WHY IS ESTATE PLANNING MORE IMPORTANT FOR UNMARRIED INDIVIDUALS AND ONLY CHILDREN?

My parents, like most older parents, believe that having a will or an estate plan is somehow saying that they are ready for death.  The truth couldn’t be more further from the truth.  If someone dies without a will, it's called an ‘intestate estate’.  In which case, the heirs of the decedent will be determined according to a state statute, often called a ‘Statute of Descent and Distribution.’  The statute outlines who gets what; from spouse, to children, to siblings, to parents and grandparents.  They often even allocate certain shares in the event there are several competing heirs. 

Unmarried Individuals and those without brothers and sisters beware!  As they approach a seasoned age, their heirs and descendants are aging as well.  If their closest heirs predecease them, then the number of close and preferred competing heirs leave the pool of candidates.  And, more remote and ‘less familiar’ family members enter the pool of candidates.   

Believe it or not, intestate estates are public record and constantly monitored by professional genealogists, who use their skills to evaluate family trees and sell their findings to databases, marketers and yes, even attorneys.  In the world of money and death, it’s not terribly uncommon that a family member that has never met the decedent, come forward and assert a claim against an estate.  Sometimes, these claims are successful.  And, can even wipe out a first cousin who is competing against a half blood uncle claiming a closer statutory relationship through a grandfather that was married several times and fathered children by both wives (half-bloods take the same as whole-bloods in Massachusetts).  The simple result is that dead people’s money doesn’t always go where they intend it to go, or in the alternative. where it should go.  As a last resort, monies can escheat to the state.

Plan now for your future.  Consult a legal professional about a will or planning for your future. If you have any questions, please feel free to contact us anytime.


Jonathan J. Moriarty, Esq.

Law Office of Jonathan J. Moriarty

53 South Main Street, Ste. 3

Randolph, MA 02368

Telephone: (781) 961-2200

Facsimile: (781) 961-0017

Email: jjmoriarty@verizon.net

Website: http://www.attorneymoriarty.com

5 TIPS ON HOW TO MAKE THE MOST OUT OF AN ATTORNEY CONSULTATION

Lawyers, like doctors, often have to dish out bad news.  Bad news may be delivered during any stage of a legal matter however, it often seems to be given out and digested poorly upon an initial consultation with a lawyer.  Let’s face it, most consultations with a lawyer are precipitated with a very personal or traumatic event (arrest, bankruptcy, eviction, personal injury, etc…).  Every lawyer has a particular and unique style.  Some are straight shooters, while others tend to be vague in their analysis.  In order to get the most out of your legal consultation, you must prepare yourself for all possible outcomes.  Here are my 5 simple tips to making the most out of your initial meeting:

 

1.      MAKE NOTES PRIOR TO YOUR MEETING: Memories fade over time.  There is little worse than remembering a particular fact or event after a consultation is over and you’re driving in the car on your way home.  One simple fact or circumstance may change the outcome of your case.  Reduce your story to some handwritten notes.  Make notes of particular facts, circumstances and questions that you wish to discuss with your prospective attorney. Arrive prepared with the important documentation and other resources. (Note: don’t surrender your notes to the attorney you have not hired; don’t make copies; and, clearly mark on the notes that they are ‘privileged notes specifically drafted for the purpose of consulting with your lawyer’ – in some cases, notes may become subject to discovery in future litigation).

2.      EXPERIENCE: Don’t be afraid to ask an attorney what kind of experience he/she has in your kind of matter.  Judge an attorney based on his depth of knowledge and not by physical appearance alone – some of the fiercest and most successful attorneys I know have food on their ties and poor taste in fashion.

3.      TRUTH:  You can make a cake without flour, but it’s certainly not going to taste right.  In my experience, sometimes individuals lie to their attorney, omit facts or sugarcoat their story.  The reasons may vary from protecting the identity of another to outright fabrication for personal or unlawful gain.  Although there is no excuse for the later, this doesn’t help anyone.  Fibbing or sugarcoating may make you feel better, but it’s not going to allow your attorney to frame a proper legal picture of your argument(s).  Attorneys often have a fair sense of reality and can sniff out the truth.  Don’t waste your time in a consultation unless you are willing to answer the tough questions.

