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Avoid Probate by Transferring Home to Children and Reserving Life Estate

  • By Stephen Manning
  • 14 Sep, 2018

A planning technique many of our Massachusetts clients are utilizing is to transfer title of their home to their children while retaining a life estate. This means that essentially the elderly parent or parents retain the right to ownership during their lives, and the children automatically have ownership on the death of the parents without probate proceedings. The parents continue to occupy, pay the taxes, insurance and maintenance. The children receive what is called the remainder interest.

The following are advantages and disadvantages, and should be considered thoroughly before making the decision to execute a Deed with reserved life estate:

  1. There may be some disadvantages, which include the fact that if you choose to sell the home prior to your death, the children would also need to sign any Deed. A portion of the proceeds would go to the children, and a portion would go to the parents, the amount of which would depend on the age of the parents at the time of the sale. Although the parent's portion of the proceeds of sale would not be subject to capital gains tax as the house is their primary residence, the children's portion of the sale proceeds would be subject to the gains tax.
  2. Another drawback is that the parents or parent may be ineligible for Medicaid benefits to provide for long term skilled care of a parent (nursing home care) for a period of five years from date the transfer is made. It is possible to cure the transfer penalty, however, if the children deed back their interest in the house to the parents or parent.
  3. The primary advantage of the transfer of the house with a reserved life estate is that the children have title automatically after the death of the parents or parent, and not included in any probate proceeding.
  4. Another advantage is that the children would receive what is called a “step up in basis” so that the value of the home is increased to the market value at the date of the parent or parents, which is the same effect as having inherited the property. This means that any capital gain would effectively be eliminated at that point.
  5. Lastly, if a parent should ever require nursing care and does qualify for Medicaid benefits (presuming the five year disqualification period had expired), Medicaid would not be able to obtain a lien against the property for benefits paid for the benefit of the parent, commonly called “estate recovery”, as the house would not be included in any probate filing. At this time, it cannot make claims against life estates, but it may try to do so in the future.

It is important to understand that the parents do give up some control of their home, and should have discussions with their children and family members to discuss the implications of such transfers before deciding to Deed the house in this manner.

We serve clients in all counties in Western Massachusetts and on Cape Cod, including, but not limited to the Towns of Agawam, Barnstable, Chatham, Dennis, Hampden, East Longmeadow, Hyannis, Longmeadow, Ludlow, Monson, Palmer, Osterville, Springfield, Wilbraham, Worcester and Yarmouth. Our office is conveniently located at 200 North Main Street Suite 2, East Longmeadow, Massachusetts 01028. Call us today at (413) 525-1119 so we can help you with your estate planning needs.
By admin 14 Sep, 2018
  1. A Durable Power of Attorney appoints a family member or other trusted individual to act for you in the event of a disability or other incapacity that prevents you from acting for yourself. The person you appoint can attend to your financial matters, including banking and dealing with your property, both personal and real property. In most cases one should be able to avoid costly Guardianship or Conservatorship proceedings in Probate Court by having a Durable Power of Attorney.
  2. A Health Care Proxy appoints a family member or other trusted individual to act for you in the event you are unable to communicate and make healthcare decisions for yourself. A Living Will can provide valuable guidance to a health care provider that is trying to make a health care decision in your behalf. Although, a living Will is not binding in Massachusetts, the Health Care Proxy Law does, in addition to appointing an agent, one can express their desires or feelings on the subject by directing your health care agent not to employ heroic measures, and extraordinary or artificial life support if one is unconscious and there is no reasonable likelihood of recovery to meaningful life. You may also list specific kinds of treatment one may accept or reject. Both of these documents are important to provide you and your family with the necessary tools to make appropriate decisions without involving court proceedings in most cases.

The Stephen R. Manning Law Office has the experience and knowledge to help you draft a Durable Power of Attorney and Health Care Proxy that will carry out your final wishes as well as help you devise an estate plan that will protect your property. We serve clients in all counties in Western Massachusetts and on Cape Cod, including, but not limited to the Towns of Agawam, Barnstable, Chatham, Dennis, Hampden, East Longmeadow, Hyannis, Longmeadow, Ludlow, Monson, Palmer, Osterville, Springfield, Wilbraham, Worcester and Yarmouth. Our office is conveniently located at 200 North Main Street Suite 2, East Longmeadow, Massachusetts 01028. Call us today at (413) 525-1119 so we can help you with your estate planning needs.
By admin 14 Sep, 2018
As the housing market has improved, sellers have gained some of their advantage back because they no longer feel the need to accept a rock bottom price in order to sell their home within a reasonable period of time. Sellers often have several potential buyers interested in their home and, often, there are multiple offers made on a home. This gives the seller a huge advantage because buyers are competing against each other and the sales price goes up.

