Myths
MYTHS ABOUT DIVORCE IN MASSACHUSETTSThe following list discusses some of the most common myths and misconceptions about divorce in Massachusetts. The information provided in these Divorce Myths is very general information and is not intended to be specific legal advice. If you have a question about a specific legal issue, you should contact Attorney Deirdre O'Brien for assistance.
Myth #1: Litigation is the only way to resolve domestic relations law disputes.
Litigation is not the only way. There are two non-adversarial interest-based alternatives to litigation, including: negotiating a no fault divorce agreement and mediation. While each alternative is not always appropriate in each unique situation, many situations do present one or more alternatives for the client and the attorney to jointly consider.
Myth #2: One lawyer can represent both parties in a Petition for Divorce.
This belief is completely false. A lawyer may not represent both spouses in a divorce. The lawyer may never appear as counsel of record for both parties in the proceeding. Under certain circumstances, a lawyer may represent one party to the dissolution and prepare the marital Separation Agreement.
Myth #3: The only grounds for divorce are fault grounds.
In Massachusetts, there are "no fault" grounds that entitle a spouse to a divorce, whether or not traditional fault grounds exist.
Myth #4: All property is split equally in a divorce.
The notion that all property owned by either spouse is divided equally between the parties is inaccurate. First, all property owned by either or owned jointly is identified. If one spouse is able to show that some specific property is his/her own separate property (i.e. by gift or inheritance), then that spouse may be allowed to retain all or a larger portion of said property. On the other hand, property categorized as marital property is divided equally between the parties unless the court determines that an equal division would be inequitable. Therefore, if it is determined that an equal division of marital property is inequitable, the court may divide the marital property between the spouses so as to effectuate an equitable (but not necessarily equal) result.
Myth #5: The court always follows the statutory formula for computing spousal support (alimony) similar to that of child support.
Just because the court has a statutory formula to calculate child support does not mean that such a formula exists for calculating spousal support. Our state's legislature has just implemented a spousal support formula (to ensure greater consistency and predictability in spousal support awards). The courts have less discretion to determine the amount and duration of spousal support awards on a case by case basis, after taking into consideration the statutory factors currently in place. Those statutory factors include: the need and the ability to pay of each party; the relative earning abilities of the parties; the ages and health of the parties; the duration of the marriage; whether either party should stay home to care for minor children; the standard of living established during the marriage; the assets and liabilities of each party; the time or expense necessary for a spouse to obtain appropriate education or training; the tax consequences of a support award; and any other factors the court finds relevant.
Myth #6: If there is shared parenting, then there is no child support.
The designation "shared parenting" refers to sharing both parenting time with, and decision making for, the children. Whether or not there is shared parenting, child support is still calculated pursuant to statute. In the event that the child support obligor enjoys extraordinary parenting time with the children pursuant to the Shared Parenting Plan, then the court may consider deviating from the statutory calculation on that basis. However, there is no automatic reduction or elimination of the child support obligation merely because the parties agree to shared parenting. The court looks at the income of each spouse to ensure the children enjoy a similar standard of living in both homes.
Myth #7: The court's standard parenting time (visitation) schedule is the only acceptable schedule.
The court's standard parenting time schedule is just a guideline. The court may, and frequently does, deviate from those guidelines based on a number of statutory factors. Additionally, the parties have the ability to create their own parenting time schedule.
Myth #8: A pension is not property that can be divided.
When preparing for divorce, many people incorrectly assume that pensions cannot be either valued or divided. Virtually every pension (or other retirement plan interest, stock option, etc.) can be valued and the marital component of the pension can be divided equally as marital property. Massachusetts law concerning pensions and other similar assets is complex and may require that you seek the advice of an experienced legal professional.
Myth #9: A prenuptial (antenuptial) agreement is absolutely binding no matter the circumstances.
A prenuptial agreement is a contract that sets forth the parties rights and obligations in the event of divorce and/or the death of either party. As with all contracts, the law provides requirements for its enforceability, including, without limitation: it must be in writing; there must be full disclosure; and it must be executed without duress or overreaching. Due to these requirements and limitations, a party seeking to enforce or nullify a prenuptial agreement should consult with an attorney. Finally, to avoid potential pitfalls, parties wishing to enter into a prenuptial agreement should consult with their attorneys well in advance (several months) of their planned nuptials.
