How Do I Know if I Need a Revocable Trust?

Recently I have been meeting with several clients who contacted me because they hear on the radio or from family members that they need to create a trust. They aren’t sure what kind (revocable or irrevocable), but they just know that they need one. The first question I usually ask them is what their goals are. Sometimes, as it was with a recent client, they simply do not need one at all.

Trusts are good vehicles for controlling your assets for your children after you die, avoiding probate, minimizing estate taxes, and protecting assets. The type of trust you need depends on what you are trying to accomplish. For clients who have children with special needs, a supplemental needs trust is an excellent way to provide for disabled children who currently or will receive public benefits.

In February, I wrote about the considerations for an irrevocable trust. The main difference between a revocable trust and an irrevocable one is accessibility (or control). When you create a revocable trust, you can be the trustee, and you can add to and withdraw from it at any time. It also does not need to be funded until after your death (but it can be funded at any time). Revocable trusts are excellent for ensuring that your minor children do not receive their inheritances outright at age 18 should something happen to you before then. You can decide now what they can use trust funds for later. You can also prevent them from receiving large distributions if they might have a substance abuse or gambling problem. In other words, you can control from your grave how much they receive and when they receive it. And even for post-college aged kids who may not be responsible with money, these are an excellent way to provide some protections from themselves and creditors.

Revocable trusts are also good for avoiding the probate process, which in New Hampshire, can be expensive and time consuming. In other words, your estate will pay now or pay later, and in the former, you alleviate a burden for your loved ones.

In short, if you have no minor children (or young adults) and have very few assets that won’t require a large or expensive probate, then a revocable trust may not be necessary. Each client’s case is different, and many factors go into the analysis of when a trust makes sense and what kind.

What can I do if my child has anxiety?

It seems like every day we hear or read something in the news about the emotional toll that COVID is having on people. For children of all ages, the isolation of sitting alone in an online class is causing depression and anxiety in kids who have never before suffered from either. They may be physically safer by attending classes from their bedrooms, but emotionally, many are flailing. I have had more calls from parents about their children shutting down, refusing to engage in school at all remotely, and in same cases, even in person. The damage this is causing is likely more profound than any of us realizes.

The question I get most often is, “Is there anything the school can do for my child who now has anxiety?” Fortunately, the answer is yes. Unfortunately, it is often not as easy as flipping a switch.

Even if your child does not currently receive special education services, he or she may still benefit from resources at the school. If the anxiety or depression is preventing the child from engaging, as a parent, you have the right to ask the school to conduct a psychological evaluation. This is the beginning of the eligibility process to determine if your child requires direct services to access the curriculum. After you consent to the evaluation, the district has 45 school days to conduct the evaluation and meet with you to go over the results in what is known as a “team meeting.” If the team determines that your child does need additional services or support, then the district will create an individual education program (“IEP”) for your child, which will outline exactly what your child needs to participate academically.

If your child does not qualify for an IEP, or you do not wish to have him or her formally assessed, you can contact your school’s guidance counselor (or special education department) to discuss creating a 504 plan. A 504 plan, while a legal document, does not have as many protections as an IEP does, but it still must be followed. Whereas an IEP allows for modifications to a student’s schedule and education, a 504 allows only for accommodations. For a student with anxiety, these might include access to a guidance counselor or trusted staff member as needed, access to a quiet room or space to take tests, frequent check-ins by classroom teacher, and permission to wear noise-cancelling headphones.

What is important to note is that your child does not have to suffer silently. Find out what your child needs, and ask for it. In some cases, it may be a simple accommodation, like an extra movement break. If you have questions about your child’s educational needs, contact Holly Lynch Law today.

Do You Need an Irrevocable Trust?

Oftentimes, clients will start a meeting with me by saying they want to put their house into an irrevocable trust because somebody told them that was the only way to protect it. But there are many factors to consider when deciding whether you want to put your property or assets into an irrevocable trust.

