Estate Planning

 

One of the hardest things to do is pick guardians for your young children. A guardian is a person that you trust and empower to take care of your minor children. Parents are left paralyzed in an effort to figure out who could take on the role of raising their children. Often times, when planning for the future, parents leave the guardianship nomination blank and without a nomination the decision will be left up to the probate court. This means that if something were to happen to both parents, the arrangement for the children will be decided without parental voice or opinion. The individuals that seek guardianship over your minor children will then have to go to the probate court to ask the judge to appoint them as guardians. This will be occurring during a time where the children have presumably lost both parents and now, they are going through a court battle where relatives may be fighting over them. Although intentions may be good, the children will be pulled in multiple different directions when it is important that they have a stable atmosphere.

This all stems from not proactively dictating what happens. To avoid this, as a parent, it is important to create a stand-alone guardianship nomination that tells the court exactly who you want to have guardianship of your minor child.

Another option is a temporary guardianship nomination. It is useful if you are on a trip and your children are at home and need medical care. This temporary nomination also covers the 60-day period after your death before the court officially appoints a full time guardian. This helps to avoid pulling the children between all these well-intentioned individuals at a time when they need to grieve.

We have recently launched a website that focuses on estate planning, www.stiles-estates.com, where you can find more information and a contact form, or you can contact us directly to schedule a consultation.

If you have any questions about estate planning, contact Stiles Law by calling (781) 319-1900.

Copyright © 2019 Stiles Law, All rights reserved. Stiles Law is a Massachusetts licensed law firm and all content is based on Massachusetts law. The information presented above is meant to be used for general informational purposes and it should not be construed as legal advice or legal opinion on any specific facts.

Ghosts, Suicides and Homicides: Do Sellers Need to Disclose?

 

We received another viewer’s question: I am listing a home and I have learned that the former owner committed suicide, do I need to disclose this to all of the potential Buyers? We often receive this and other similar questions like: there is a suspicion of a ghost in the house, someone has died due to a homicide, do I need to affirmatively disclose these facts?

In short, under M.G.L. 93A § 108, there is no need to affirmatively disclose these types of items. It is important to remember that if a Buyer asks a specific question the Seller cannot lie whether that lie is explicit or by omission. Misrepresentation is very different from a duty of affirmative disclosure. The Seller must be truthful and honest when specifically asked. The statute specifically states that if a property is psychologically impacted, that is not a material item that must be disclosed.

If you have a question about what needs to be disclosed in a MA real estate transaction, contact Stiles Law at (781) 319-1900 or stiles-law.com.

Stiles Law, with offices located in Boston and Marshfield, Massachusetts, is a firm concentrating in real estate conveyancing and mortgage lending services, representing buyers, sellers, borrowers, banks, mortgage companies, investors, builders and developers in all of their real estate and mortgage transactions. Stiles Law serves all areas of eastern Massachusetts–the North Shore, Boston, and Cape Cod, in addition to the entire South Shore, including: Plymouth, Kingston, Duxbury, Hanover, Pembroke, Marshfield, Scituate, Norwell, Cohasset, Hull, Hingham, Weymouth, Braintree, and Quincy. Copyright © 2019 Stiles Law, All rights reserved. Stiles Law is a Massachusetts licensed law firm and all content is based on Massachusetts law. The information presented above is meant to be used for general informational purposes and it should not be construed as legal advice or legal opinion on any specific facts.

The Massachusetts South Shore Real Estate Blog: Have You Thought Through Your Succession Plan?

As turkey day looms, we want to discuss a very important topic that most of us put off: Estate Planning. Somewhere between cleaning out the basement and washing those upstairs windows, estate planning is often regarded as that thing that we’ll get to someday. As we all know, unfortunately, there is never a guarantee that there will be a someday. In that vein, this week’s blog article is dedicated to the basics of Estate Planning and the process to complete one.

Estate Planning is a broad term that describes planning done during a person’s life to settle their affairs and transfer assets upon their death. There are countless variations and considerations, but we’re going to tackle the instruments that the vast majority of our clients ultimately sign. The following documents are the four instruments that we think EVERYONE should have:

Will: A will is a document that nominates a Personal Representative to distribute your estate (assets) to named people or organizations. In most cases, a married couple will leave the entirety of assets to the surviving spouse, with the children taking if there is no surviving spouse. A will works for smaller estates or for clients who want to avoid the expense of more complex trust planning.