Myth #10: If you move to Massachusetts, then your domestic relations case automatically moves with you.
Many people associate residency with jurisdiction. It may be logical to associate the two, but jurisdictional issues can be much more complex than just looking at one's residency. Determining what state has jurisdiction may involve a variety of factual issues, and often depends on the specific issue involved (e.g., custody, child support).
Myth #11: A party is powerless to enforce a court order.
A party who wishes to enforce a domestic relations court's judgment or order can bring a contempt to enforce the court's order. If the other party is found by the court to be in contempt, a reasonable amount of attorney fees may also be awarded to the enforcing party.
Myth #12: All attorneys are alike.
Many people say that all attorneys are alike. This notion could not be farther from the truth, especially when it comes to choosing a family law attorney. There are as many different philosophies and approaches to legal cases as there are attorneys. It is extremely important to take the time to carefully select an attorney who has the qualifications, philosophy and approach with which you will feel comfortable, and who will provide you with the alternatives you desire.
General Practice Myths
MYTHS ABOUT PERSONAL INJURY
Some common myths about personal injury cases can lead injury victims to believe they are not entitled to compensation—or that they are entitled to less than they really deserve. A number of these myths are dispelled below by the knowledgeable Attorney O'Brien.
Myth #1: I have an indefinite amount of time in which to bring forth my personal injury case.
The truth is, there is a statute of limitations for every type of injury in the state. If you bring your case to Attorney O'Brien after expiration of the specified time period, there may be little we can do to pursue your claim. When in doubt, always seek legal guidance for the harm caused to you as soon as possible.
Myth #2: All personal injury cases involve lengthy and stressful trials.
Not necessarily. Many cases can be settled out of court, but it depends on a number of factors. For instance, are you expecting to be awarded punitive damages? Such financial recovery can only be awarded by a jury. On the other hand, out-of-court injury settlements can often be worked out to provide reimbursement for medical costs, lost wages, and pain and suffering. A major factor in the handling of your case is the question of how open the defendants are to negotiating, and how skilled your personal injury law firm is in seeking the appropriate settlement.
Myth #3: I should just take the first offer made by my insurance company, or the insurance company of the defendant.
This is one of the biggest and most dangerous myths Attorney O'Brien encounters. The first offers made by insurance companies are rarely their last—or their best—offer. Whenever possible, speak to an attorney before accepting any settlement from defendants or their representatives.
Myth #4: Punitive damages Make it Too Expensive for Companies to do Business and Cost Consumers Money
In a sense, this one is true. Punitive damages do make it more expensive for companies to do business - but for different reasons than you might think. The reason punitive damages make it more expensive for companies to do business is because they make it dangerous for a corporation to disregard consumer safety.
Corporations make business decisions based primarily on profitability, and major corporations have repeatedly proven themselves willing to take risks with the lives of a few customers here and there if it means increased profit. They're less willing to take risks with their own money, and because of punitive damages, companies tend to make decisions more in line with the public interest. Some decisions might cost these corporations money, but that money is spent making safer products.
A dramatic example of this kind of corporate thinking came in the early 1970s when Ford Motor Company discovered that the Ford Pinto was designed in such a way that the fuel tank was susceptible to leakage and catching fire in low-speed, low-impact collisions. Evidence emerged that Ford had conducted a cost-benefit analysis in which it determined that it would be cheaper to pay damages for the projected burn deaths the design defect would cause than it would be to recall and repair the cars.
So Ford decided not to correct the problem, and people burned to death in relatively minor Pinto collisions-or were horribly burned and did not die. Without the intervention of personal injury attorneys who represented early victims of these accidents, Ford might have waited much longer to recall the cars, or never have recalled them, and many more deaths and injuries might have occurred.
Punitive damages in litigation against Ford at that time were intended to make certain that it was not profitable for Ford to have engaged in that kind of thinking, and to discourage Ford and other companies from expecting to profit from that kind of decision-making in the future.