First, you should know that once you put it in, you can no longer access the principal. That means if it is sold, the entire sale proceeds must stay inside the trust. You can purchase another property with it, but you could not use those funds for assisted living, for example. You would not be in charge of the sale of the property; that would be up to the trustee. So if the trustee does not agree with selling it, you cannot do anything. For an irrevocable trust to work, you must be willing to give up complete and ultimate control.

Second, you must have enough assets outside of the trust to live on for the rest of your life. If putting a property into the trust, you should also put some cash into it to pay for repairs, taxes, and insurance for the duration of the trust. If you do not have substantial assets outside of the property, this may not be the best option for you.

Third, what will your quality of life be for your remaining years? It is noble to want to give what you have to your children or grandchildren, but you worked hard for your assets, and you should be able to enjoy them while you can. Remember: inheritances to children are gifts, not rights.

Fourth, in New Hampshire, irrevocable trusts created to qualify for Medicaid are heavily scrutinized, and many times the applicant is denied if he or she has such a trust. So if your goal is to protect the house in order to qualify for Medicaid, note that in New Hampshire this may not work.

In some instances, the irrevocable trust is a perfect tool to protect property, such as vacation homes and rental properties. But it is important to note that it is not perfect in all instances. There are other ways to achieve your goals. Call Holly Lynch Law to discuss these.

Explaining the New DESE Regulations

There has been much chatter recently about the Commonwealth’s new regulations regarding Student Learning Time (SLT) issued last month. For the purposes of its study and regulations, the Department of Elementary and Secondary Education (DESE) considers SLT as in-person instruction and live remote synchronous learning. After surveying schools statewide about their actual hours of time on learning, DESE determined that one-third of schools were not providing enough SLT and established the following minimum levels of SLT:

  • For hybrid models, 35 hours averaged over 10 days and across all grades
  • Daily opportunity for live interaction with teachers
  • For remote models, daily synchronous learning and an average of 40 hours of synchronous learning over 10 days and across all grades

These requirements went into effect this past Tuesday. They do not mean that each school must meet 35 hours (or 40 for remote models) every two weeks; the district must average them across all of its grades. This does not include kindergarten or pre-kindergarten, however. So if the younger students, for example, are in school 20 hours per week, and the older students are only in school 15 hours per week, the entire district would be in compliance because the average would be 35.

The other question that arose during this implementation period is what constitutes time on learning. DESE has defined SLT as live instruction, whether it be in person or online. In other words, so long as a teacher and the students are present together (or in the case of remote, online together in real time), then that counts as SLT. Recesses, lunch breaks, transitions, and handwashing do NOT count as SLT. So if a district follows a one-week on/one-week off model, and the students are in the school building from 8:30am to 3pm, this would not satisfy the regulations.

By now, all districts out of compliance should have revised their learning model and put it into effect this week. If your district is not meeting these new regulations, consider reaching out to your superintendent or school committee and finding out how they plan to.

Education Law SAQs

We are all familiar with Frequently Asked Questions (FAQs), but sometimes those do not answer more specific questions we have about our unique situations that we don’t want to ask for one reason or another. Last month featured SAQs about estate planning and probate administration. This month, we have highlighted some questions we have received recently about school law. As always, please reach out if you have any questions!

Because of COVID, my child has missed out on valuable work-study programs as part of her transition plan. She turns 22 in March. Can she continue to receive those transition services on her IEP until the end of the school year?

Yes, if the school district agrees that she needs them. The district, however, is not required to continue those services past her 22nd birthday.

My child did not receive all of his services last spring because of COVID. Is he entitled to have those made up?

Perhaps. The IEP Team should meet to determine if your child is showing any regression. If so, then he is entitled to what is being called COVID Compensatory Services (CCS). The purpose of these are to address any loss of knowledge or skill as a result of the interruption of services last spring.

We have chosen remote learning for our child due to health concerns, but her IEP currently lists in-person services. Is she entitled to continue receiving them even though she is remote?