4.      PUT ON YOUR THICK-SKIN:  Most attorneys are empathetic and sincere to a point, but at some point, we need to take the emotion out of the situation to provide a realistic analysis.  Often, individuals are put off and formulate an opinion that the attorney was ‘insincere’ or ‘combative’.  Attorneys like to cross-examine people.  We are doubters by nature because we need to see both sides of the story. We ask a lot of questions which simply require a ‘yes’ or ‘no’ answer.  We don’t necessarily require an independent explanation for every question.  It helps to understand that in a consultation, attorneys are not only listening to your facts, but also applying the law to your facts; assessing your credibility; assessing your potential for success in litigation; gathering possible sources of evidence; assessing what needs to be done to investigate your matter; and, trying to assess the costs of your matter. 

5.      BE COURTEOUS.  My mother always told me ‘you attract more flies with sugar than you do with vinegar.’ Arrive on-time, dress appropriately and simply be nice.  Sometimes it’s difficult given the particular circumstances however, a smile goes a long way.  Personally, I am more willing to give my time and go the extra mile when I sense that someone is serious about their matter and appreciates my time and input.  Always ask in advance if there is an initial consultation fee.  Most attorney’s don’t charge a consultation fee but again, it’s nice to be asked as it is a reflection of courtesy.  Always confirm that your communications are privileged with the attorney.  Always ask the attorney’s hourly rate and whether your matter may be ‘flat rated’.  Lastly, always obtain a fee agreement in writing with any attorney you retain, it’s the law.

Jonathan J. Moriarty, Esq.

Law Office of Jonathan J. Moriarty

53 South Main Street, Ste. 3

Randolph, MA 02368

Telephone: (781) 961-2200

Facsimile: (781) 961-0017

Email: jjmoriarty@verizon.net

Website: http://www.attorneymoriarty.com

 

 

THE AMERICAN DREAM: SOME FAQ'S OF HOME OWNERSHIP

Why should I buy instead of rent?

A home is an investment. When you rent, you write your monthly check and that money is gone forever. When you own your home, you can deduct the cost of your mortgage loan interest from your federal income taxes and usually from your state taxes. You can also deduct the property taxes you pay as a homeowner. In addition, the value of your home may go up over the years, building equity for you.

How do I know if I am ready to buy a home?

You can find out by asking yourself a few questions:

􀁦 Do I have a steady source of income? Have I been employed on a regular basis for the last 2-3 years? Is my current income reliable?

􀁦 Do I have a good record of paying my bills? Do I have few outstanding long-term debts, like car payments?

􀁦 Do I have money saved for a down payment? Do I have the ability to pay a mortgage every month, plus additional costs?

 If you can answer “yes” to these questions, you are probably ready to buy your own home.

What is title insurance and why do I need it?

A Title policy protects the policy holder from disputes over ownership and places the financial strength of a title insurance company behind the policy. An Owner’s Policy of title insurance protects the buyer against loss for title threats undiscovered at the time of closing and provides a defense in the event of claims against the title pursuant to the terms of the policy. Some examples include: missing probates; defective foreclosures; missing deeds; defective discharges and assignments; and, prior-owner liens.

How much money will I have to come up with to buy a home?

In general, you need to come up with enough money to cover three expenses: the earnest money (variable), the down payment (depending on the property between 3% and 20%), and the closing costs (usually between 3% and 7%).

In addition to the mortgage payment, what other costs do I need to consider?

Monthly utilities, property taxes, homeowners insurance, and maintenance costs are a few of the expenses to be considered. Additionally, there may be homeowner association or condo association dues.

How are pre-qualifying and pre-approval different?