Punitive damage limitations have largely removed the possibility, in many states, of punitive damage awards significantly impacting a company's cost of doing business. Unfortunately, that change has resulted in a new ability on the part of those companies to comfortably disregard consumer safety.
Myth #5: Punitive Damages Give Personal Injury Plaintiffs an Undeserved Windfall
Another common objection to punitive damage awards is that the plaintiff in the personal injury case doesn't "deserve" all that money. The purpose of punitive damages is to discourage the wrongdoer - not to provide the personal injury plaintiff with a windfall.
If the occasional personal injury victim did get more than he deserved in the effort to discourage corporations from playing fast and loose with consumer safety, it would probably be a small price to pay - but such windfalls are rare.
Many states have enacted provisions whereby a portion of any punitive damage award is paid over to the state or to some kind of victim's fund. Additionally, many states have capped punitive damage awards either at a fixed dollar amount or in some sort of proportion to actual damages.
Myth #6: Only People Who Want More than Their Fair Share File Personal Injury Cases
In a perfect world where every business and insurance company honored its commitments and obligations, this myth might hold true - but that's rarely the case. The vast majority of personal injury cases involve insurance companies, and insurance companies make their money by collecting premiums and then not paying out claims.
Insurance company representatives are trained to encourage personal injury victims to accept less than they're entitled to. Some insurance companies even interfere with medical treatment by refusing to authorize procedures or delaying payment.
Hiring a personal injury lawyer is often the only way a personal injury victim can get his legitimate expenses covered by the person or company responsible for his injuries. Insurance companies are well aware of this, and so train their representatives to make every effort to discourage injury victims from retaining personal injury lawyers.
Personal injury victims who work with personal injury lawyers may be more likely to receive larger personal injury settlements. It's not because those personal injury lawyers are "holding up" the insurance companies; it's because victims who aren't represented by personal injury lawyers often get cheated.
Myth #7 - The Insurance Company Will Treat You Fairly
The primary goal of insurance companies is to make money. They do this by minimizing the amount of money they must pay in claim compensation to victims and policyholders. Fairness is not a factor in their decision-making processes.
The insurance company will look for any reason to give you the least amount of money possible for your claim, which is why having legal representation can greatly increase the chance of a fair settlement. You may be entitled to compensation for medical bills, lost wages, and various other factors from one or more sources. A Louisiana personal injury lawyer will help make sure that you receive the money that you are due.
Myth #8 - You Must Appear In Court to Receive Compensation
Personal injury lawsuits seldom see the inside of a courtroom. Insurance companies often prefer to settle these cases out of court. That's because insurance companies like to avoid:
• increased legal costs
• the allocation of additional manpower resources toward a single claim
• possible negative media publicity generated by a trial
• the risk of a monumental judgment issued by a jury
• a legal verdict which could alter the way they conduct business
Myth #9 - It Takes Forever To Get Compensated in a Personal Injury Case
In fact, most personal injury claims are settled within 1 year's time. Only cases which involve complex liability or extremely serious injuries tend to take longer. But a competent Louisiana personal injury attorney knows how to speed up the process and ensure that you receive compensation as quickly as possible.
Myth #10 - Personal Injury Compensation is "Easy Money"
You will not receive a lottery jackpot-like windfall for most personal injury claims. But you will be compensated for costs that you incurred or will incur as a result of your injuries. These costs may include:
• emergency room visits
• ambulance charges
• hospitalization costs
• follow-up medical appointments and long-term treatment (if needed)
• lost wages from work missed
• physical therapy sessions
• damages related to pain and suffering or mental anguish
Myth #11 - The Law is Biased Toward Big Business and Large Companies
The legal system does not favor corporate interests over those of the individual. In the eyes of the law, any entity which is wronged is subject to relief – be it a single individual or a worldwide conglomerate. However, it does help to have someone on your side who is thoroughly familiar with the legal system. This is why you should consider hiring the services of a Louisiana personal injury attorney.
