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Estate Planning SAQs

We are all familiar with Frequently Asked Questions (FAQs), but sometimes those do not answer more specific questions we have about our unique situations that we don’t want to ask for one reason or another. This month, we thought it would be fun to list the uncommon questions we have received at Holly Lynch Law in the areas of estate planning and probate. Next month, we will focus on school law. And if you have one to ask or share, please let us know! We may address it in a future newsletter.

I can’t decide on naming a guardian. Can we create our wills without that information?

Yes. You don’t ever have to nominate a guardian in your will. But if you do not, then anyone can petition to be a guardian, and the court will decide who takes care of your minor children. It is better to name someone now—the person you would choose if you were to die tomorrow—and change it later if circumstances change. You can also add “if/then” language so that you don’t have to modify your will later, e.g., “If Prince is no longer living in Minnesota, then I appoint Sheila E. to care for my minor children.”

If my trust has nothing in it right now, do I need to open a bank account?

No. Many families, especially those with young children, create “pourover” trusts, which are funded after the death of both spouses. These are created primarily to care for minor children for a predetermined number of years if something should happen to both parents. Although the trust is effective as of the date it is signed, it does not have to contain any assets. So you do not need to open a bank account for it until there are assets in it, which in most of these cases, is after the second spouse dies. You can, however, choose to fund it prior to death, and then you would open an account.

I would like to protect my house, but I may sell it and buy something less expensive. Does that undo any estate planning I do now to protect it?

No. If you transfer your house into an irrevocable trust, you are still able to sell it later, but the proceeds must remain inside the trust. It is common for many older couples to downsize. The irrevocable trust allows the trustee to sell the property and buy something else, but the new property and any excess proceeds must all stay inside the trust.

My father’s will names me as Executor. Do I need to also get a Personal Representative?

In Massachusetts, they mean the same thing. In 2012, Massachusetts adopted the Model Uniform Probate Code, which replaces the term “executor“ with “personal representative (PR).” This change does not invalidate any nomination in wills created prior to 2012—if you are nominated in the will as executor, you have priority to serve as PR.

Should I compensate my personal representative and trustee? If so, what is a typical amount?

That is completely up to you. Generally, if the PR is a beneficiary of the will, most clients do not compensate. But there is some work involved in probating a will, so it is not unfair to reward the child who is doing the work but splitting the estate with siblings. When clients do choose to compensate, the amount usually varies from a “reasonable hourly rate” to $5,000 or $10,000, depending on the size of the estate.

A trust, especially one that is drafted to last for years after the grantor’s death, is more work, and a trustee is usually compensated for this work, especially one who is not the beneficiary. Clients may also choose to compensate on an hourly basis, an annual flat fee, or a lump sum.

I am probating my father’s estate. Everything goes to my brother and me equally. When can I make distributions?

The answer to that could depend on the type of probate administration, but in all cases, creditors have one year to file any claims against the estate. If you are confident that all debts have been paid, and none are likely to come forward within the year, then you may distribute when and as you feel comfortable. As PR, however, you bear the liability if a properly filed claim does arise before one year has passed.

How is Special Education Affected by COVID?

With schools shutting down last spring, many students were not able to receive their special education services as required by law. With many schools starting the school year remotely or in a hybrid format, students are frequently losing some of their in-person services. Many students who require significant structure and one-on-one time with educators are in great danger of regressing or worse, not able to learn at all. One of the most common phone calls my office receives is, “What are my rights as a parent during this?”

Federal and state law mandates that schools provide a free appropriate public education (“FAPE”) in the least restrictive environment to students with disabilities. Prior to the pandemic, this would mean that if a student could learn effectively only in classes of small sizes, the school could not put him or her in a regular general education class. Conversely, a school cannot put a student in a substantially separate classroom if the student is capable of learning in a general education classroom.

The question becomes what constitutes FAPE with regard to remote learning. Federal law provides that individualized education programs (“IEPs”) must still be followed, which means that, despite the pandemic, districts are still responsible for providing all special education services, even if the school is engaged in remote learning. This means that if a child was receiving one hour per day of specialized instruction before the pandemic, he or she should still receive one hour per day. How these services are delivered varies from district to district.