Yes. Your child is still entitled to a Free Appropriate Public Education (FAPE), although the delivery of the services may have to change. You should work with the school to figure out what services can be provided remotely and what requires her to receive them in person (perhaps outside of school) in order for her to fully access the curriculum.

My son cannot learn remotely (he barely engaged last spring), but our district is fully remote. What are my options?

We have gotten this question so frequently that it does not actually qualify as an SAQ! But the short answer is that you should talk to the school and try to figure something out. There may be neighboring districts who are providing in-person instruction. Keep good data on how he is not accessing the curriculum remotely. Consult with an advocate or attorney.

We just had our annual IEP meeting, and we do not agree with the school’s evaluations. Do we have a right to seek a second opinion?

You always have that right. If you feel that the evaluations were incomplete or inappropriate, you may request that the district conduct an independent educational evaluation (IEE) to be performed by an outside evaluator. The district may refuse, however, if it feels that the evaluations were appropriate. You can always seek to have your child evaluated privately (at your expense), and the district will have 10 days within receiving the report to hold a team meeting to consider the results. It is important to note that you must let the evaluator know of the tests administered by the school so that the data is not invalidated.

While our holidays look different this year, we hope that everyone finds peace and joy this season in whatever form it takes. Happy Holidays and Happy New Year.

Estate Planning SAQs

We are all familiar with Frequently Asked Questions (FAQs), but sometimes those do not answer more specific questions we have about our unique situations that we don’t want to ask for one reason or another. This month, we thought it would be fun to list the uncommon questions we have received at Holly Lynch Law in the areas of estate planning and probate. Next month, we will focus on school law. And if you have one to ask or share, please let us know! We may address it in a future newsletter.

I can’t decide on naming a guardian. Can we create our wills without that information?

Yes. You don’t ever have to nominate a guardian in your will. But if you do not, then anyone can petition to be a guardian, and the court will decide who takes care of your minor children. It is better to name someone now—the person you would choose if you were to die tomorrow—and change it later if circumstances change. You can also add “if/then” language so that you don’t have to modify your will later, e.g., “If Prince is no longer living in Minnesota, then I appoint Sheila E. to care for my minor children.”

If my trust has nothing in it right now, do I need to open a bank account?

No. Many families, especially those with young children, create “pourover” trusts, which are funded after the death of both spouses. These are created primarily to care for minor children for a predetermined number of years if something should happen to both parents. Although the trust is effective as of the date it is signed, it does not have to contain any assets. So you do not need to open a bank account for it until there are assets in it, which in most of these cases, is after the second spouse dies. You can, however, choose to fund it prior to death, and then you would open an account.

I would like to protect my house, but I may sell it and buy something less expensive. Does that undo any estate planning I do now to protect it?

No. If you transfer your house into an irrevocable trust, you are still able to sell it later, but the proceeds must remain inside the trust. It is common for many older couples to downsize. The irrevocable trust allows the trustee to sell the property and buy something else, but the new property and any excess proceeds must all stay inside the trust.

My father’s will names me as Executor. Do I need to also get a Personal Representative?

In Massachusetts, they mean the same thing. In 2012, Massachusetts adopted the Model Uniform Probate Code, which replaces the term “executor“ with “personal representative (PR).” This change does not invalidate any nomination in wills created prior to 2012—if you are nominated in the will as executor, you have priority to serve as PR.

Should I compensate my personal representative and trustee? If so, what is a typical amount?

That is completely up to you. Generally, if the PR is a beneficiary of the will, most clients do not compensate. But there is some work involved in probating a will, so it is not unfair to reward the child who is doing the work but splitting the estate with siblings. When clients do choose to compensate, the amount usually varies from a “reasonable hourly rate” to $5,000 or $10,000, depending on the size of the estate.