However, if you are shopping for a home, there are ways that you can negotiate a better sales price rather than accepting whatever the listing price is for your dream home. Even though the housing market has improved, sellers are still motivated to sell homes quickly. These are the sellers that you will be able to negotiate with in order to lower the sales price for the home that you want.

Tips for Negotiating the Price You Want to Pay for a Home

  • Offer the value of the home not the listing price.  Your real estate agent can access the recent sales in the neighborhood to prepare a market analysis that will support your offer. If the home is priced above market value and has been on the market for a while, you will have more negotiating power, especially if you have a market analysis to back up your offer.
  • Move quickly.  If you see a home you want, make your offer as quickly as possible, especially if the market in your area is competitive. Also, make your first offer your best offer. By knowing what you are willing to pay for the home, you can get an offer in before anyone else and the seller may accept your offer if he wants to move the property quickly.
  • Research your seller.  The more you know about your seller the more power you will have when negotiating the sales price. For example, does the seller already have a new home and he needs to sell this home quickly or does he not have anywhere to go yet and would rather the sales process drag out a bit. Ask questions of the seller and the listing agent to learn as much as possible to plan the best strategy for getting your home for the price you want.
  • Use public records to your advantage.  If the seller or listing agent is not forthcoming with information, use public records to check for divorces and foreclosures. You may be able to determine if the house was previously on the market and, if so, what the listing price was during the previous listing.
  • Try to avoid contingencies.  The terms of the offer can be as important as the sales price that you offer. If you include a long list of contingencies (i.e. inspections, repairs, etc.), the seller may view you as a problem and pass up on your offer.
  • Make your offer personal.  Consider writing a short letter to include with your offer to purchase and include a picture of your family. Tell the seller a few specific things that you really like about the home and how you can see your family enjoying the home as much as the seller did.
  • Be willing to compromise.  As part of the negotiating process, you must be willing to compromise. Consider the difference that increasing your offer will make on your monthly mortgage obligation. If adding $5,000 to the offer will only increase your monthly mortgage payment by $20, it may be worth the extra $20 per month to have your dream home.

Contact Stephen R. Manning Law Office for more information about our affordable real estate services

When you are searching for a real estate attorney to handle your commercial or residential real estate transaction, you want an attorney with experience in real estate transactions and knowledge of Massachusetts property laws to give you reliable real estate advice.
The Stephen R. Manning Law Office strives to take the stress out of buying or selling commercial and residential real estate by providing support during every step of a real estate transaction.

We serve clients in all cities and towns in Massachusetts, but primarily in Western Massachusetts and Cape Cod, including the towns of Barnstable, Worcester, Springfield, Agawam, Hampden, Wilbraham, East Longmeadow, Longmeadow, Ludlow, Belchertown, Monson, Ware, Westfield, Chicopee, Dennis and Yarmouth.
By Stephen Manning 14 Sep, 2018

For most people, buying a home is the biggest investment they will make during their lifetime. Especially for first time homebuyers, it is a time filled with excitement, anticipation and joy mixed with a little bit of anxiety and worry.


During the process of searching for a home, signing a sales contract, applying for a mortgage and attending the closing, buyers look to real estate professionals to guide them through the process and provide advice about various aspects of buying a home. Even though the closing attorney plays a large role in the real estate closing process, real estate agents, in some cases, are also relied upon by the buyers to help them understand the process.


Therefore, we would like to share five things that we believe every real estate agent should know about closings, titles and title insurance so that they can help their clients make informed decisions about what is best for them.


