We all fall prey to procrastination when it comes to making difficult decisions in our lives. No one really enjoys considering the fact that they might become incapacitated one day or that they will eventually die. But a reluctance to consider these events does not make them any less likely to impact our lives. At Konowitz & Greenberg, we appreciate that making an estate plan can involve some of the most important decisions we make in our lives. Regardless of the size of the estate, we strive to make the process a positive and educational experience for our clients. We sit down with our clients and help them through each step of the process; not only with their decision making, but also to ensure they understand the documents they are signing.

Estate planning is an opportunity to seize control of your own destiny. Planning your affairs now gives you the peace of mind that not only will your children be protected and provided for, your wealth will pass on to your intended beneficiaries without unnecessary delay. Having your affairs in order will also benefit your family by relieving them of burdensome decisions and administrative tasks during a very difficult time. There is no need to procrastinate any further. Give us a call!

All fifty (50) states, as well as the District of Columbia and the U.S. Virgin Islands are members of the Compact. Each state has codified the ICPC into state law and has a designated Compact Administrator which oversees the process of interstate placements. In Massachusetts, the ICPC is administered by the Department of Children and Families (“DCF”) and regulations governing the ICPC can be found at 110 CMR 7.500 through 7.523, a copy of which is attached.

For the purposes of an adoption, it is illegal to move a child across state lines without meeting the requirements of the ICPC. If a child is born in one state, commonly known as the “sending state” and the adoptive family lives in another state, called the “receiving state”, the adoption placement must be approved by the ICPC. Note, however, that the ICPC does not apply to the sending or bringing a child into a receiving state by his or her parents, step-parent, grandparent, adult brother or sister, adult aunt or uncle, or guardian and leaving the child with any such relative or non-agency guardian in the receiving state.

Responsibilities of sending and receiving States delineated in ICPC include completion of home studies for prospective foster and adoptive parents, supervision of children in interstate placements, legal jurisdiction of cases (which affects both courts and child welfare agencies), financial responsibilities, and reporting requirements. ICPC also outlines procedures for States to follow regarding communication among caseworkers and ICPC administrators in two States, often involving numerous staff in various agencies.

A child may not be taken from one state to another until both the sending state and the receiving states’ ICPC offices have given approval for the placement of the child. First, the sending state must notify the receiving state of its intention to place a child across state lines. This requires the sending state to complete certain forms, including the Interstate Compact Placement Request (ICPC 100A) and extensive documentation. The documentation submitted to the ICPC for approval includes the adoptive parents’ home study, the child’s birth information and other health information, biological information on the birth parents, and relinquishment or termination documentation from the birth parents. Documentation for the child and the adopting parents will be forwarded to the ICPC office in the sending state which will forward the documents to the ICPC office in the receiving state. The ICPC offices review the documentation to verify compliance with their state laws and regulations and make a determination to either approve or deny the placement.

If approved, procedures are initiated to place the child in the receiving state. On average, the processing time from 100A submission to final approval is approximately six days; however, this timeline may vary significantly depending on the completeness of the application. The ICPC process can be complicated and is fact driven. It is not unheard of for an adoptive couple to live in a hotel for several weeks with a new infant pending ICPC approval before returning to their home state. The consequences for failing to comply with the ICPC can be quite severe, including returning the child to the sending state and/or setting aside an adoption. For these reasons, it is highly recommended that adoptive families hire an adoption professional such as adoption attorney or agency to assist with the ICPC process. A proactive attorney or agency can ensure that all necessary requirements are met in a timely manner and avoid the traps of the unwary.

After the ICPC approval, the next step in the process is the adoption finalization. In Massachusetts the child is required to be placed with an adoptive family for six months prior to finalization. Prior to finalization the sending state maintains responsibility for and jurisdiction over the child. Once the child is legally adopted such responsibility is terminated.

The ICPC is currently under revision to reflect updated laws and technology and to better serve its original intent. A new version has been presented to states for ratification and will become law once 35 states have adopted it.