Pre-qualification is an informal way to see how much you may be able to borrow. A pre-approval is the lender’s commitment to lend to you.
 
Should I use a Real Estate agent? How do I find a good one?
A good real estate professional can guide you through the entire process and make the experience much easier. All of the details involved in home buying, particularly the financial ones, can be mind-boggling. Start by asking your family and friends if they can recommend an agent. Look for an agent who listens well and understands your needs. The ideal agent knows the local area well and has resources and contacts to help you in your search.
 

Home-buying... the more knowledgeable you are about the process, the better prepared you are to make an informed decision. Once you think have found the home of your dreams, contact the Law Offices of Jonathan J. Moriarty provide the legal protection you need and the service you deserve.

Jonathan J. Moriarty, Esq.

Law Office of Jonathan J. Moriarty
53 South Main Street, Ste. 3
Randolph, MA 02368
Telephone: (781) 961-2200
Facsimile: (781) 961-0017
Email: jjmoriarty@verizon.net
Website:  www.attorneymoriarty.com
   

FAMILY LOANS

     My father once told me, "never lend money to family unless you never intend to be repaid." These wise words will always ring somewhat true. Family often presents an attractive vehicle to borrow money on very attractive terms. However, when the proverbial 'crap hits the fan' is when we all find out the density of blood. Over the years, I had the opportunity to counsel, represent, and litigate the many issues of money. Tens and hundreds of thousands of dollars is by no means considered 'nominal' consideration. Some of these loans have been for cars, businesses, houses, weddings, debts, and crimes. The issues presented are more than dollars and sense...they are emotional, passionate and contentious. But, what happens when the business fails; the debt re-accumulates; or, the marriage falls apart into a divorce? The loan is still the loan, right? Sometimes, the new circumstances create changed ‘feelings’ about the obligations of the debtor. Sometimes, lawyers get involved. And, sometimes, legal challenges may favor the debtor, which allow him/her to avoid their debt. Or even worse, the debt turns the relationship into something tougher than a two dollar steak.

     On the other hand, family loans between consenting parties may help build trust, improve relationships and create positive change. As with all contracts, all parties must fully understand the nature, consequences and details of the agreement. Expectations and intent must be clearly expressed and acknowledged.  Most importantly, the contract must be in writing and signed.  I strongly advise that the parties seek out the assistance of a lawyer and not simply download a form on the internet.  A lawyer offers a witness to the transaction; contractual language which complies with state laws; and, offers a formality to the transaction that stresses the importance of the loan for the parties. 

For some additional tips and information go to: http://www.moneycrashers.com/lending-money-family-friends/

Jonathan J. Moriarty, Esq.

Law Office of Jonathan J. Moriarty

53 South Main Street, Ste. 3

Randolph, MA 02368

Telephone: (781) 961-2200

Facsimile: (781) 961-0017

Email: jjmoriarty@verizon.net

Website:  www.attorneymoriarty.com

TENANT AT SUFFERANCE

     A Tenant at Sufferance is a "hold-over" tenancy after a lease has expired, but before the landlord has demanded that the tenant quit (vacate) the premises.  During a tenancy at sufferance the tenant is bound by the terms of the lease that existed before it expired. The only difference between a "tenancy at sufferance" and a "tenancy at will" is that the latter was created by agreement.  A Tenant at Sufferance may also be defined as a tenant which occupies a property against the intentions of the landlord, but subject to the tenant's right of possession.

     Most often, this issue arises as a result of a good faith purchaser for value at a foreclosure sale.  The Buyer purchases the property subject to the occupants.  The successful Buyer must bear the responsibility of taking the proper legal actions to evict the occupants.  The relevance to defining the status of the tenant is crucial because Tenants at Sufferance are entitled to very little notice prior to filing the complaint for eviction.  Not every tenant occupying a property purchased at foreclosure is a Tenant at Sufferance.  Massachusetts law requires a careful examination of many factors including, but not limited to the following: length of continued occupation; relationship to the prior owners; communications (written and oral) between all persons involved with the property; careful examination of the ‘‘Protecting Tenants at Foreclosure Act of 2009’’; and, the existence of a lease (current or expired).