  1. The seller provides the deed – The seller is responsible for providing a new deed at closing, signed and ready to be delivered to the Buyers attorney and recorded once the closing is complete. A seller has the right to retain his own attorney to prepare the deed and review the closing documents, and represent the interests of the seller during the transaction. We find that on some occasions, Sellers choose to allow the Buyers closing attorney to prepare the deed, and if that is the case, the seller should be aware that the closing attorney is representing only the interests of the Buyer.
  2. Homestead Declaration – Homeowners can elect to file a Homestead Declaration with the Register of Deeds to protect from $250,000 up to $500,000 of the equity in their home from collection by unsecured creditors. This is not something that is required; however, it is an inexpensive way to protect the equity in your home. Realtors should advise their clients of this option well in advance of the closing so that if they choose to file a declaration, the closing attorney can be informed well in advance of the closing of the buyer's wish to take advantage of this opportunity.
  3. Mortgagee Title Insurance Policies do not protect the homeowner – A Mortgagee (or Lender) Title Insurance Policy is designed to protect the mortgage company in the event of a title defect. Most lenders require the buyer to pay for the policy; however, the policy does not provide the homeowner with any protections regarding a defective title.
  4. Buyers should purchase an Owner's Title Insurance Policy – An Owner's Title Insurance Policy is optional and not required to purchase a home. However, the insurance coverage is very inexpensive and you only pay a one-time premium for coverage that lasts as long as you own an interest in the home. The policy protects the homeowner from debts and obligations of prior owners as well as protects their use and occupancy of the property.
  5. The Expanded Owner Policy – This policy provides the same coverage as the standard policy does but adds an extra layer of protection for the buyer against certain title defects and other property issues. Again, it is rather inexpensive for the coverage and is a wise choice when you consider that you are making a huge investment and you should want to take every precaution to protect that investment.


Experienced real estate agents understand the importance of title insurance and may discuss it at great length with their clients prior to closing. If you have more questions about the closing process, titles or title insurance, do not hesitate to contact our office.


Contact Stephen R. Manning Law Office for more information about our affordable real estate services


When you are searching for a real estate attorney to handle your commercial or residential real estate transaction, you want an attorney with experience in real estate transactions and knowledge of Massachusetts property laws to give you reliable real estate advice.


The Stephen R. Manning Law Office strives to take the stress out of buying or selling commercial and residential real estate by providing support during every step of a real estate transaction. Further, these services are generally provided personally by our attorneys and not paralegals or other support staff.


We serve clients in western Massachusetts, including, but not limited to Springfield, East Longmeadow, Wilbraham, Agawam, Hampden, Longmeadow, Monson, Springfield, Westfield, West Springfield, Wilbraham, Sturbridge, Worcester and communities on Cape Cod, including Barnstable, Chatham, Dennis, Orleans and Yarmouth. Our office is conveniently located at 200 North Main Street, Suite 2, East Longmeadow, Massachusetts 01028. Call us today at (413) 525-1119 so we can help you with your real estate needs.

By Stephen Manning 14 Sep, 2018
In the event a loved one is deceased and leaves real or personal property in his or her name, without any joint owner, transfer on death designation or named beneficiary, if applicable, it will be necessary to file a Petition in Probate Court for allowance of a Will, if there is one. If there is no Will, a Petition to Adjudicate Intestacy and Determine heirs may be required, or other petition to appoint a personal representative.
It has been just over two years since the new Uniform Probate Code was implemented in Massachusetts. It is important for members of families of recently deceased loved ones to consider engaging qualified counsel to provide appropriate advice and services to properly file any required probate petitions to administer the estates of those recently deceased.

1. There are several options:

A. An Informal Petition may be filed, but prior to doing so, a 7 day notice must be delivered to all heirs and/or devisees. The Informal Petition may probate a Will, and appoint a Personal Representative, formerly known as an Executor. If there is no Will, the Informal Petition would simply request appointment of a Personal Representative. If the decedent left a Will, typically the Will nominates and appoints a Personal Representative, however, if there is no Will, a legal heir may request appointment. The Informal Petition, if in order, will be allowed by a Magistrate of the Probate Court in a timely manner, and once allowed the Personal Representative must publish a notice of the appointment in a local newspaper or other approved publication.

B. A Formal Petition may also be appropriate to probate a Will, and appoint a Personal Representative. In addition, the Formal Petition may also adjudicate Intestacy (when the decedent dies without a Will) and determine the heirs. This may be appropriate when the only asset of the estate is real estate.