Guardianship Nomination: This document is highly important to families with minor children. It sets the parents’ preference for who should look after minor children if the parents are unable.

Power of Attorney: A power of attorney is a document which authorizes another person to take actions on one’s behalf. Perhaps you are traveling overseas or are incapacitated in some way. A power of attorney allows your fiduciary to make legally binding decisions on your behalf during your incapacity or absence.

Healthcare Proxy: We like to describe this as a Power of Attorney for healthcare decisions. Suppose you’re in a car accident and are unconscious. A healthcare proxy allows your fiduciary to make medical decisions on your behalf.

Why do we need estate planning?

There are many reasons, some of which you may already be anticipating, why a person should have an estate plan:

Lack of control: without an estate plan, the rigid rules of “intestate succession” ultimately determine where your assets go. “Intestate Succession” refers to the default rules governing distribution of assets when a person does not have a will. Most people are uncomfortable letting the government decide who takes their assets upon their death.

Unintended consequences: Intestate succession has some counterintuitive results. Blended families, where some children aren’t born of both spouses, can be thrown into turmoil when the surviving spouse only takes half of the other spouse’s estate. That heir that you haven’t spoken to in twenty years may be entitled to a large portion of your assets.

No Access to Funds: Intestate estates need to be probated at court. Court can take many months before any assets are available. By executing a will, this length of time is shortened so surviving family members have quicker access to funds. Some clients wish to shorten this waiting period even further by executing and properly funding a trust or trusts—a topic for a future blog.

Minor children: without a strong guardianship nomination, determining a guardian before the probate court can take many months. Losing a parent is made worse when the child is then the subject of a legal battle for guardianship.

Estate planning is a necessary chore. While it may be uncomfortable to consider, the process is actually quite painless. This is especially true in light of the consequences of not having an estate plan. If you would like assistance creating your estate plan, please contact Attorney Ben Cote (bcote@stiles-law.com) or his paralegal, Christine Guerrier (cguerrier@stiles-law.com) to schedule a consultation. As always, you are welcome to call (781) 319-1900 to schedule an appointment.

Click here to get to know our team.

Stiles Law, with offices located in Boston and Marshfield, Massachusetts, is a firm concentrating in real estate conveyancing and mortgage lending services, representing buyers, sellers, borrowers, banks, mortgage companies, investors, builders and developers in all of their real estate and mortgage transactions. Stiles Law serves all areas of eastern Massachusetts–the North Shore, Boston, and Cape Cod, in addition to the entire South Shore, including: Plymouth, Kingston, Duxbury, Hanover, Pembroke, Marshfield, Scituate, Norwell, Cohasset, Hull, Hingham, Weymouth, Braintree, and Quincy.

Copyright © 2017 Stiles Law, All rights reserved. Stiles Law is a Massachusetts licensed law firm and all content is based on Massachusetts law. The information presented above is meant to be used for general informational purposes and it should not be construed as legal advice or legal opinion on any specific facts.

South Shore Real Estate Blog: The Great Thaw—Five Ways to Loosen Inventory

Bob ThawAnyone involved with today’s market undoubtedly knows that we are in a period of low inventory. This week, we’re going to look at five strategies that allow Buyers and Agents to help thaw an otherwise frozen market.

  1. One Day Exclusive Listing Agreements:

Ordinarily, a Buyer’s Agent will search the MLS looking for homes that meet their Buyer’s requirements within a given area. Due to low inventory, very often there are few homes, if any, to show a Buyer. In this situation, an Agent should consider what’s known as a “one day exclusive listing agreement.” Very simply, the Agent will send a letter stating that they are an Agent of a Buyer who is interested in their home. The Agent will represent/list the recipient’s home for a single day to allow their Buyer to view and potentially submit an offer and as an additional benefit to the Agent, even if the Buyer does not make an offer, for whatever reason, the Seller will often ask the Agent to list their home for sale because now their mindset has shifted due to the excitement of moving. Result: the Buyer is able to see more houses, the Seller is spurred to list their house, and the Agent either sells a house or gets a listing: this is  truly a win, win, win situation.