Many students with IEPs or even 504 plans struggle to learn remotely. This is especially true for students with ADHD and executive functioning deficits. But no matter what disability they have, when the students are unable to find, complete, or submit assignments electronically, they are not effectively accessing the curriculum. If the schools are not then finding ways that enable these students to learn the material and complete the work, then the schools are depriving these students of FAPE.

You do not have to give up your child’s rights just because a school is operating remotely. This is also true of timelines, which must still be adhered to. Districts cannot use the pandemic as a reason to not fulfill your student’s IEP or deliver services. If you are uneasy about a remote learning plan or modified IEP offered by the district, consult us prior to signing.

It’s September–Now What?

Probate

One of the very unfortunate realities of COVID is that people are dying unexpectedly, either with or without a will. The question then falls to the loved ones as to whether they have to probate the estate or not, and secondarily, what kind of probate they need. A third question is whether they need to hire an attorney.

The short answer to the first question is, usually. Most estates have assets that require probate administration. Some decedents may have created trusts prior to death and retitled ALL of their assets to flow through the trust, thus negating the need for probate administration. But more often, estates have some assets that fall “outside” of the trust, and those, if they don’t go to a beneficiary automatically by operation of law, must be probated.

They type of probate depends on the size and contents of the estate. In Massachusetts, for estates with no real estate and less than $25,000 worth of assets (excluding one car), a voluntary administration is the easiest and least expensive way to go. It can be filed 30 days after death. In New Hampshire, the simplest process is called a Waiver of Administration. An estate can qualify for this when the executor is the sole heir of the estate.

Most estates, however, will have to go through a more complex probate administration. Massachusetts has two options: informal and formal. An informal probate does not require a final decree from the probate court and is a quicker process. For estates with more complex factors, such a missing will, heir, or death certificate, for example, a formal probate will be required. New Hampshire has only one other option: regular administration.

Whether to consult or hire an attorney is up to the loved ones who are doing the probate. All forms are online and can be completed by either the attorney or the person petitioning to be the personal representative (Massachusetts) or executor (New Hampshire). Some forms have accompanying instructions to help the PR and executor, but knowing which forms to file and when can be a little more challenging. And in light of COVID, courts are now accepting them only by mail or online, but the online process can be difficult to navigate. If you have any questions about probate, contact us.

Back to School??

As districts wrestle with whether to open fully in person, fully remote, or a combination (called “hybrid”), many parents are struggling with which option to choose (for those that have a choice). This is even more agonizing for parents of children with special or high needs. One question that has arisen frequently and recently is whether a student who chooses fully remote can still receive special education and related services in person. The answer is yes. In fact, Massachusetts is highly recommending that services be delivered in person whenever feasible, and especially so for those students with the highest needs. (New Hampshire has yet to issue guidance on this.) If parents do not feel comfortable bringing their child to school, they can work with their school to find a different location. The Commonwealth is basically asking both districts and parents to be reasonable and flexible about the delivery of services but has made it clear that the IEP is still to be followed, no matter what the school year looks like. Any IEP that expired during COVID is still to be followed until the team meets to update it.

The Commonwealth has also issued guidance on evaluations, meetings, and compensatory services. You can find more at http://www.doe.mass.edu/covid19/sped.html.

Know a Teacher?

As is understandable, many teachers are having anxiety about returning to the classroom. And as a school committee member, I have the utmost respect and appreciation for some of our hardest working professionals. If you are or know a teacher who is in need of a will, through the month of September, I am offering both a discount and expedited service to help ensure their peace of mind during this time. Contact us now for a consultation.

School’s Out for Summer–But What About ESY?

By now, everyone is past quarantine fatigue and wondering when life can return to some kind of normalcy. For those students with extended year services (ESY), that return could be sooner than anticipated. On Sunday, the Massachusetts Department of Elementary and Secondary Education (DESE) issued its guidelines for ESY. Among them is one that schools should use their “best efforts” to provide as many in-person special education services as they can to the students who need it the most. (That group includes those who with substantial disabilities who have experienced substantial regression, those receiving multiple services, and students who need more support to successfully re-enter in the fall.) Social distancing and sanitizing protocols should remain in place in the classrooms, including the wearing of masks, and groups may not be larger than 10 students and two staff members. And services can be provided at home if it is more practical.