C. There is also a proceeding that may be filed with the Court if the decedent had no real estate and had personal property having a value of $25,000.00, or less, exclusive of one motor vehicle. In such a case, once 30 days have elapsed from date of death, a Voluntary Administration proceeding may be filed with the Probate Court, specifically identifying the property, including the value of such property, for appointment of a Voluntary Personal Representative. This proceeding does not require any publication, nor any accounting or further filings with the Court.

2. Creditors of the estate, if any, must file claims and initiate action within one year after the date of decedent's death. Accordingly, it is prudent for the Personal Representative to retain funds in the estate until the expiration of the one year period and not make any final distributions to heirs or devisees until such time has expired.

3. The Personal Representative is required within 90 days of appointment to either file an Inventory of the assets of the estate and estimated values, or provide a copy to the devisees (if a Will) or the heirs (if intestacy), or both.

4. Real estate owned by the decedent may be sold by the Personal Representative without authority of the Court only if there is a Will, and the Will provides for a power of sale. If there is no power of sale contained in the Will, or if there is no Will, and the Personal Representative wishes to sell the real estate,, a Petition for License to Sell the Real Estate must be filed with the Probate Court for approval by the Court. Generally personal property of the estate such as a motor vehicle may be sold by the Personal Representative without a license.

5. Once the year from date of death has expired, any estate tax filings and fiduciary income tax returns, if any required, are filed, the estate may be closed and final distributions made to heirs and/or devisees. Additionally, the Personal Representative may also close the estate either formally by filing an account or providing a copy to the devisees or heirs, and file a Petition for Final Settlement of the Estate, or informally by simply filing a closing statement. If the Personal Representative chooses the informal closing, he or she must still provide an accounting to the devisees or heirs.

The above is a simple outline of some of the options and proceedings that are available to complete probate proceedings of a decedent's estate, in order that the personal representative and/or heirs of the decedent has the ability to collect the decedent's assets and distribute in accordance with a Will, if any, and if none, according to the legal heirs according to the laws of intestacy. It is the best practice to seek and engage qualified counsel to assist the personal representative in advising and attending to the appropriate procedures required by the law.
By Stephen Manning 14 Sep, 2018
The first misconception we need to clear up about title insurance is that you not only need it but you will be required to provide it for your mortgage company. Many first time buyers are confused by title insurance and do not understand why their mortgage company is requiring them to pay the premium for title insurance as part of their loan agreement. The reason your mortgage company wants to have title insurance is to protect them, not you, in case you default on the loan and the mortgage company must foreclose on the property.

Sounds a little confusing since the mortgage company has a signed promissory note and a recorded mortgage to protect their interest, right? Let's start by explaining a little more about title insurance to help you understand why it is so important to a mortgage lender.
By Stephen Manning 14 Sep, 2018
Whether property or assets are owned only by the decedent, jointly with another, or passes by a beneficiary designation or otherwise to a named beneficiary, such property is considered taxable in the decedents estate, and the family, persons in possession of such property or the Personal Representative must consider and determine if an estate tax filing is required. A federal estate tax filing is only required if the value of the decedent's estate exceeds 5.3 million dollars. However, the filing threshold for Massachusetts purposes is 1 million dollars. Although filing may be required, if a spouse is surviving who takes the property an estate tax may not be due as the spouse has what is called an unlimited marital deduction, which in effect exempts all such property passing to the spouse from the imposition of estate tax.

If the value of an estate is below the Massachusetts filing threshold the person in possession of real estate or the Personal Representative may execute an Affidavit certifying that no estate tax filing is required, which should be recorded in the Registry of Deeds or Land Court in the County where any such real estate is located, and such Affidavit will operate as a release of such estate tax lien.