2. Technology/Social Media: 

One may take the “old school” approach of actually knocking on doors and asking if the owner is interested in selling; and it may work. With social media as a platform to broadcast a desire or need, it’s easy for an Agent to post what their client is looking for, perhaps enticing an otherwise non-selling homeowner to sell their home. For example: “I have a Buyer looking for a 3 bedroom home with a yard big enough for their dog in Mytown, USA.” As an additional benefit, you are marketing and developing your brand as a Real Estate Agent. Friends who didn’t know you were an Agent will be reminded by such posts. Use technology and creativity to “manufacture” inventory and develop your brand.

3. Negotiate a Home Sale Contingency:

Many Buyers are sitting on the sidelines waiting for inventory to increase. The problem is that many of these Buyers are also would-be Sellers. To increase inventory, Buyers who also need to sell should make an offer which includes a home sale contingency with their offer. That said, not all home sale contingencies are created equal. There are generally four types which expire at different points of the sale process: 1) the Seller becoming party to a signed offer, 2) the Seller becoming a party to a signed purchase and sale agreement, 3) the Seller’s Buyer receiving their mortgage commitment, or 4) the Seller closing on their sale and receiving proceeds. An Agent guiding their Buyer should define precisely which type of home sale contingency they are seeking. Sellers should bear in mind that while inventory is low, there’s a good chance that the Buyer will sell their own home quickly assuming their home is properly marketed at a realistic price. The Seller’s agent may be able to evaluate the Buyer’s marketing strategy and home to get a better sense of how likely it will be to sell at the Buyer’s listing price.

Notwithstanding, Sellers may also choose to include a “Kickout Clause” in their counter offer. Generally speaking, a kickout clause allows the Seller to continue listing their house for sale, during which time if the Seller receives a bona fide offer that is stronger than the Buyer’s offer, the Buyer is given a defined period to either waive the home sale contingency or exercise their rights under the contingency to terminate the Agreement. For more information on kickout clauses, read our article, The Offer Part 2 – Contingencies for Sellers to Consider.

4. Negotiate a Suitable Housing Contingency:

Many Sellers are saying that “If I found the right house, I would sell mine.” Those Sellers are sitting on the sidelines waiting for inventory to increase so that they can find their next house. (Some homeowners simply prefer to Sell before they buy. Buying before selling comes with the risk of not being able to find a home to purchase before having to close on their sale.) As with sale contingencies, not all suitable housing contingencies are created equal. A suitable housing contingency generally expires at one of four points: when the Seller 1) signs an offer, 2) signs a purchase and sale agreement, 3) receives a mortgage commitment, or 4) closes on their purchase. The benefit of sharing the risk is that Buyers who would otherwise wait for inventory to increase before listing will be willing to list and sell their homes, thus, increasing inventory.

5. Disclose the Seller’s Time Requirements:

Finally, a Seller may choose to disclose on the listing that they need more time than is customary between signing the Purchase and Sale Agreement and closing: sixty days or even longer is not unreasonable when properly disclosed. Many Buyers are flexible and wouldn’t mind extra time if it means buying the home of their dreams.

While the above strategies do not present a complete panacea, using one day exclusive listings and strategic contingencies can help to bring homes that would otherwise stay off the market, into the market. The common thread between these five strategies is creativity. Creative thinking can help to thaw the frozen market, benefiting Buyer, Sellers and even Agents, alike.

Click here to get to know our team.

Stiles Law, with offices located in Boston and Marshfield, Massachusetts, is a firm concentrating in real estate conveyancing and mortgage lending services, representing buyers, sellers, borrowers, banks, mortgage companies, investors, builders and developers in all of their real estate and mortgage transactions. Stiles Law serves all areas of eastern Massachusetts–the North Shore, Boston, and Cape Cod, in addition to the entire South Shore, including: Plymouth, Kingston, Duxbury, Hanover, Pembroke, Marshfield, Scituate, Norwell, Cohasset, Hull, Hingham, Weymouth, Braintree, and Quincy.

Copyright © 2016 Stiles Law, All rights reserved. Stiles Law is a Massachusetts licensed law firm and all content is based on Massachusetts law. The information presented above is meant to be used for general informational purposes and it should not be construed as legal advice or legal opinion on any specific facts. No child labor laws were breached during the creation of this Blog, further Bob Bonkley was compensated for his likenesses and appearances in the same.

 

The Massachusetts South Shore Real Estate Blog: Benefits of Wintertime Investment in Real Estate

Winter Wonderland

Typically there’s a thick blanket of snow covering everything in sight–and if there isn’t, it won’t be long until there is. It is for this reason that the real estate market is notoriously slow in the winter months. While it’s tempting to curl up with a steaming cup of cocoa and a good book, this is actually one of the best times to purchase real estate. Numerous factors, which we will outline here, combine to make this time of year a buyer’s market for novice purchasers and high-powered investors alike.