B. Dealing with Conflicts Between State Laws
When ICPC was developed, each participating state joined by passing the same set of laws supporting and specifying the administration of the compact in that state. However, each state had already passed its own laws on child placement and adoption, and these laws have continued to evolve independent of ICPC. This often create conflicts between states involved in an interstate placement as each has a different understanding of the steps required to approve a family as a foster or adoptive family. Two sets of state laws and two judges in two states, each interpreting their own state’s laws (including ICPC laws), lead to inconsistencies and occasional conflicts between sending and receiving states. Because there are no Supreme Court decisions regarding ICPC application, there is no judicial resolution regarding differences in state laws and interpretations of ICPC provisions among member States, further complicating the inter-jurisdictional placement process.

Several problems also have arisen with implementation of the ICPC, including the absence of consistent, clear standards for home studies to assess prospective adoptive families; the lack of enforceable time frames for initiating and conducting evaluations of potential adoptive families; processes for mediating differences between states; and the financial responsibilities of sending and receiving States, such as medical coverage, support services, case supervision, home studies, and special educational costs.

C. Navigating Multistate Adoption Procedures
In an interstate adoption, the birth mother and child reside in a different state than the adoptive family, and the child is taken from one state to another state for the purposes of an adoption placement. There are several variables at play because not only must the ICPC requirements be met, but the legal requirements for each state must also be met. One must navigate multistate adoption procedures with experience, patience, and many times a sense of humor, to ensure a successful interstate placement.

First, unless there is no process to terminate the rights of the birth parents in the sending state, the ICPC prefers, and with some states, insists, that the parental rights be terminated in the sending state. An example of when no procedure exists to terminate parental rights is when some states terminate only in conjunction with the finalization of the adoption. In such instances, the court may not have jurisdiction to terminate the rights, alone. In such cases, Massachusetts may be the state that finalizes. The process involves the birth parent(s) waiving their respective rights under the sending state and submitting to the jurisdiction of Massachusetts for the purposes of terminating their rights in accordance with Massachusetts law. The birth parents must have independent representation to advise them of their rights which they are waiving and be fully informed of the implications of Massachusetts law. The birth parents must sign a jurisdictional statement, acknowledging their full understanding of the implications of the waiver; the voluntariness of their waiver, and that they have been advised by independent counsel.

Part and parcel to the voluntary submission to the jurisdiction of the laws of Massachusetts is the assurance that the birth parents have received all relevant services, as required under Massachusetts law, which may be different from their home state. An excellent example is the allowance of certain birth mother expenses. Massachusetts has strict requirements regarding the payment of expenses.

On the other hand, if, there is no waiver, and the rights are being terminated in accordance with the sending state, the key factor, is complying with the services of the sending state. The sending state may not allow for any birth parent expenses to be paid, or only certain ones, or have no regulations at all.

Massachusetts ICPC wants to ensure that the parental rights have either been fully terminated, or steps have been taken to do so. Meeting that requirement may mean a legal letter of opinion from the attorney of the sending state, and a docket number and copy of the petition, should surrenders or consents not have been signed. In anticipating a case where there may be an unusual circumstance that may require more than the standard ICPC checklist, good practice would be to call the Massachusetts ICPC office to ensure preparation of any further documentation.

Another important factor is the timing of the signing of the surrender, or consent and its consequences. Massachusetts requires at least 4 calendar days pass after the child is born before the surrender may be signed. Thereafter, there is no revocation period. Other states have other time requirements, and many may allow for a revocation for a certain period of times. Some states require no standard to revoke the surrender, while others do.

In all circumstances, one should not “avoid” the ICPC. Consequences may include penalties, fines, loss of the agency’s license, and in some circumstances, the return of the child, and jeopardizing the finalization of the adoption. Above all else, do not cut corners when handling an ICPC case. If the adoption starts to unravel, having a case properly approved by the ICPC can only help.

Massachusetts is an agency state which means that only licensed adoption agencies may legally place children for adoption. Families residing in Massachusetts seeking to adopt a child must utilize the services of private adoption agency licensed by the state or DCF, regardless of where the child is born. The Department of Early Education and Care (“EEC”) which regulates adoption agencies, requires, at a minimum, that interested families have a home study conducted by a Massachusetts licensed adoption agency. These agencies may provide for private domestic or international adoptions, or they may contract with DCF to provide services for adoptions from foster care.

Placement of a child by an agency is not required if any of the following apply:

1. The petitioner is a blood relative of the child to be adopted;
2. The petitioner is a step-parent of the child to be adopted; or
3. The petitioner was nominated in the will of a deceased natural parent of the child as a guardian or an adoptive parent. M.G. L. c. 210, §2A.

