My father has died and I want to entrust my inheritance. In which state should I hire an estate planning attorney?

Dear Harry,

It is with regret that I write that my father has just passed away leaving his two trusts which have been divided between my three sisters and myself. Mainly to minimize taxes, I plan to set up a trust with my interest. Since he lived and died in Massachusetts and I plan to return there within a year or so, should I find a legal counsel who practices in Massachusetts and not here in Indiana? One concern is that I am in a wheelchair with degenerative ataxia and will probably want to apply for government services at some point.

Dear Reader,

I’m sorry to hear from your father. I would recommend working with a Massachusetts attorney. While each state uses the estate planning documents prepared in other states (the Due Faith and Credit Clause of the Constitution), the laws pertaining to wills, powers of attorney, health guidelines, taxes, and public benefits vary so much from state to state that it’s wisest to work with an attorney, which is where you’ll end up. As they say (or it was Donald Rumsfeld Who said that?), you don’t know what you don’t know. An Indiana attorney can’t know what she doesn’t know about Massachusetts law (and vice versa).

I’d add that your plan will likely have little or no tax impact, but it could be very relevant to qualifying for services, particularly under the Medicaid program (called MassHealth in Massachusetts). In that regard, it might have helped if your father had left your share of his estate in the trust for your benefit, rather than having it distributed, as it sounds. Medicaid rules are much more permissive for trusts formed by a third party (your father) than for trusts formed by the beneficiary (you) for their own benefit. I would ask an attorney to look closely at your father’s trusts to see if they could be continued to your advantage. Sometimes trusts contain savings clauses that allow the trustee to withhold funds for a beneficiary with a disability rather than pay them out directly.

But that could be water under the bridge, and there are still steps you can take now to protect your wealth and qualify for benefits when needed. My father has died and I want to entrust my inheritance. In which state should I hire an estate planning attorney?

Brian Lowry

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