Myth #12: You Can File Whenever You Want
In fact, the length of time that you have to file a claim is tied to the statute of limitations, which places a time limit on any given injury claim. Although this time may be extended, there aren't exceptions to the statute of limitations. After the time expires, an injured person can't file anymore.
Myth #13: You Can File Multiple Times for a Single Injury
In some cases, a person may not receive as much compensation as they feel that they need for their injuries. However, once a case closes, it's considered finalized. A person can't go back and file again. This is why finding the right legal representation is so important the first time.
Myth #14: You Can File for Injuries that Are Not Directly Attributed to Negligence
Actually, the defendant can't be sued for things they cannot be expected to reasonably prevent or control. For instance, in the case of car accidents, a municipal government can't be sued if a motorist hits a deer as long as there is a deer crossing warning in the particularly high-traffic areas.
MYTHS ABOUT ESTATE PLANNING
Myth #1: Estate planning is just for the wealthy.
This myth comes from the focus of so many attorneys and financial advisers on the estate tax, which may not be an issue this year until your estate surpasses $5,120,000, an amount that most of us would characterize as pretty well-off, if not downright rich. This focus makes sense for estate planning professionals since they make so much more money dealing with that issue, but estate planning is about so much more than that. It's also about making sure that your finances are taken care of if you're incapacitated, that decisions about your health care are carried out the way you'd like even if you're not able to make them, and that your children and other heirs are taken care of when that time eventually comes. That's why estate planning isn't just for the Donald Trumps of the world. Estate planning is for anyone who may become seriously ill or pass away. In other words, it's for everyone.
Myth #2: I'm too young for estate planning.
We never know when we might need estate planning and by then, it will be too late. For example, history is replete with the stories of celebrities who unfortunately died before creating a will, many of them at a relatively young age.
The estate tax: complexity needn't be that complicated
Myth #3: If I pass away without a will, the state will get my assets.
If the last two myths can lead so many to inaction, it always amazes me that this myth hasn't led to a boom in the will-making business. If you pass away without a will, each state will apply its "laws of intestacy" to determine who will get what. You can check out a site called mystatewill.com to see what that outcome may look like. If you don't like it, get a will drafted. If you're fine with it and have minor children, get a will anyway. That's because the will also allows you to determine who would be the guardian of your children if that need should arise, which is probably not a decision you want a court to make.
Myth #4: If I have a will, I don't have to worry about probate.
This may be wishful thinking as probate can be a long and expensive process in which one or more courts decide who will inherit your assets. While a will provides the court with guidance on your wishes, it doesn't actually avoid the process altogether. Since a will is public information, it can be easily contested in court, adding more time and cost. In addition, if you have real estate in more than one state, each property may have to go through probate in its respective state.
Myth #5: I don't need a lawyer at all.
While these documents may cover most common situations, there may be a complicating issue warranting legal advice that you're not even aware of. That's why it's still a good idea to at least run these documents by a qualified estate planning attorney, which may cost you less than having the attorney draft them all from scratch. You can search for an attorney by asking for referrals from family, friends, and other professionals, by using the lawyer referral service of your local bar association, or by searching the membership of organizations like the American Academy of Estate Planning Attorneys and the National Network of Estate Planning Attorneys. Finally, don't forget to ask your employer about any discounted legal services they may offer.
Myth #6: To avoid probate, you have to draft a trust.
One area that you're most likely to need an attorney is drafting a trust. Avoiding probate is one of the most common reasons people do this, but there may be cheaper and easier methods that may be sufficient for your needs. First, jointly owned property (like what you own with your spouse) generally passes to the other owner(s) without going through probate (unless it's a "tenancy in common"). Second, life insurance, annuities, and anything in a retirement plan like a 401(k) and IRA avoids probate as long as there is at least one living beneficiary listed. Some states also allow you to avoid probate by adding beneficiaries to bank accounts with a "payable on death" registration and to brokerage accounts, real estate, and even vehicles with "transfer on death" registrations. You can see what's available in your state here. Finally, each state has methods to speed up or even skip probate for "small estates," which in some states can be quite large.
Myth #7: Trusts avoid estate tax.