Private placement adoptions are fee-based and vary depending on the type of adoption and the agency. Some agencies are full service adoptions which for one comprehensive fee provide services such as advertising, matching expecting parents and/or children after birth with prospective adoptive families, conduct a home study, post placement visits with the adoptive family, services related to the Interstate Compact for the Placement of Children (“ICPC”) and adoption finalization. Other agencies charge “a la carte” fees for each service based on the needs of each family. Therefore, it is critical to fully understand the fee structure of an agency before beginning the process of adoption.

M.G. L. c. 210 §11A, authorizes only adoption agencies licensed in Massachusetts to search for or locate a child for adoption, as well as place a child in Massachusetts, and accept consideration or payment for placing a child. This means that Massachusetts attorneys are prohibited from direct involvement to place, advertise and search for a child, but are not prohibited from networking or referring a family to sources who can assist a family in finding a child to adopt. Not even prospective adoptive parents can advertise for a child to adopt in Massachusetts. Unlike Massachusetts, some states permit attorneys and facilitators to engage in these services. A few notes of caution. Facilitators who match children with families are not agencies, nor are they licensed. Fees charged by attorneys and facilitators outside of Massachusetts are not regulated. In addition, facilitators and attorneys outside of Massachusetts do not always know or understand the Massachusetts adoption requirements which is why having a Massachusetts adoption attorney guide you through the process is critical to a successful placement and eventual adoption.

An experienced attorney can anticipate and help to avoid certain dilemmas and complications, and guide a family toward an agency and resources that meet their needs. There are many issues that may present themselves in the course of an adoption that could result in a failed placement or a disruption. For example, adoption involves the termination of the birth parents’ rights. In some cases both birth parents participate, and in other cases, only the birth mother is involved. The birth mother may not have named the birth father, the birth father may be unknown or the named birth father may not be the biological father, despite the representations made by the birth mother. In addition, a birth parent’s rights in one state often differ from a birth parent’s rights in Massachusetts. Each of these situations presents a potential legal risk to the adoption and security of the placement. An adoption attorney will not only able to ensure that the proper steps are taken, but also is in a position to advise the adoptive family and/or agency of the risks involved and whether to proceed with the placement.

A Massachusetts adoption attorney can also help a family seeking to adopt outside of Massachusetts. First, an experienced attorney may be able to recommend a particular agency, attorney or intermediary out of state and then work closely with those resources to ensure the family is protected in the process. Second, if a family decides to advertise on its own outside of Massachusetts, since Massachusetts does not permit advertising, it can be done only in states that permit advertising. An attorney can provide guidance to ensure the family stays in compliance with the relevant laws regarding advertising. Third, if the adoptive family locates a birth mother or birth parents that are looking to make an adoption plan, the attorney may be able to refer the birth parents to an attorney and/or agency in their home state to navigate the adoption process in that state, including compliance with the Interstate Compact on the Placement of Children (“ICPC”).

B. Venue: Why It’s So Important?
Venue is important because it is the venue that will determine what law applies, and whether the court has the authority to act on the adoption. Massachusetts allows for out of state adopters to finalize the adoption in Massachusetts, so long as the agency, that has custody of the child, is a Massachusetts licensed adoption agency. Many other states have the same policy. Venue is also critical, so as to not give the appearance of “forum shopping” or attempting to thwart the rights of either of the parents, particularly the birth father. Unscrupulous attorneys have been known to “whisk” an expectant mother out of one state to another, merely to avoid giving notice to the expectant father. States vary in how one may receive notice, and under what circumstances. There have been cases where attorneys have been disbarred, adoption agencies closed involuntarily, and children ordered back to the birth parents, because of improprieties which disguised forum shopping.

C. The Crucial Element of Consent
Consent refers to the agreement by a parent, or a person or agency acting in place of a parent, to relinquish a child for adoption and to release all rights and duties with respect to that child. Adoption is meant to create a permanent and stable home for a child. Therefore, a validly executed relinquishment and consent to adopt is intended to be final and irrevocable. As a result, the right of a birth parent to revoke consent is strictly limited.