     Failure to provide proper notice and abide by the laws of the Commonwealth may result in the dismissal of your Summary Process (eviction) action and a complete waste of your time, money and resources.  As always, I strongly recommend consulting an attorney prior to undertaking any legal action against an occupant or tenant.  If you have any questions, please feel free to contact me directly.

Jonathan J. Moriarty, Esq.

Law Office of Jonathan J. Moriarty

53 South Main Street, Ste. 3

Randolph, MA 02368

Telephone: (781) 961-2200

Facsimile: (781) 961-0017

Email: jjmoriarty@verizon.net

Website:  www.attorneymoriarty.com

THE FUTURE OF MORTGAGE LENDING IS TRENDING LOCAL

Let's face it, mortgage origination is a tough business! Federal and state guidelines are forcing mortgage lenders to be more particular, detailed and compliant. The costs of these new guidelines are forcing large mortgage lenders to either ‘fish or cut bait.’ In other words, spend the money to operate mortgage origination properly or get out of the business entirely. The risks of failure are too great for a company to marginally perform this operation: fraud; compliance; staffing and employment; inaccurate appraisals which result in overvaluation of mortgage security; mistakes in origination which result in unsalable loans on the secondary mortgage market; and, default and loan resolution.  All of the aforementioned issues are just a few of the huge potholes in a daily operation of a mortgage lender.

A few examples of this trend may be seen by looking at Bank of America and Wells Fargo.  Both lenders have announced that they are decreasing their mortgage origination divisions.  They are trending towards national origination centers to largely service their existing pool of assets.  They’re decreasing the overhead generated by their local branch offices and focusing on streamline refinances and purchase mortgages for existing customers. And, this makes sense because they already have an existing relationship with customers that have a level of past performance and a positive history of payments - which directly reduces the level of risk of default.  Last year, Bank of America announced that it was exiting the wholesale mortgage business entirely.  At the same time, J.P. Morgan Chase announced that it would no longer purchase loans originated by Brokers, as they believed that loans generated internally far outperformed the purchased loans from Brokers.  It’s not unreasonable to assume that Wells Fargo and other large national lenders will eventually follow suit.

Servicers are large institutions that purchase loans from other originating banks and lenders.  Their goals are to profit from the long term income from mortgage payments, which is a combination of principal and interest. And, if you’ve ever seen a Truth-in-Lending form from a typical loan transaction, then you understand that there is a large amount of money involved in the long term servicing of loans.  The higher the interest rate, the higher the interest profit-yield. Some types of loans purchased even come with a warranty insofar as if the servicer discovers that there was a mistake in origination or fraud then the originating lender may be forced to purchase the loan back. The importance of these trends establish a dividing line in the assembly process of a mortgage loan.  Local banks and lenders are better equipped to interact with the borrower, gather necessary documents, coordinate with the venders (title companies, tax authorities, insurance, and appraisers) and are better attuned to local laws and markets. Larger and national servicers are better equipped to manage the day to day affairs of mortgage payments, default, workouts, foreclosure and general customer service.  One mortgage loan default to a servicer is considered a cost of doing business.  One mortgage loan default to a small local bank could be considered devastating.

As we weather the storm of regulation in the mortgage lending industry, local banks and lenders will increasingly assume a larger share of the origination pie.  This means that first-time home buyers can at the very least expect to be run through the proverbial ringer in the course of qualifying for a mortgage loan. I strongly suggest that prospective first-time buyers establish a relationship with a local bank or lender.  Some simple suggestions are as follows: 

1. Establish a checking and savings account with a local bank – this will give your future originator access to a wealth of financial information, including bank statements, income, deposits, reserves and payment history. Sometimes, an established account may qualify you for a lower rate;

2. Establish a credit card with your local bank – this will establish your ability to pay certain credit debts timely;

3. Consider refinacing your existing car loan with the bank - this may be a double benefit as it may reduce your monthly payments and establish a credit profile with the bank; and,

4. Make it a point to know the bank branch manager – in a world that sometimes in bulk seems cold and insincere, local banks still emphasize customer appreciation and loyalty. Your smile and a hello may just get you somebody in your corner advocating for your loan approval.