Interest Rates are Still Low: Okay, so this isn’t because it’s winter.  Fed policy has helped to keep rates historically low. While none of us have a crystal ball, investors and home-buyers could see significantly higher rates in the not so distant future.

Fewer Buyers: Get ready to dust off your Econ. 101 notes–as demand drops and supply remains relatively constant (or at least if demand drops more sharply than supply), we should expect prices to drop as well. Most other buyers, whether to avoid the slush or moving their children during the school year, will be drinking their cocoa rather than pounding pavement (or ice, as the case may be). In addition to lower prices, buyers will enjoy greater negotiating power as there are fewer standby offers (or even interested buyers) for the Seller to rely upon. Further, chances are that if the property is on the market during the winter months it has been on the market for longer than the seller wanted and as such is motivated to sell. Wintertime bidding wars are rare.  All of this plays to the advantage of the buyer.

Agents will have Fewer Clients: Since there are fewer buyers during the winter months, Real Estate Agents will simply have fewer clients to tend to. This means each client will receive a larger portion of the Agent’s attention, and by extension, even greater searching and negotiating power.

Lower Loan Application Volume: When fewer homes are sold, lenders have fewer applications to process. Similar to the greater attention from Agents, loan processors will likely have more resources to dedicate to your application which should improve speed and smoothness of the loan application process.

You Get to See the House at its Worst: Yes, you read that correctly. At base, selling a house is selling a product. There’s a reason that most listings show the property in the middle of spring or summer, covered with lush vegetation and manicured landscaping: it helps to increase the buyer’s perception of the property’s value. Buying when the property is covered with snow, sand, salt, and ice removes the emotional “wow” that fair weather primping can have. Additionally, prospective buyers will have a better idea of the condition of essential systems—for example, whether the furnace adequately heats the space. Leaks, cracks, and other cold weather problems will also manifest themselves more readily in the dark winter months.

While it might feel counterintuitive to start your search while the frigid winds are still howling, the intrepid buyer is more likely to score a deal than the one who is waiting for the springtime thaw.  For additional considerations about whether this is the time to invest in real estate, check out our past Article: Is It Time To Buy That Investment Property Or Second Home?

 

Stiles Law, with offices located in Boston and Marshfield, Massachusetts, is a firm concentrating in real estate conveyancing and mortgage lending services, representing buyers, sellers, borrowers, banks, mortgage companies, investors, builders and developers in all of their real estate and mortgage transactions. Stiles Law serves all areas of eastern Massachusetts–the North Shore, Boston, and Cape Cod, in addition to the entire South Shore, including: Plymouth, Kingston, Duxbury, Hanover, Pembroke, Marshfield, Scituate, Norwell, Cohasset, Hull, Hingham, Weymouth, Braintree, and Quincy.

Copyright © 2015 Stiles Law, All rights reserved. Stiles Law is a Massachusetts licensed law firm and all content is based on Massachusetts law. The information presented above is meant to be used for general informational purposes and it should not be construed as legal advice or legal opinion on any specific facts.

 

The Massachusetts South Shore Real Estate Blog: Summary Process: Evicting a Tenant in Massachusetts

In our last two posts, Considerations for Future Real Estate Investors and Congratulations–You Bought an Investment Property–Now What?, we discussed some of the reasons why it is a great time to invest in real estate and how to properly establish the landlord-tenant relationship. Even the most experienced landlord can find him or herself with a tenant that needs to be removed.

STOP! Do Not Attempt to Perform a Self-Help Eviction:

In Massachusetts, it is illegal to engage in “self-help,” which generally includes: changing locks, removing the tenants personal property, threatening or harassing the tenant, or turning off the tenant’s utilities (e.g., water, heat, gas, or electricity). Engaging in any of these activities will only make your legal problem worse: now your tenant may now have a viable defense (defeat your attempt to evict), a counterclaim (a money claim against the landlord for damages), or you may even be charged with a crime and you could go to jail (this is rare but can happen, especially for egregious behavior). We know, this doesn’t seem fair. Why should a bad tenant have so many rights? Don’t shoot the messenger. Here’s how to evict property.

