The Digital Hereinafter

Let’s Do Something Great!

New England Estate Planning (“NEEP”), is, among other things, a state-specific automated drafting site for lawyers licensed in Maine, New Hampshire, and Massachusetts, and is now open for attorney registration.

While the site, www.newenglandestateplanning.com, is not yet ready for attorney use, we are now open for registration and doing beta testing on the site. We hope to launch the site in phases starting on January 1, 2021.

Attorney registration is simple and can be done online in a few minutes. Please visit www.newenglandestateplanning.com.  We will confirm through your bar that you are an active member. If you would like additional passwords for staff, please let us know their names and email addresses, and we will provide you with separate passwords for their use.  If a staff member leaves your firm, please let us know so that we can cancel their access.

Most of the features of NEEP are free to attorneys and their staff.  A premium area will be carved out as a possible future place for the development of subscription-based forms.

To help NEEP succeed, we need your help.  Encourage attorneys that you know to register!  Forward the site link and this blog post.  The more lawyers that register and that eventually use NEEP, the greater the likelihood that NEEP can eventually attract enough subscribers to the directory to enable the site to be self-sufficient.  A populated directory also creates a resource for lawyers of businesses that are vetted by attorneys.  Once the directory is populated with businesses, you can continue to help NEEP by using and rating the businesses listed in the directory just as you would on Google, Yelp, or similar sites.  Attorney ratings are anonymous.  Lawyers can also pay for a subscription listing in the directory or subscribe to the premium service.

For as long as I can remember, lawyers have been the contestants in a never-ending beauty contest.  When I started practicing, that meant being listed in Martindale-Hubbell.  Their large handsome printed volumes were a standard set in many law offices.  Today,  thanks to the web, we have AVVO, Martindale-Hubbell, SuperLawyers, Lawyers.com, LegalMatch, Findlaw, and the list goes on.  Most of them don’t ask you if you want to be listed.  You are just listed – it’s a right protected by the 1^st Amendment. Most of them want you to pay them and not an insignificant amount either.   You might get some SEO juice out of the deal, but my bet is that these services are not making your phone ring off the hook, particularly if you are just getting started.  Don’t like your rating or reviews?  Too bad. You have to live with it.   Moreover, do any of them help you practice day-to-day?  Do they make your practice more efficient?  Provide you with tools?  Anything of substance?  Anyone? Anyone?

However, if you turn AVVO, Martindale-Hubbell, SuperLawyers, and all the rest of them, on their heads and, in the process, got some assistance with working faster, more efficiently, and with no added cost, what do you get?  NEEP, that’s what and, it’s not cheap, it’s free (mostly).  Anyway, that’s what we are trying to build, and it’s for you, the estate planning lawyer because we know that, someday you will need “that form” or “that resource” or that “professional referral” and when that day comes, we hope that you will find “that” on NEEP.

To learn more, please visit http://www.newenglandestateplanning.com.  Contact us at info@newenglandestateplanning.com.

Happy New Year!

The Centers for Medicare and Medicaid Services (CMS) released the Spousal Impoverishment Standards for 2020, which is available at https://www.medicaid.gov/medicaid/eligibility/downloads/spousal-impoverishment/ssi-and-spousal-impoverishment-standards.pdf

Quality Control in Estate Planning – How to Run Your Firm like it is Made in Geneva. 

Estate Planning Systems and Checklists

How do you maintain constant quality control in your estate planning practice?  Of course,  as an attorney you pay attention to the details, but can you be assured that you always catch everything?  How about your staff?  You can’t have an efficient practice if you don’t delegate, so how do you ensure that they maintain the same level of diligence?   How about new staff?  It can take years to properly train a staff person.  How can you get them up and running quickly, but also ensure that when you aren’t watching over them, that they are assisting you in a way that does not undermine your practice?  And when new issues arise and are identified, how do you resolve them so that the issue or mistake does not reoccur?

The answer is you have to have a system (many, in fact), and you have to be checklist driven. Even then, mistakes of one sort or another will arise, but when you employ dedicated systems and checklists, at least you are functioning on a consistent basis.  That’s the first step in quality control and to making your practice run like clock-work. From how matters are opened, to how they are closed, cradle to grave, you simply have to have systems and checklists.  Sounds great – right?  Right. Sure, no problem.  You have lots of time to do all that administrative work, refine it, update it and expand it as you see new areas of concern.  Okay, I get it, no one, or very few of us, have that kind of time.  Not to worry, New England Estate Planning has your back.