In Massachusetts a consent is irrevocable upon signing. M.G. L. c. 210 §2 specifies all the requirements for consent in Massachusetts. While each state has its own unique requirements, most states require that the consent be in writing and either witnessed and notarized. In Massachusetts, the parent(s)’s consent must be signed in front of a notary public and in the presence of two competent witnesses. Id. The notary public may be affiliated with an adoption agency. The consent is not involuntary or irrevocable if the notary public who executed the consent is also employed by the adoption agency. The consent is considered effective if given voluntarily and based on a full understanding of all the facts necessary to consent. Adoption of Thomas, 559 N.E.2d 1230, 1990.

Generally, the birth mother and the birth father, if he has properly established paternity, hold the primary right of consent to adoption of their child. Either one or both parents may have these rights terminated for a variety of possible reasons, including abandonment, failure to support the child, mental incompetence, or a finding of parental unfitness due to abuse or neglect. M.G.L. c. 119 §24. In Massachusetts, an adoption decree will not be entered regarding a child born to an unmarried mother without the mother’s consent. In re Adoption of a Minor, 178 N.E.2d 264, 1961; Adoption of Derrick, 614 N.E.2d 987, 1993. The birth father has certain due process rights regarding notice to potential adoption proceedings. Adoption of Alex, 562 N.E. 2d 78, 1990. There is no age requirement limitation on the consenting parent. A minor child who is at least twelve years old may legally give and withhold consent to a proposed adoption. M.G. L. c. 210 §2; White v. Laingor, 746 N.E.2d 150, 2001. Although there is no limitation on the minor parent, the judge may consider the minor parent’s maturity level and level of understanding and a guardian ad litem may also be appointed to represent the minor parent. Adoption of Thomas, 559 N.E.2d 1230, 1990.

Once a child is surrendered for adoption, no adoption may occur without the consent of the Department of Social Services (now known as DCF), unless the petitioner is a blood relative. Adoption of Derrick, 614 N.E.2d 987, 1993. The mother’s consent cannot be coerced. If she retained her mental faculties and understood the legal effects of her decision at the time of the consent, withdrawal of the consent will not be permitted at a later date. Adoption of Thomas, 559 N.E.2d 1230, 1990. The only way to withdraw consent made with a complete understanding is with permission from the probate judge. Adoption of Derrick, 614 N.E.2d 987, 1993.

Without either the proper termination of parental rights, or consent, in accordance with applicable law, there can be no adoption. Adoptions have been known to be set aside, because the consent of a necessary party, and/or proper notice to that party was not given.

D. Exploring Other Adoption Alternatives
1. When and How to Use Independent Options
An independent adoption is an adoption that takes place without the involvement of a licensed private or public agency. The prospective adoptive parents are advised by an adoption attorney, instead of working with an adoption agency. Typically, the prospective adoptive parents take an active role in identifying a birth mother, usually by networking, advertising, or through the internet, and the birth parents give their consent directly to the adoptive parents. Massachusetts is one of a handful of states that prohibit private placement of children with adoptive parents to whom the children are not related. M.G.L. c. 210, §11A. Therefore, independent adoptions are not an option in Massachusetts.

2. Circumstances when it’s Appropriate to Adopt an Adult
There may be times when it is appropriate to adopt as an adult. The greatest advantage of doing so, besides the love and kinship felt, is that the adult adoptee needs no consent from either legal parent to be adopted. Some adopt later in life to memorialize the true parent/child relationship that has blossomed over the years. Others adopt their step-children for inheritance purposes. This is often endorsed by judges who recognize the significance of a legal parent/child relationship in the face of potentially confrontational family relations.

3. Guidelines for Adopting Relatives
Although the statute does not require a home study or a licensed agency be involved in the adoption of a step-child, or blood relative, it makes sense to go through the process for several reasons, all of which are in the best interests of the child. First, it is important to confirm that the adopter is free of any criminal behavior that could put the child at risk. Second, the home study process allows the adopter an opportunity to explore his/her reasons for adopting, to ensure that this is an appropriate step for all concerned. And, often times, the adoption may be the result of a family member having a child out of wedlock, and another choosing to raise the child as his/her own. An adoption professional, skilled in counseling, can assist all family members is establishing a plan for success and address many questions, which, at first, may appear to be uncomfortable, but should not be swept under the rug.

E. Understanding Step-Parent Adoptions
In addition to the above, it is important to remember, that step-parent adoptions require the consent of the legal parent, unless deceased. Psychologically, the legal parent may resist, for fear of being regarded as a “bad” parent, regardless of his/her involvement or lack thereof. If appropriate, this may be an excellent opportunity for all to consult an adoption specialist, versed and experienced in the many conflicting emotions to assist all of the parties in putting the child first.