A trust, especially one that is drafted to last for years after the grantor’s death, is more work, and a trustee is usually compensated for this work, especially one who is not the beneficiary. Clients may also choose to compensate on an hourly basis, an annual flat fee, or a lump sum.

I am probating my father’s estate. Everything goes to my brother and me equally. When can I make distributions?

The answer to that could depend on the type of probate administration, but in all cases, creditors have one year to file any claims against the estate. If you are confident that all debts have been paid, and none are likely to come forward within the year, then you may distribute when and as you feel comfortable. As PR, however, you bear the liability if a properly filed claim does arise before one year has passed.

How is Special Education Affected by COVID?

With schools shutting down last spring, many students were not able to receive their special education services as required by law. With many schools starting the school year remotely or in a hybrid format, students are frequently losing some of their in-person services. Many students who require significant structure and one-on-one time with educators are in great danger of regressing or worse, not able to learn at all. One of the most common phone calls my office receives is, “What are my rights as a parent during this?”

Federal and state law mandates that schools provide a free appropriate public education (“FAPE”) in the least restrictive environment to students with disabilities. Prior to the pandemic, this would mean that if a student could learn effectively only in classes of small sizes, the school could not put him or her in a regular general education class. Conversely, a school cannot put a student in a substantially separate classroom if the student is capable of learning in a general education classroom.

The question becomes what constitutes FAPE with regard to remote learning. Federal law provides that individualized education programs (“IEPs”) must still be followed, which means that, despite the pandemic, districts are still responsible for providing all special education services, even if the school is engaged in remote learning. This means that if a child was receiving one hour per day of specialized instruction before the pandemic, he or she should still receive one hour per day. How these services are delivered varies from district to district.

Many students with IEPs or even 504 plans struggle to learn remotely. This is especially true for students with ADHD and executive functioning deficits. But no matter what disability they have, when the students are unable to find, complete, or submit assignments electronically, they are not effectively accessing the curriculum. If the schools are not then finding ways that enable these students to learn the material and complete the work, then the schools are depriving these students of FAPE.

You do not have to give up your child’s rights just because a school is operating remotely. This is also true of timelines, which must still be adhered to. Districts cannot use the pandemic as a reason to not fulfill your student’s IEP or deliver services. If you are uneasy about a remote learning plan or modified IEP offered by the district, consult us prior to signing.

It’s September–Now What?


One of the very unfortunate realities of COVID is that people are dying unexpectedly, either with or without a will. The question then falls to the loved ones as to whether they have to probate the estate or not, and secondarily, what kind of probate they need. A third question is whether they need to hire an attorney.

The short answer to the first question is, usually. Most estates have assets that require probate administration. Some decedents may have created trusts prior to death and retitled ALL of their assets to flow through the trust, thus negating the need for probate administration. But more often, estates have some assets that fall “outside” of the trust, and those, if they don’t go to a beneficiary automatically by operation of law, must be probated.

They type of probate depends on the size and contents of the estate. In Massachusetts, for estates with no real estate and less than $25,000 worth of assets (excluding one car), a voluntary administration is the easiest and least expensive way to go. It can be filed 30 days after death. In New Hampshire, the simplest process is called a Waiver of Administration. An estate can qualify for this when the executor is the sole heir of the estate.

Most estates, however, will have to go through a more complex probate administration. Massachusetts has two options: informal and formal. An informal probate does not require a final decree from the probate court and is a quicker process. For estates with more complex factors, such a missing will, heir, or death certificate, for example, a formal probate will be required. New Hampshire has only one other option: regular administration.

Whether to consult or hire an attorney is up to the loved ones who are doing the probate. All forms are online and can be completed by either the attorney or the person petitioning to be the personal representative (Massachusetts) or executor (New Hampshire). Some forms have accompanying instructions to help the PR and executor, but knowing which forms to file and when can be a little more challenging. And in light of COVID, courts are now accepting them only by mail or online, but the online process can be difficult to navigate. If you have any questions about probate, contact us.