New England Estate Planning (“NEEP”), http://www.newenglandestateplanning.com is developing forms for lawyers in Maine, New Hampshire, and Massachusetts, including checklists, and workflows (systems) to help make that dream a reality for every estate planning attorney because let’s face it, it takes a lot of time (and a particular type of personality) to put that together. It also takes a lot of experience.

Can you use the forms that NEEP provides and modify them to suit your needs?  You bet.  Will NEEP forms likely need to be adjusted to do that?  As we all have our own particular practices and ways of doing things, you should expect that forms that NEEP will offer will be there as a starting place.  Can you contribute (share) forms for other lawyers to benefit from?  You bet.  That is one of the main goals of NEEP; to create a shareware site for lawyers.

Do you really need a system and/or checklists?  Can’t you just wing it?  To answer that question, you might want to do some additional reading. Many people have written about the power of systems and checklists.  The Power of A System (http://thepowerofasystem.com/), by John H. Fisher, is one example.   The Checklist Manifesto (http://atulgawande.com/book/the-checklist-manifesto/) by Atul Gawande is another.  The short answer is, of course, you can, but if you had a choice, why wouldn’t you?

Who uses checklists?  Pilots, surgeons, architects, financial advisors (I hope), and accountants.  Professionals that take their work and the outcome seriously.  Professionals that believe that the only number of acceptable mistakes over 1,000 transactions is zero. At my firm, Brennan & Rogers, PLLC (www.brennanrogers.com), we use checklists because what we do is serious work.  Admittedly, it feels like our systems and checklists are always changing.  It’s a challenge, however, that I fully embrace.  I suppose that is why they call it the practice of law, but,  recently, I have come to a place in my life’s practice where I simply don’t see the need for each legal generation to have to recreate that wheel from scratch.  Too much is at stake.  If you believe avoidable mistakes are acceptable, then don’t be checklist driven.  However, if you think that is crazy talk, then it is time to get serious.

If you are an attorney licensed in Maine, New Hampshire, and Massachusetts, you can pre-register with New England Estate Planning. It’s free to register.  It’s anonymous.  It likely won’t be the final solution for all your needs for estate planning, but as a shared base for many attorneys, it may provide you with a good foothold to start your way to a better practice, a more efficient practice, or a safer practice

Today we are attaching a sample deed review checklist. Deed Review Checklist. Maine

Happy Drafting and Happy Holidays!

Maine’s New Elective Share – Is a marriage more “worthy” with age? Maine’s new probate code thinks so.  What do you think?

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Hold on to your candy kiddos; this is a stickup!

Title 18-C MRS Section 6-102(2) (http://legislature.maine.gov/statutes/18-C/title18-Csec6-102.html) of Maine’s Uniform Probate Code introduces us to a new concept, nonprobate transferee liability.   The statute provides that, except as otherwise provided by statute, a transferee of a nonprobate transfer is subject to liability to any probate estate of the decedent for allowed claims against the decedent’s probate estate and statutory allowances to the decedent’s spouse and children to the extent the estate is insufficient to satisfy those claims and allowances.  In other words, if the probate estate is insolvent, creditors with allowed claims (claims that were timely presented and not denied) can seek recovery from assets passing outside of probate (trust, multi-party accounts, joint tenancy, beneficiary designation, etc.).  Boo- that’s scary!  Thankfully, the statute provides that the liability of a nonprobate transferee may not exceed the value of nonprobate transfers received or controlled by that transferee, but isn’t that stating the obvious?

This statute makes it important to still probate a will, even if there are no assets, because, in Maine, creditors have 4 months from the first date of the publication of notice to creditors (published in a local newspaper) to present their claims.  Creditors that fail to do so are forever barred from bringing a claim.  In the past, if the probate estate was insolvent, a revocable trust might be liable for claims, but the recipients of property otherwise passing outside of probate, such as assets jointly owned, were not similarly liable. Thanks to Title 18-C MRS 6-102(2), that is no longer the case.