Most trusts do not help you avoid estate taxes in and of themselves. However, if you're worried about having a taxable estate, be sure to seek qualified legal advice (your nephew who just graduated from law school with a focus on criminal law doesn't count) since certain trusts can be used as part of a strategy to reduce and even eliminate estate tax liability.
Myth #8: I don't have enough money to worry about the estate tax.
This may be true today, but if nothing changes, estates over $1 million are scheduled to be subject to a 55% estate tax starting next year. When you add in the value of your home, life insurance proceeds, and your retirement accounts, that $1 million may start looking a little too close for comfort.
Myth #9: I'll have to pay a gift tax if I give someone over $13k per year.
Anything (except for money paid directly to a medical or educational institution, charity, or to a 529 plan) over $13k that you give someone (other than your spouse) in a single year simply reduces your lifetime gift and estate tax exclusion amount (currently the $5,120,000 that's falling to $1 million next year). Only after you use up the entire exclusion amount do you actually have to start paying anything. In other words, you'd have to give away quite a bit. That being said, you would still have to file a gift tax return and then keep track of how much you've reduced your lifetime exclusion amount by, so try to stay within the $13k annual exclusion amount just to avoid that hassle.
Myth #10: I am too young to worry about estate planning.
Anyone in their 40s, 30s or even 20s is not too young to consider estate planning. Generally people in these age groups are planning for their future. Even if you do not have a "large" estate, there are many reasons to complete an estate plan aside from saving taxes. If you have children, at a minimum, a Will is essential. Without a Will, the State of Washington will select a guardian for your children, and that person may not be your choice. Additionally, without a Will, the State of Washington will decide who gets your property and in what manner. Finally, dying without a Will - and death can come before we expect it - ensures that your property will be subjected to the expense and delay of probate.
Myth #11: My estate is too small to worry about estate planning.
Estate planning is important for everyone. Good planning, no matter how large or small your estate, will allow you to control who receives your estate, in what manner and when. Good planning also provides instructions for your care and that of your loved ones in the event of your mental disability. It allows you to leave explicit instructions for the care of your loved ones and create protective trusts for your young, disadvantaged, or adult children, and grandchildren. Good planning also allows you to control all your property, including retirement plans and life insurance. Conversely, designating your beneficiaries on a standard form "beneficiary designation" often means losing control of a major part of your estate. It does not enable you to leave instructions or provide guidance to your loved ones. With good planning you can be assured that your estate is ready for the future.
Myth #12: I have a Will; that should cover everything.
Wills are the most common estate planning tool used. However, there are pitfalls to relying exclusively on a Will as your estate plan. Wills are fully public and open to inspection by anyone who wants to know about your Will and affairs. Wills offer no planning or direction for you or your family in the event of your mental disability, only on your death. Wills guarantee probate, which can generate personal repersentative and attorney fees and cause much time delay before your loved ones can receive their inheritance. Wills generally cannot control their maker's life insurance proceeds, retirement benefits, or jointly-owned property. Finally, Wills are often bare-bones form documents written in hard to understand language. They do not capture the hopes, fears, dreams, values, and ambitions of their makers.
There are many other reasons for preparing an estate plan. These include providing disability planning for you, creditor protection for your loved ones, remarriage protection, and catastrophic illness protection, to name a few.
Myth #13: I have taken care of everything with a living trust.
A properly created and funded living trust will allow you to avoid probate, provide disability planning and save money for your heirs. However, although most living trusts appear to be better than Wills, they are about the same as Wills if not "fully funded" because they do not avoid probate. Funding the trust means retitling of the assets and transferring them into the trust. In addition, most living trusts are sterile legal forms that do not contain instructions for loved ones. They only accomplish limited objectives.
If you have a medium or larger estate, a living trust alone will not protect you from the estate taxes that are due on the estate value above the threshold limits. You will need to use some other planning tools to reduce the value of your estate and minimize the taxes due.
Even if you have a living trust, you still need to have a Will. One thing you cannot do with a living trust is to provide a guardian for any minor children you may have at your death. If you do not have a Will providing for a guardian, the State will determine your children's guardian. Additionally, without a Will, any assets that were acquired and not added to the trust will pass to your heirs through probate according to the State's rules, and may not go to whom you desire.