Please keep in mind that circumstances vary for each client, and we suggest that you consult a professional tax advisor or attorney when dealing with these matters. If you do not have an attorney please do not hesitate to contact the Law Offices of Stephen R. Manning, P.C. at 413-525-1119.
By Stephen Manning 14 Sep, 2018
Generally, while planning the disposition of your estate on death, one should be mindful of the various ways in which you can transfer property and assets without the necessity of probate proceedings after death. The following are suggestions regarding same:

  1. Property owned as joint tenants or an account owned jointly with right of survivorship will pass by operation of law on death of one joint owner to the other.
  2. Some accounts, such as an annuity, retirement accounts, and life insurance policies typically permit the owner to designate a beneficiary to receive the account or death benefits.
  3. Many institutions permit the owner of accounts to sign a transfer on death form that transfers the account to a named beneficiary or beneficiaries on the death of the account owner.
  4. Property or accounts held or titled in a Trust, also generally avoids inclusion in probate estate proceedings when properly drafted.

It is recommended that you seek professional advice from an experienced estate planning attorney, before employing any of these strategies as each individual has different circumstances, and there are also estate tax issues that may need to be considered as well.

The Stephen R. Manning Law Office has the experience and knowledge to help with your estate planning needs. Our office is conveniently located at 200 North Main Street Suite 2, East Longmeadow, Massachusetts 01028.

Call us today at (413) 525-1119 so we can help you with your estate planning needs.
By Stephen Manning 14 Sep, 2018
When you visit a law firm for a real estate closing, the attorney makes it seem like a very easy process – – that is his job. A real estate attorney makes the process of buying and selling homes, purchasing rental property or drafting lease agreements as stress-free for his clients as possible. However, the nature of real estate transactions is quite complex and the volume of paperwork required to effect a legal transfer of property can be overwhelming. Therefore, having a real estate attorney represent your interests in a real estate transaction early in the process will help relieve some of the frustration and stress associated with buying and selling real property.

The Stephen R. Manning Law Office strives to take the stress out of buying or selling commercial and residential real estate by offering sound, practical legal advice for every phase of a real estate transaction.
By Stephen Manning 14 Sep, 2018
Many people believe that they must be rich or own real estate to need a Last Will & Testament. However, that is a common misconception that ends with families being frustrated and arguing when a loved one passes away without a will. For several reasons, estate planning is necessary whether you own a vast amount of property or not. That is why the Law Offices of Attorney Stephen R. Manning advise that everyone needs a Last Will & Testament.


1. To make sure your wishes are carried out. If you do not have a valid, legally enforceable will, your assets will pass according to the intestate laws of Massachusetts. These laws rarely reflect your wishes. Attorney Stephen R. Manning has over 35 years of estate planning experience. This experience allows him to help clients make sure that their wishes are carried out once they have passed.


2. Avoid costly tax consequences. Having a Massachusetts estate attorney help you devise an estate plan to avoid or reduce estate taxes is beneficial for your heirs and devisees. It will protect your assets and leave more of your hard-earned wealth to your heirs and devisees rather than to the state.


3. Avoid probate problems. By having a Last Will & Testament, you will avoid many of the probate problems that families face when a loved one dies without a will. The Massachusetts probate process may be more costly and complicated when a person dies without a will.


4. Protect your children. Having a Last Will & Testament allows you to provide for your minor children both financially and physically. Rather than allowing the state to govern who will be your children's guardian, you need a will to name the person you want to raise your children in case you and your spouse pass away. You also need to set forth how funds will be used to support your children in this unlikely event.


5. Make specific devises of personal property. By having a will, you can add an addendum to leave specific items to certain individuals. This allows you to leave family heirlooms or sentimental items to family or friends who you know will cherish those items after your passing.


6. You are divorced. If you are divorced, you want a will so that you can name the person who will be in charge of your child's inheritance if that child is a minor when you die. This may or may not be your ex-spouse. Without a will, your ex-spouse will likely be granted authority to manage your child's inheritance until he or she reaches the age of 18.


7. You remarry. If you have a blended family, you should have a Last Will & Testament to ensure that your wishes are carried out with regard to your children from your previous marriage, any stepchildren and your current spouse.


Having a Last Will & Testament protects your heirs and ensures that your wishes will be carried out after your death. Estate planning is a way to make a difficult process easier for your heirs. Dealing with the death of a loved one is traumatic; however, dealing with the pain of that loss in addition to dealing with probate issues can be avoided by having a valid, legal Massachusetts Last Will & Testament. The Stephen R. Manning Law Office has the experience and knowledge to help you draft a Last Will & Testament that will carry out your final wishes as well as help you devise an estate plan that will protect your property, your heirs and devisees after your death.
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