Nonprobate transferees are liable for the insufficiency in the following order of priority:

1. A transferee designated in the decedent’s will or any other governing instrument, as provided in the instrument;
2. The trustee of a trust serving as the principal nonprobate instrument in the decedent’s estate plan as shown by its designation as devisee of the decedent’s residuary estate or by other facts or circumstances, to the extent of the value of the nonprobate transfer received or controlled; and
3. Other nonprobate transferees, in proportion to the values, received.

The above default ordering rules also have the potential to cause trouble unless a will thoughtfully addresses who should bear the debts of an insolvent estate.

The increased statutory allowances (see Title 18-C MRS 2-401 -404) available  to a decedent’s spouse and children, which are often overlooked, may encourage a different type of claim relief where assets of an insolvent estate are encumbered.  In bankruptcy, what I am referring to is sometimes called a “cram down.”  I’ll return to this issue in a future article but, I’ll tell you this, it’s a trick and not a treat.

Happy Drafting!

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The enactment of the Maine Uniform Probate Code on September 1, 2019, brought with it Title 18-C M.R.S. § 6-401, et seq., the Uniform Real Property Transfer on Death Act, see https://legislature.maine.gov/statutes/18-C/title18-Csec6-401.html, which authorizes the use of transfer on death deeds, sometimes called “Lady Bird Deeds”.  During life, a transfer on death deed is revocable even if the deed or another instrument contains a contrary provision.  The transfer is not nontestamentary (meaning, it is not subject to probate) but the same degree of capacity required to make a will is required to make or revoke a transfer on death deed.

The essential elements of a transfer on death deed are:

1. The deed must contain the essential elements and formalities of a properly recordable inter vivos deed;
2. The deed must state that the transfer to the designated beneficiary is to occur at the transferor’s death; and
3. The deed must be recorded before the transferor’s death in the public records in the registry of deeds in the county where the property is located.

A transfer on death deed is effective without delivered to the beneficiary during the transferor’s life or consideration (ex. money or money’s worth).

During a transferor’s life, a transfer on death deed does not affect an interest or right of the transferor or any other owner, including the right to transfer or encumber the property.   Among other things, it also does not affect the transferor’s or designated beneficiary’s eligibility for any form of public assistance.  Effectively, it is as if nothing has happened because, in fact, nothing has.  Remember, a transfer on death deed is entirely revocable during life.

If you or a client create a transfer on death deed, should your power of attorney address the circumstances under which an agent (that is, the attorney in fact) under the power can revoke it? Probably.  While a transfer on death deed does not affect the transferor’s or designated beneficiary’s eligibility for any form of public assistance during the life of the transferor, that does not mean it is without future ramifications.  There will likely be many circumstances where complications with public assistance will arise because of the use of a transfer on death deed that might not have occurred had a more thoughtful vehicle been chosen – one that anticipated the need for future public assistance.

No doubt transfer on death deeds will reduce the number of future ancillary administrations that Maine practitioners will need to deal with and that the courts will have to process.

Happy Drafting!

The Maine Uniform Probate Code (MUPC), Title 18-C M. R. S. § 1-101 et seq., https://legislature.maine.gov/statutes/18-C/title18-Cch0sec0.html, with a delayed effective date of September 1, 2019 (see Section 8-301(1), H.P. 1881- L.D. 1535) pursuant to emergency legislation, revokes Title 18-A. Title 18-C brings with it significant changes to the law, including a new means of collection against nonprobate transferees in insolvent estates, automatic inflation adjustments, transfer on death deeds, multiple-party accounts, changes to the elective share, changes to the intestacy statute, the Maine Revised Uniform Fiduciary Access to Digital Assets Act,  just to  name a few, all of which will alter the preprobate process in some respects and probate practice in many respects.  Many practice forms will need to be revised, including but not limited to Wills, Powers of Attorney, and tangible memorandum bequest forms.   Stay tuned for a series of short articles on this blog that will explore the changes and what you should know.

Got Forms?  The legal wind direction has changed once again!

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Once it is launched, New England Estate Planning (www.newenglandestateplanning.com) will host updated forms, which will be very helpful for the attorney that is licensed in Maine but does not regularly practice in Maine.   Access to forms on http://www.newenglandestateplanning.com is limited to lawyers licensed to practice law in Maine, New Hampshire, and Massachusetts.

Happy Drafting!