The final elements that may be overlooked, if you think your estate plan is complete with just a living trust, are durable powers of attorney for finances and health care. These documents create a plan for your future when you may no longer be able to manage your finances or make decisions regarding your health or personal care due to mental incapacity. With these documents, you identify a trusted person to act on your behalf and in your best interests to make financial and health care decisions for you.
Establishing durable powers of attorney and advance health care directives while you are in good mental and physical health will allow you to avoid the prospects of a court-supervised and expensive conservatorship.
Myth #14: I have done an estate plan. I don't need to do anything more.
We know an estate plan works when every expectation that the client had in mind when they began planning is completely met. Unfortunately, most traditional estate plans just don't work! We believe it is because many clients and professional advisors see estate planning as a transaction. They say, "I did my estate plan." In reality, estate planning is a process, not a transaction.
Have you had any changes in your personal, family, or financial situation? Have there been changes in the tax law or non-tax laws that impact your estate plan? Have your advisors improved their knowledge through ongoing education and collected experience? Since everything constantly changes, you cannot expect a plan to accomplish what it was intended to accomplish if it is never updated. The costs of failing to update are typically far greater than the costs of keeping your plan current.
Myth #15: I don't have anyone to leave my estate to. Why should I be concerned with estate planning?
If you want to receive a posthumous "thank you" from the State for your generous gift, then stop right here and plan no further. That's right, if you do not have any heirs, and you do nothing, your entire estate will go to the State.
As an alternative, you may want to consider leaving your estate to a charity. Good planning of charitable gifts can be rewarding during your life, and can provide an ongoing gift after you are gone.
MYTHS ABOUT REAL ESTATE TRANSACTIONS
Myth #1: My (Realtor, mortgage broker, title company, friend, long lost relative, etc.) told me that I don't need a real estate lawyer.
True. Massachusetts's law does not require real estate attorneys to be involved in most real estate transactions. However, a real estate transaction is based on a legally binding contract involving a complex area of law. Only an attorney licensed to practice in MA is qualified to give you legal advice on purchasing or selling real estate in MA. Real estate agents, mortgage brokers, title companies, friends, long lost relatives, or even a lawyer from New Jersey or New York (if not licensed to practice law in MA) are strictly prohibited from giving you legal advice of any kind in MA. To give unlicensed legal advice in MA constitutes the commission of a 3d degree felony. Remember, possibly hundreds of thousands of dollars, or even millions of your hard earned money is at stake in a real estate transaction. So why wouldn't you hire a qualified MA lawyer to protect your interest?
Myth #2: Real estate lawyers only complicate things and make real estate transactions more expensive.
Qualified MA real estate lawyers are trained to provide you with the legal advice and strategies you need to have a successful real estate closing. In a complicated transaction involving many professionals with different goals of their own, real estate attorneys bring guidance and leadership to the table to keep transactions as smooth as possible. With so many professionals involved, it is common for miscommunication to derail a transaction or set it back. Real estate lawyers keep their clients informed of all developments in the transaction and keep everyone involved on the same page, and resolve the issues that would prevent the contract from closing. This, in turn, keeps the transaction on track, saving you the time and expense of litigating over miscommunications or other issues. As mentioned elsewhere "penny wise is often pound foolish"
Myth #3: The title company has attorneys, and I'm buying the title insurance, so I don't need to hire my own real estate lawyer.
Attorneys working for a title company represent the title company, NOT YOU. Attorneys must represent the interest of their client to the detriment of all others. If you think a title company is representing you as your attorney, ask to see the written attorney-client agreement.
Myth #4: I'm not required to have title insurance.
Maybe. If you purchase real property without a loan from a conventional lender, you do not have to buy title insurance. However, to do so exposes you to terrible financial risk of loss. If at a later time a defect is discovered in your title you risk the loss of your entire investment without any recourse.
Myth #5: My real estate agent works for me and will give me all the advice I need.