In New Hampshire, the governor issued an emergency order on May 26 that directs all school districts to hold an IEP meeting by the end of this month for each child, for the purposes of discussing ESY services, to be provided either in-person or remotely. This applies to all children on IEPs, regardless of whether they currently receive ESY services. That order also requires districts to hold IEP meetings within the first 30 days of the 2020-21 school year to consider whether the student should receive compensatory services for any services not provided during the school closures.

The direction from both states is very encouraging and shows the value they place on providing services to the students who need it most. More important, it also does not exempt districts from using COVID-19 as a reason to not provide necessary services.

Help Your Loved Ones By Planning Now

By now, it is almost certain that each of us has heard of someone we know who has been afflicted with COVID-19. While for the majority of people, it is not fatal, unfortunately that is not always the case for the most vulnerable among us: our elderly and immunocompromised. Just this week alone, I have received two calls from people whose loved ones died unexpectedly—without a will. The effect of this on the family is great: not only do they have to deal with grieving during this time, but they also now have to open the probate process, something that could have been avoided if the decedent had planned ahead of time.

In one of the cases, the decedent was only 52; he was a front-line, essential worker. He owned real estate and had a wife, three children, and two step-children. He is someone who most definitely should have had an estate plan—and at the very least, a will. Now his loved ones are forced to probate the house and assets to assume control of what could have passed easily and seamlessly to them with some advance planning. Not only will probate in this situation be lengthy, but it will also be costly, much more than the cost would have been to execute a will. But more important than cost, it is an extra headache that the grieving family does not need right now.

If you know of anyone who is on the front lines in the COVID battle, please pass this information along to him or her as something to consider—for the benefit of their families. We encourage anyone who does not have an estate plan to consult a competent estate planning attorney ASAP. It is also a good time to review your own estate plan, to make sure that everything still goes where you want it to. As a service to you, Holly Lynch Law will review any estate plan at no charge from now until June 1.

Stay safe and healthy.

My child has been suspended–now what?

If you have children, hopefully this newsletter never applies to you. But recently, there has been a uptick in the number of vaping-related offenses occurring in schools, oftentimes requiring legal representation. If your child is suspended, it is helpful to know the law as to what the school can and cannot do and what rights you have as a parent. And you have additional rights if your child has a disability.

Short-term suspensions are those up to 10 days in length and are typically decided by the school principal or other building administrator. If the suspension exceeds 10 days, however, or if the school district decides to extend the short-term suspension into a long-term suspension, the family must receive 1) oral and written notice of the offense, charges, and evidence to support the consequence; 2) an opportunity for a hearing; and 3) the right to participate in the hearing with representation. These hearing decisions must be conveyed in writing to the family and include a right to appeal.

If your child has a disability and the school is recommending a long-term suspension, within 10 days, the school must first hold a manifestation determination review (MDR) to determine if the conduct causing the offense is a result of the student’s disability. If it is, then the student cannot be suspended, although in certain serious infractions, the school can require the student to attend an alternative school for up to 45 days.

I recently represented a student whose school district imposed a long-term suspension, without affording her any due process rights. By the time the family contacted me, the student had already missed 22 days of school. While we were able to overturn the suspension, the damage to that point had been done. Had the parents known of their right to a hearing before the 11th day, their daughter would not have missed so much school and fallen behind in her classes.

What are your rights if your child is struggling in school?

If you suspect that your child may have a learning disability, you have the right to ask the school to evaluate your child. Under federal law, the school must complete all requested evaluations within 60 days of the parents providing consent to evaluate. (In Massachusetts, that number is 45 days.) Assessments shall include all areas related to the suspected disability. In addition to the general intelligence and academic assessments, these areas can include (but are not limited to) social emotional status, motor abilities, health, vision, hearing, and assistive technology.

Once the assessments are complete, the school must hold a “Team Meeting” to review the data. This team consists of the parents, at least one regular education teacher, at least one special education teacher, a representative of the school district who is qualified to provide or supervise the provision of specially designed instruction to meet the child’s needs, someone who can properly interpret the evaluation data, other individuals as requested by the parents or district who have special knowledge of the child, and, if appropriate, the child. If the team determines that the child requires special education services, it will propose an Individualized Education Program (IEP).