Step 1: Notice to Quit:

The tenant must receive actual notice that the landlord intends to end the tenancy. There are two types of notice: a 14 day notice to quit and a 30 day notice to quit. A 14 day notice is only applicable if the landlord’s claim is based on the fact that the tenant has failed to pay rent. A 30 day notice is required in all other situations, i.e. termination of a tenancy at will or for the tenant’s breach of a provision in the lease.

Know your Dates:

  1. Service Date: the date on which the tenant is served with the Summons and Complaint. This date must occur at least one day after the notice period expires.
  2. Entry Date: the date on which the Summons and Complaint, Notice to Quit, and Return of Service are filed with the court. This date must be on or before the Monday (unless Monday is a holiday–then it’s Tuesday) entry date stated in the summons and complaint–it must be no fewer than 7 days nor more than 13 days after the Service Date.
  3. Answer Date: the date, which must be on or before the first Monday after the entry date stated on the Summons and Complaint, on which the Defendant’s answer and counterclaims must be filed.
  4. Trial Date: the date, which is ten days after the entry date stated in the Summons and Complaint, assuming there is no jury or discovery request which can automatically extend this date, on which the landlord and tenant must go to court for trial.

Step 2: Summons and Complaint:

If the tenant has not surrendered the premises by the expiration of the notice period, the landlord (now the Plaintiff) must serve a summons and complaint on the tenant (now the Defendant), usually by sheriff or constable, and then file the summons and complaint, return of service, and notice to quit with the Court (see the discussion of the “Entry Date” above). As is apparent from the discussion of important dates above, the process of service and the timing that it takes is technical. This process must be done properly–any deficiency can result in a dismissal of the Plaintiff’s suit.

Step 3:  Trial:

On the day of trial, most cases are resolved through mediation or direct negotiation between the parties. Settlement is more predictable than going before a judge because a judge has broad discretion in granting stays  of execution–in some narrow instances, up to one year. An attorney will be instrumental in protecting the landlord’s interests through careful drafting of a Settlement Agreement and by gauging the relative strength of the case. Further, your attorney will help you prove the facts alleged in your complaint at trial–the only way to prevail if negotiation is unsuccessful.

Step 4: Execution:

An execution is the written court order which allows the tenant to be removed. Removal must be done by a constable or sheriff and the tenant must be given 48 hours notice before removal can take place. A landlord who attempts to remove the tenant or the tenant’s property by himself or herself can be subject to the significant self-help penalties noted above.

The Best Way to Save Considerable Time and Money:

  1. Establish your Landlord-Tenant Relationship Properly: for starters: read our last post Congratulations–You Bought an Investment Property–Now What?, use a well drafted lease, hold the tenant’s money properly, do your due diligence before entering the contract, and document the condition of the premises at the start of the tenancy.
  2. Send a Notice to Quit as Soon as you Stop Receiving Payment: many landlords will allow many months of non-payment to occur before starting the eviction process. The cost of sending the notice to quit is relatively small in comparison to the saved time (and money) that early service can shave off the process.
  3. Call your Attorney Before Taking any Action: while it may not rise to the level of self-help, quite frankly, landlords already tend to fight an uphill battle. Even if the tenant has been rude and unpleasant, returning this behavior can result in judicial sympathy for the tenant.

Evicting a tenant can be unpleasant, time consuming, and costly. Problematic tenants are an unfortunate realty for real estate investors of all experience levels. Understanding the process and following these tips can help keep this process relatively quick and efficient.

 

Stiles Law, with offices located in Boston and Marshfield, Massachusetts, is a firm concentrating in real estate conveyancing and mortgage lending services, representing buyers, sellers, borrowers, banks, mortgage companies, investors, builders and developers in all of their real estate and mortgage transactions. Stiles Law serves all areas of eastern Massachusetts–the North Shore, Boston, and Cape Cod, in addition to the entire South Shore, including: Plymouth, Kingston, Duxbury, Hanover, Pembroke, Marshfield, Scituate, Norwell, Cohasset, Hull, Hingham, Weymouth, Braintree, and Quincy.

Copyright © 2015 Stiles Law, All rights reserved. Stiles Law is a Massachusetts licensed law firm and all content is based on Massachusetts law. The information presented above is meant to be used for general informational purposes and it should not be construed as legal advice or legal opinion on any specific facts. No child labor laws were breached during the creation of this Blog, further Bob Bonkley was compensated for his likenesses and appearances in the same.