Real estate agents broker real estate. They are utterly unqualified to give legal advice unless the are dual licensed as a MA attorney; in fact, it is a 3d degree felony to give legal advice in MA unless the person giving that advice is an attorney. Consider this: to practice law in MA, one must complete 3 years of law school, pass stringent MA Bar requirements and complete 30 hours of continuing legal education every 3 years. Do your research; ask your other real estate professionals what was required for them to obtain a license in their profession, then let common sense dictate who you should take legal advice from.
Myth #6: I'm just going to lease my property to a tenant, and leases are simpler than a purchase or sale contract, so I don't need a real estate lawyer.
A lease, even for residential property, is more complex than a sale and purchase transaction. Leases are a conveyance (just like a purchase and sale) plus a contract, plus a re-conveyance. The law governing leases in MA is technical and a trap for the unwary. Commercial leases are exponentially more complex.
Myth #7: I don't need to hire a real estate lawyer to deed my property to someone else.
True, but do you know the nuances of a quit claim deed as opposed to a warranty deed? How does a special warranty deed differ and when would you use it? Which one would meet your goal best? What effect would the deed have on your mortgage? How should the transferee take title? Only a qualified real estate attorney has the answers.
Myth #8 I don't need a written contract to sell my property; a hand shake is good enough for me!
The sale or conveyance of real estate falls under the statute of frauds. In order to be enforceable the contract must be in writing and signed by all parties. Only a real estate attorney is qualified to create customized contracts or clauses to suit your specific needs.
MYTHS ABOUT WILLS AND TRUSTS
Myth #1: I can put it off until after my spouse dies.
A common mistake married couples make is assuming they don't need anything in place until one of them dies. That's because in MA they hold their property in joint tenancy with right of survivorship, meaning the property and assets automatically pass to the surviving spouse. However you shouldn't wait until the first spouse dies. By then the remaining spouse might not be capable of making important decisions. Each spouse should have their own will, in case they want to make specific bequests.
Myth #2: I made my will in 1972. I don't need to do anything else.
Actually, you need a power of attorney for property and a power of attorney for health care. The big concerns those address are who is going to manage affairs for you if you become incapacitated, and who will make decisions for you.
These documents let you name those people.
And while it's true that wills and trusts don't expire, they should be revisited as the decades pass because things like tax laws change and families change.
Myth #3: I don't need a trust because I already have a will.
This myth is partly true. You might not need a trust. Not everyone does. For example, if you have less than $100,000 in property, you can transfer assets after death without probate in MA.
Here is what a trust does: It makes the transfer of assets and property such as real estate easier, allowing the beneficiaries to avoid the delays and costs of probate court. They receive their bequests sooner, and the executor is able to pay any outstanding bills from the estate's money, not their own. Probate costs in MA are not that high. There are court fees, and there is a publication requirement and attorney fees. Heirs will incur $3,000-$5,000 out of pocket because the process is difficult to get through without an attorney. It delays things about a month to six weeks.
Myth #4: I don't have many assets and I don't own a home. My children can just divide up what's left.
You still need a will, because it is amazing what people will fight over. You might be an elderly person without a home or assets, but you might have a car, or an engagement ring that belonged to your mother. Family can also argue over who is in charge of disbursement. A simple will is not expensive -- it could be less than $1,000.
Myth #5 : I can do all of this online and get the same result, without paying an attorney.
It is true, there are well-regarded websites such as LegalZoom.com that offer wills starting at $69 and trusts starting at $249.
It's not that you can't do it online, you just might not get the best result, but you might get an acceptable result. The concern Deirdre has when people draft their own documents is they don't think through what else might happen. Deirdre often sees with so-called handwritten documents (self-authored) is that people don't always provide for multiple scenarios. Attorney O'Brien will make provisions for people dying out of order, people dying together. The boilerplate wills don't always address the needs of a specific couple. Another consideration is that if you do something very simple, you might have to redo it very often. For example, if you leave $5,000 to your grandchild, then you have another grandchild, you might have to redo it, whereas an attorney can write language that will last for all grandchildren.
The information provided in these Divorce Myths is very general and there are always exceptions to every rule. Please contact Attorney O'Brien if you have a question about a specific legal issue.