Due to a 2017 Decision by the Supreme Judicial Court of Massachusetts, Almost All Trusts and Deeds Must Now Be Reviewed and Reconsidered

In the 2017 case of Mary E. Daley v. Secretary of the Executive Office of Human Services, which I argued at the Supreme Judicial Court of Massachusetts, there was one narrow Medicaid trust issue that we won, but the Court opened Pandora’s Box with its needless commentary on issues that weren’t even before the Court, and lawyers at the Office of Medicaid are sure to exploit this commentary and attack trusts and deeds. Therefore, if you have ever executed an irrevocable trust or a realty trust in an attempt to protect assets, you need to have the trust reviewed immediately, and if you ever deeded real estate or transferred a mobile home to others, the deed or assignment needs to be reviewed and discussed with an elder law attorney.

Any change or repair to the trust or deed may not be safe for five (5) years, so there is some degree of urgency to get these legal instruments reviewed.  In particular, any trust or deed that mentions the possibility of making an appointment or gift to non-profit organizations or entities could be problematic.

In addition, even though the law regarding life estates has not changed, the Court strangely brought up an Idaho case in one of its footnotes and commented that a life estate may not protect a home from being attacked by MassHealth estate recovery. Therefore, any deed that has a life estate in it or where the original owner reserved the right to use and occupancy could end up not being as safe as may have been previously thought, and all such deeds need to be reviewed and discussed with an elder law attorney. Those deeds may be only one step ahead of a change in law, and it may make sense to make a change that gets you two steps ahead.

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