Back to School??

As districts wrestle with whether to open fully in person, fully remote, or a combination (called “hybrid”), many parents are struggling with which option to choose (for those that have a choice). This is even more agonizing for parents of children with special or high needs. One question that has arisen frequently and recently is whether a student who chooses fully remote can still receive special education and related services in person. The answer is yes. In fact, Massachusetts is highly recommending that services be delivered in person whenever feasible, and especially so for those students with the highest needs. (New Hampshire has yet to issue guidance on this.) If parents do not feel comfortable bringing their child to school, they can work with their school to find a different location. The Commonwealth is basically asking both districts and parents to be reasonable and flexible about the delivery of services but has made it clear that the IEP is still to be followed, no matter what the school year looks like. Any IEP that expired during COVID is still to be followed until the team meets to update it.

The Commonwealth has also issued guidance on evaluations, meetings, and compensatory services. You can find more at

Know a Teacher?

As is understandable, many teachers are having anxiety about returning to the classroom. And as a school committee member, I have the utmost respect and appreciation for some of our hardest working professionals. If you are or know a teacher who is in need of a will, through the month of September, I am offering both a discount and expedited service to help ensure their peace of mind during this time. Contact us now for a consultation.

School’s Out for Summer–But What About ESY?

By now, everyone is past quarantine fatigue and wondering when life can return to some kind of normalcy. For those students with extended year services (ESY), that return could be sooner than anticipated. On Sunday, the Massachusetts Department of Elementary and Secondary Education (DESE) issued its guidelines for ESY. Among them is one that schools should use their “best efforts” to provide as many in-person special education services as they can to the students who need it the most. (That group includes those who with substantial disabilities who have experienced substantial regression, those receiving multiple services, and students who need more support to successfully re-enter in the fall.) Social distancing and sanitizing protocols should remain in place in the classrooms, including the wearing of masks, and groups may not be larger than 10 students and two staff members. And services can be provided at home if it is more practical.

In New Hampshire, the governor issued an emergency order on May 26 that directs all school districts to hold an IEP meeting by the end of this month for each child, for the purposes of discussing ESY services, to be provided either in-person or remotely. This applies to all children on IEPs, regardless of whether they currently receive ESY services. That order also requires districts to hold IEP meetings within the first 30 days of the 2020-21 school year to consider whether the student should receive compensatory services for any services not provided during the school closures.

The direction from both states is very encouraging and shows the value they place on providing services to the students who need it most. More important, it also does not exempt districts from using COVID-19 as a reason to not provide necessary services.

Help Your Loved Ones By Planning Now

By now, it is almost certain that each of us has heard of someone we know who has been afflicted with COVID-19. While for the majority of people, it is not fatal, unfortunately that is not always the case for the most vulnerable among us: our elderly and immunocompromised. Just this week alone, I have received two calls from people whose loved ones died unexpectedly—without a will. The effect of this on the family is great: not only do they have to deal with grieving during this time, but they also now have to open the probate process, something that could have been avoided if the decedent had planned ahead of time.

In one of the cases, the decedent was only 52; he was a front-line, essential worker. He owned real estate and had a wife, three children, and two step-children. He is someone who most definitely should have had an estate plan—and at the very least, a will. Now his loved ones are forced to probate the house and assets to assume control of what could have passed easily and seamlessly to them with some advance planning. Not only will probate in this situation be lengthy, but it will also be costly, much more than the cost would have been to execute a will. But more important than cost, it is an extra headache that the grieving family does not need right now.

If you know of anyone who is on the front lines in the COVID battle, please pass this information along to him or her as something to consider—for the benefit of their families. We encourage anyone who does not have an estate plan to consult a competent estate planning attorney ASAP. It is also a good time to review your own estate plan, to make sure that everything still goes where you want it to. As a service to you, Holly Lynch Law will review any estate plan at no charge from now until June 1.

Stay safe and healthy.