F. Examining and Ensuring Foster Parent Rights
A foster parent provides temporary care of a child who is either in the custody of DCF or an adoption agency. Custody of the child remains with the agency, leaving the foster parent with very limited rights. Where a child is in the custody of DCF and is removed from a foster home, the foster parent or a pre-adoptive parent may have a right to an administrative fair hearing or to file a grievance. See 110 CMR 7.113, 7.113A and 110 CMR 10.06. Foster parents may be entitled to a hearing before a child is removed from their home. If so, the court must determine the child’s best interests by reviewing specific case circumstances such as length of time in the home and the foster family’s suitability. Cennami v. Department of Public Welfare, 363 N.E. 2d 539 (Mass. Ct. App. 1977).

The Adoption and Safe Families Act of 1997 (“ASFA”) is a federal law intended to improve the safety of children, to support families, and to facilitate and expedite placement in adoptive and other permanent homes for children who need them. Under ASFA, foster/pre-adoptive parents including relative caregivers have a right to notice and the opportunity to be heard by the court regarding the children in their care. The new law requires notification of foster/pre-adoptive parents and relative caregivers of court permanency hearings and trials involving the child. However, while ASFA confers additional rights to foster parents as it relates to notice and an opportunity to be heard in a legal proceeding, a foster parent is not made a party to the proceeding itself. Any involvement in a contested matter is left to the discretion of the judge. Regardless of how long the foster parents may have been parenting the child; whether the child was placed with the permission of one of the parents, or the expectation that the placement was for the purposes of adoption, neither or any other law conveys an automatic right of intervention in any action concerning the child in their care. At best, given the facts of the case, the foster parents may file a Petition for Declaration of De Facto Parentage, to secure any of their rights.

Highlights for 2011 and 2012 are as follows:

1. The exemption amount increases to $5 million per person for federal gift, estate and generation skipping transfer taxes ($10 million for a married couple);
2. The top marginal federal gift, estate and generation-skipping transfer tax is reduced from 45% to 35%, and a full “step-up” in basis rule applies for all assets included in a decedent’s gross estate;
3. “Portability” of unused estate tax exemption in the estate of the first spouse to die, thereby allowing the surviving spouse’s estate to take advantage not only of his or her own exemption but also any unused portion of the exemption of his or her spouse.

Since this Act is only good for 2011 and 2012, if Congress fails to act to extend this law then, on January 1, 2013, the federal gift, estate and generation skipping transfer tax exemptions revert back to $1 million and the top tax rate of 55% returns. Because the Act is only temporary, it is a good idea to review your current estate planning documents to make sure they still accomplish your desired goals. While no changes may be needed for some, for others there may be planning opportunities to take advantage of. If you do not have an estate plan or have not reviewed your current estate plan in at least 5 years, I urge you make an appointment to come to our office for a no-fee consultation.

Whether or not your estate may be subject estate taxes, do not miss out on the opportunity to plan for how and when your assets are distributed upon your death, avoid probate, limit claims of creditors and minimize disputes among family members.

When business owners work hard over many years to create a business that generates wealth for them and their families, more often than not, the business is the owner’s most valuable asset. More importantly, however, the owner is also the business’ most important asset. That is, the value of a small business very often lies within the owner’s experience, contacts and specialized skills.

These facts raise several questions. First, what happens to the value of the business when the owner or other key employees are no longer there? Second, when the owner is ready to exit the business, how does he or she extract from the business the value and wealth he or she has created? The answer is a business succession plan.

The objective of a business succession plan is to successfully transition the business from existing owners to new owners, and to protect and/or extract the business’ wealth created by the departing owners. When the current owners are no longer working for the business, either due to retirement, death or disability, a carefully prepared business succession plan, based on the needs and goals of the business owner, ensures continuity for business operations and continued financial security for the departing owners and their families.

For some businesses, the successor owner will be the owner’s business partner, the owner’s children, or perhaps a group of key employees. For others, it will be a third party. In all of these situations, though, the most effective kind of business succession plan is generally one that is integrated into a client’s estate plan, because succession planning invariably touches upon estate, tax, real estate and retirement planning.

