall into the “alternative dispute resolution” or “ADR” category; which means that you choose to resolve your matter outside of court.

Frankly, I do not know many people who like going to court. While it can be entertaining to watch others stand there before the judge and hear their stories, you need to remember, while you’re standing there, others are listening to and watching you. Who wants to sit around at a courthouse for hours on end to wait and let someone else decide their dispute? Who wants the entire courtroom to know the intimate details of their lives? The courtroom is a public space, which means that anyone can be there. It doesn’t have to be that way; if you are able to settle your differences before you go to court, then your life remains more private. It’s also important to remember that your lawyer gets paid to sit there in court too while waiting for your case to be called by the clerk; and the more you go to court, the more you pay your lawyer to be there with you.  I’m not saying professionals don’t deserve to get paid to be at court preparing, representing, and reassuring you; for many attorneys this is what they really enjoy, standing before the court, fighting to their last breath, but I believe that there are more effective uses of all of our time.

In mediation and collaborative law, you work to find solutions that will work for your family, as a whole. You may not “win” in the traditional sense or “have your day in court” so you can be “proven right” (or “wrong”). Frankly, the judge doesn’t know or necessarily care about you or your family individually, sure they might, but their job is to make decisions and they have hundreds of cases on their docket that they need to make decisions on. Do you really think that the judge is the person who should be making the decisions that will affect how your family supports itself or operates (think visitation schedule) or should you and your soon to be ex-spouse be making those decisions? Outside people don’t know what your children and family need to function;  its more likely than not that you and your soon-to-be-ex know better what will work for your family and children.

Of course, mediation and collaborative law are not for everyone, you have to be willing to listen to the other person. You may be thinking” I can’t stand hearing his/her voice” or “I can’t be in the same room as him/her”.  You need to examine yourself and decide what’s important to you.  These processes allow you the time and space, with the assistance of the professionals taking part in the process, to figure out what is really important to you and how you can satisfy those goals. You may not always get what you want, but we, as a group, help you to figure out what you need to move forward with your new life.

In order to get legally divorced, you eventually will have to go to court to get any agreement reached approved, but that appearance with an agreement is quite different than that of a litigated divorce. Divorce is the end of your marriage, but if you have children, it is not the end of your contact with your ex.  It is important to remember that whether you like it or not, you your ex is still your child’s other parent and it is very likely that you will see them at your child’s events (games, graduations, weddings, etc.)  Therefore, you and your soon-to-be ex still need to parent your children, as a team, to give them the best chance of growing up as happy, healthy individuals.

While it is often not easy, either mediation or a collaborative process can give you the skills to develop an effective co-parenting relationship. Going through these processes can also teach you how to resolve issues that may come up in the future, without litigation. You can and will learn a lot about yourself if you are willing to put in the effort. If you are thinking about a divorce, I urge you to ask yourself the following questions:

  • Do I want to look back with regret when I think about how I behaved during our divorce?
  • Don’t I want to look back and say we did the best we could for the good of our family and our futures?
  • Do I want to be a positive role model for my child(ren) and show them that differences can be resolved in a more civilized way and that I can work through challenges with others to get to a better place?

If your answers to the last 2 are yes, then I urge you to look at all your process options before jumping into litigation. Remember, your divorce can be different!