Another option for parents is to have a private evaluation done, paid for by the parents. An especially useful assessment is the neuropsychological evaluation. This is a comprehensive evaluation measuring the student’s learning profile, processing speed, working memory, IQ, attention, problem solving, spatial awareness, and language, among other areas. (Some insurance companies will pay for this evaluation.) If the parents choose this option, they can choose whether they wish to share the results with the school. If they choose to share the results, the school must hold a Team Meeting within 10 days of receiving the results.

You are your child’s best advocate. If you suspect he or she may have an academic or social/emotional deficit affecting his or her ability to make effective progress, then you have the right to an evaluation each year.

Mom Was Right

Don’t Put Off Until Tomorrow What You Can Do Today
Was your mother like mine, always using phrases like that to emphasize her points? Well, in this case, she is right. I’d like to share a true story that just happened regarding a client of mine.

As an estate planner, I frequently receive calls when a person is terminally ill and needs to get an estate plan done quickly. I have notarized wills and powers of attorney in hospital rooms, rehabilitation centers, and in hospice settings. Those are the lucky ones because we were able to execute them. Last month, however, I met with someone who had health problems, but she still thought she had ample time to do a will and power of attorney. After I completed the drafts, but before she signed them, she passed away, unfortunately–much more quickly than she or her spouse had anticipated. The legal effect of the unsigned drafts? None–it is as if she had done nothing at all, and her wishes for her estate are just that, unfortunately.

Make Mom proud and don’t put off making yours.

To See or Not to See

In March, I attended the national conference for special education attorneys and advocates and was overwhelmed with the amount of information presented there. For an attorney practicing special education law, it was like Christmas morning as I attended each workshop, eager to unwrap new practice tips and little known laws. And for the more well-known laws, it was great to take a deeper dive into them and learn creative ways to make them work for the client.

One of the workshops I attended dealt with classroom observations. This can be such a helpful tool for parents who are unsure if their child’s placement is appropriate. While there is no federal right to observe (sorry my New Hampshire friends, but keep reading, as you are not totally out of luck!), in Massachusetts, schools must allow parents or their designees to observe the child in his her current or proposed program. This right extends to both academic and non-academic components. The visit should be of sufficient duration and extent to allow the parents to evaluate whether the child can make effective progress.

Although there is no federal right to an observation, the Supreme Court ruled that collaboration is an important part of the federal law on disabilities. Thus, in order for parents to have meaningful participation (as required by law), they need to be able to observe. The school cannot deny an observation request on privacy concerns as the law relating to protection of educational records does not apply to observations. Parents can–and should–request an observation as part of an independent evaluation. 

It is a good idea to have an educational consultant or other expert conduct the observation. He or she will know exactly what to look for and what to ask (always interview the staff!). And should you end up in a legal dispute at some point, the expert’s observation will hold more weight than a parent’s.

But for now, it’s too early to think about school–enjoy your summer!

Advice from former student-athletes

Last month, I was honored to be invited back to my alma mater (Boston University) to speak with current student-athletes about the characteristics and skills that helped me as a former student-athlete in my professional life. While I enjoyed sharing what I could with the athletes sitting at my table, I enjoyed even more hearing from the other alumni in the room their “one piece of advice” they had for the college juniors embarking on job searches.

Some of the suggestions were typical: network as much as possible, be careful with social media, take advantage of LinkedIn. But quite a bit of the advice could apply to all of us, in any area of our lives, so I thought I would share some of the best tips here. 

  1. Be open to new possibilities, including those you never thought about. 
  2. Treat your colleagues like teammates.
  3. Be flexible: sometimes opportunities exist where you never thought you’d find them.
  4. Volunteer doing something you enjoy.
  5. Love what you do or do something else.

I can find truth in all of these. I graduated college at 21, full of hope that I would be the next Hannah Storm. Four years and dozens of audition videos later, I accepted the fact that it was not to be and thought about other career choices, including coaching college softball. It was only through answering an ad to be an adjunct writing professor that I fell into law and subsequently fell in love with the study and practice of it. And now–during the spring–I feel like I spend more time in my volunteer capacity as girls softball commissioner and coach than I do in my full-time practice!

Oh, and I should tell you what I said: Look for opportunities to send thank you notes. And on that “note,” thank YOU for being a current or former client, referring someone to me, recommending my services, giving me advice, or just being a good teammate and friendly voice.