If you want to protect the success of your business and provide for your family’s financial well being in the future, then a well thought out and executed business succession plan is imperative. If you have questions about succession planning, please contact Arlene Kasarjian.

While DCF does important and valuable work, it unquestionably makes its share of mistakes. Would you know what to do or where to turn if an anonymous report of abuse or neglect of your children was filed against you? Even worse, what if DCF filed a petition in court alleging your unfitness to care for your children? Parents confront this nightmare every day in the Commonwealth of Massachusetts.

I have firsthand experience with DCF, having represented DCF in child custody cases for many years in Boston. Recently, I was able to utilize my experience to help a mother regain custody of her daughter, who had been placed in foster care, after a ten year battle with DCF. When I became involved, the child had been out of her mother’s care for over five years and DCF was making plans to find a long-term guardian, rather than reunite my client with her daughter. Despite an established bond between my client and her daughter, and my client’s willingness to comply with everything asked of her, DCF portrayed my client as incapable of meeting the emotional and physical needs of her daughter.

The reality was DCF never gave her a chance to show that she was fit to parent her daughter and capable of meeting her daughter’s needs. I challenged DCF’s outrageous conduct and petitioned the court for review of the case. Ultimately, with a concrete plan in place, my client proved the naysayers wrong. Her daughter returned home with the blessing of DCF and the case was dismissed from court.

The first is a Supplemental Needs Trust, the purpose of which is to enhance the disabled child’s standard of living and quality of life without jeopardizing the disabled child’s eligibility for public benefits in the present or in the future. The trust is funded and controlled by a third party, such as a parent or grandparent, not the disabled child. By means of a lifetime gift into the trust or a gift into the trust upon the death of a parent or grandparent, this trust can be funded with any type of asset, including life insurance, bank accounts, investment accounts, real estate, stocks, bonds or other securities.

Funds in a Supplemental Needs Trusts are used literally to supplement the daily essential needs of the disabled child, and therefore cannot be used for the necessities of life such as food, utilities, clothing or shelter. However, the funds may be used to provide “nonessential” items such as medical or therapeutic care not covered by public benefits, vehicles and related expenses, expenses for travel, educational or vocational training, educational camps, vacations, computers and cell phones.

The second type of trust is a Special Needs Trust which his designed to preserve a disabled child’s public benefits, protect funds that have come into the child’s name and provide a trust fund which can be used to enhance the child’s standard of living or quality of life. The Special Needs Trust differs from the Supplemental Needs Trust in that a Special Needs Trust contains assets already owned by the child, whereas in a Supplemental Needs Trust assets are never owned by the child because they are retained and managed in the trust at the outset.

Funds for a Special Needs Trust can come from inheritance or gifts in the name of the child or settlement proceeds from a personal injury or medical malpractice lawsuit. The funds are used substantially in the same way as the Supplemental Needs Trust as outlined above but there are more restrictions. In addition, upon the death of the child the trust must use any remaining funds to reimburse or “payback” the state for public benefits provided to the child during his or her life.

If you would like more information about these trusts or estate planning for disabled children please contact me.

1. The IRS permits you to give $13,000 in cash or other assets per year to each of as many individuals as you want without having to worry about the gift tax. Spouses can combine this annual exclusion to jointly give $26,000 to each of as many people as they like, tax-free. For example, a couple with an adult child who is married and has two children could make a joint cash gift of $26,000 to the adult child, the child’s spouse and each grandchild—four people—providing the family with $104,000 a year. If some of the recipients are minors, their portion of the gift may have to go into a custodial account that designates an adult to oversee the money, generally until the child reaches age 21. Be aware that if you name yourself as the custodian, the funds could be considered part of your estate. Instead, you should name the child’s parent, or some other person, who can use the money to purchase items or services for the child.

2. You can invest money in Section 529 education savings plans for your children, grandchildren or other relatives. Establishing these plans for relatives could relieve your children or grandchildren of the need to save for college at a time when they may be overwhelmed with current expenses. You can set up a separate account for each family member you want to benefit. Although your contributions to a 529 account are considered gifts, there are two unusual benefits: money in these accounts grows tax-free and it can be withdrawn tax-free, provided it is used to pay for college, a graduate, vocational or another accredited school, or for related expenses.

