My father died and I want to put my inheritance in a trust. In what state should I hire an estate planning attorney?


Dear Harry,

My father, I am sorry to write, has just died, leaving his two trusts divided between my three sisters and me. Mainly to minimize taxes, I plan to build trust with my part. Since he lived and died in Massachusetts and I plan to return in a year or so, should I find a trusted attorney to practice in Massachusetts instead of here in Indiana? One of the concerns is that I am in a wheelchair with degenerative ataxia and will probably want to apply for state services at some point.

Dear reader,

I’m sorry to hear from your father. I would advise working with a Massachusetts lawyer. While all states must honor wealth planning documents created in other states (the Constitution’s due faith and credit clause), laws on wills, powers, health directives, taxes, and public benefits are quite different from the state to state that the most prudent thing is to work with a lawyer where you will end up. As they say (or was it Donald Rumsfeld who said that?), You don’t know what you don’t know. An Indiana attorney can’t know what he doesn’t know about Massachusetts law (and vice versa).

I would add that your plan will probably have little or no effect on taxes, but it could be very relevant to qualify for services, especially under the Medicaid program (called MassHealth in Massachusetts). In this regard, it may have been helpful for your father to have left your share of the property in the trust for your benefit instead of distributing it, as seems to be the case. Medicaid rules are much more liberal for third-party trusts (your father) than for trusts created by the beneficiary (you) for your own benefit. I’d like a lawyer to look closely at your father’s trusts to see if they could continue to benefit you. Sometimes trusts include savings clauses that allow the trustee to withhold funds for a beneficiary with a disability rather than distributing them directly.

But that could be water under the bridge, and you can still take action now to protect your assets and qualify for benefits if needed.



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