For more information please feel free to contact me anytime.

Jonathan J. Moriarty, Esq.

Law Office of Jonathan J. Moriarty

53 South Main Street, Ste. 3

Randolph, MA 02368

Telephone: (781) 961-2200

Facsimile: (781) 961-0017

Email: jjmoriarty@verizon.net

Website: http://www.attorneymoriarty.com

DEMYSTIFIED: MASSACHUSETTS DECLARATION OF HOMESTEAD

On December 16, 2010, the governor of Massachusetts signed into law the most extensive changes to our homestead law in more than a generation ("The Act"). The Act (Chapter 395 of the Acts of 2010, rewriting M.G.L.c. 188) allows homeowners to choose between Automatic Homesteads, created without a declaration, and Declared Homesteads, available only when the homestead declaration is recorded. The effective date of the Act is March 16, 2011. While this memorandum bulletin is not intended to review all of the provisions of the Act, it does address the major provisions of the Act.

The Act recognizes homesteads created by individuals who intend to occupy homes as their principal place of residence. The individuals may hold the title to their home by themselves, as tenants by the entirety, as tenants in common, or as joint tenants. In addition, if a beneficiary of a trust that takes title to a home intends to occupy the home as his/her principal place of residence, the protection under the statute extends to the beneficiary (although the trust beneficiary must be identified in the homestead declaration as the beneficiary of the homestead). If a single homeowner subsequently marries, the spouse becomes entitled to the benefits of the homestead.

Once the individual acquires title to his or her principal place of residence, the interest so acquired becomes subject to an automatic homestead exemption under M.G.L.c. 188 §4. The amount of the automatic exemption is $125,000.00. Alternatively, the homeowners may choose to declare a homestead exemption. As long as both the homeowner and his/her spouse sign the declaration of homestead, the homeowner's interest in the home will be subject to an exemption in the amount of up to $500,000.00 (M.G.L.c. 188, §5). Special homestead exemptions continue to be available for the benefit of the elderly and the disabled (M.G.L.c.188, §2). Anyone who already has declared a homestead prior to the effective date of the Act will continue to be protected and the existing homestead will be governed by the Act.

The homesteads created under the Act will be automatically subordinate to mortgages encumbering the homes. There is no necessity to add to the mortgage the signature of the non-owner spouse for the subordination to be effective. Lenders are not allowed to request a release of homestead in connection with making a mortgage (M.G.L.c.188, §9).

The homestead may be released by a deed from the owner and the non-owner spouse to a non-family member. In addition, the estate may be released by either termination of the homestead, signed by both the declarant and the spouse, the recording of a new declaration, or by abandonment of the property as a principal place of residence. If the property is owned in trust, only the trustee needs to sign the deed or the release of homestead (M.G.L.c.188, §10). In order to establish the marital status of the grantor, the Act allows a good faith purchaser to rely on the statement of grantor's marital status in the deed or a mortgage (M.G.L.c.188, §13).

Filing a Declaration of Homestead is simple and inexpensive.  However, I always recommend that you consult a real estate attorney and discuss your available options.  A current owner property rundown, deed copy and filing of a Homestead may be conducted by a real estate attorney for about $125.00.


For more information please feel free to contact me anytime.

Jonathan J. Moriarty, Esq.

Law Office of Jonathan J. Moriarty

53 South Main Street, Ste. 3

Randolph, MA 02368

Telephone: (781) 961-2200

Facsimile: (781) 961-0017

Email: jjmoriarty@verizon.net

Website: http://www.attorneymoriarty.com/