3. The IRS also permits lump-sum deposits of as much as $65,000 to a person at once ($130,000 for married couples), as long as you file a gift-tax return that treats the gift as if it had been spread over five years. However, if you die before the five years is up, the part of the gift that reflects the number of years remaining will be considered part of your estate. Also, if you need the money yourself, any earnings that are withdrawn are subject to income tax and a 10% penalty.

4. Without using your annual $13,000 exclusion, you can pay for tuition, dental and medical expenses of anyone you want as long as you make the payments directly to the providers of those services. This is an effective way to help family members with increasing tuition costs, whether for preschool, private school or college or even health care expenses, including health insurance premiums, orthodontia, medically necessary home improvements or home-care attendants.

5. You can lend money to family members at favorable rates as long as you formalize the loan. If you lend money to family members, for example to buy a house or a car or start a business, you have to charge a minimum rate of interest set each month by the Treasury, called the Applicable Federal Rate, to avoid potential gift tax and income tax consequences. Recently, the rate for long-term loans (those lasting more than nine years) and requiring monthly payments has been an extremely attractive rate between 4 and 5%. That’s less than your family members would have to pay for a bank loan, assuming they could get one in today’s tight credit market, but more than you could earn from CDs or money market accounts.

Gifting now when you are alive may leave less for inheritance, but you receive the immediate benefit of reducing your taxable estate while giving money to the people you love when they need it most.

In order to provide for the transfer of property or the nomination of a personal representative of the estate, a Will must be declared valid by the Probate Court. In Massachusetts, 96% of all estates that are probated are uncontested and yet must be formally probated; a costly and time consuming process that is overseen by a judge. Formal probate requires the issuance of a citation, service of process and publication, which can easily delay the appointment of an executor or administrator to manage the assets of the estate for up to six months. Furthermore, the Court must approve interim and final accountings of the assets of the estate before the estate can be closed.

In contrast, under the new Code, estates that are relatively routine and involve no controversy will be administered through an informal probate procedure overseen by a court magistrate.

Under the new rules, a person seeking informal probate and appointment as a personal representative of the estate must give at least seven days notice of the petition to probate the Will to all interested parties. If the petition is satisfactory, and there are no objections, the court magistrate will grant the petition and appoint the personal representative to manage the affairs of the estate, effective immediately. After the appointment, the personal representative will administer the estate virtually free of court supervision. Rather than file accountings with the court for approval, the estate can be closed once the personal representative files a sworn statement with the court that debts, expenses and taxes have been paid and distributions have been made to the persons entitled to them. The Code still provides for formal probate proceedings in the event an objection is made by an interested person to the Will or to the proposed personal representative.

For those dying without a Will, the Code, among other improvements, gives the surviving spouse a larger share than is provided for under current Massachusetts law. In addition, the Code imposes time limits on the administration of informal and formal probate proceedings to provide closure to estates, rather than allowing them to linger on unresolved. There is no question that the changes in probate procedures under the Code will save the vast majority of estates substantial amounts of time, money and frustration.

Prior to enacting the new Probate Code, when a person was incapacitated, Massachusetts law permitted the court to appoint a guardian to have custody of both the person and the property of the incapacitated person. The Probate Code, however, makes a clear distinction between guardians and conservators to eliminate the inherent problem of having one person exert total control over another person’s life. Now, a guardian may be appointed to have custody exclusively of the person, while a conservator may be appointed to have control only over the property of the incapacitated person.

Under the Probate Code, a guardian is directed to make decisions regarding the incapacitated person’s support, care, education, health and welfare. When an incapacitated person needs help managing property or business affairs, a conservator will be appointed. In the event that an incapacitated person needs medical and financial assistance, a court may appoint both a guardian and a conservator under separate petitions only after demonstrating the need for both types of protection.

Since the granting of a guardianship and/or conservatorship deprives a person of certain fundamental rights, the Probate Code recognizes the need for a right to counsel and for the appointment of a guardian ad litem to investigate the condition of the person subject to a protective proceeding. The incapacitated person also has a right to be present at any hearing in person, to present evidence, cross-examine witnesses and to nominate his/her own guardian or conservator. Additional new protections for the incapacitated person include not only requiring courts to spell out the specific duties of an appointed guardian or conservator, but also placing certain limits on their authority and providing judicial oversight on an ongoing basis.

The Probate Code also includes several changes related to the guardianship of minors.