Administering an Estate in the Digital Age

Imagine that a family member has just passed away and you know they have important information stored on the internet. It could be in the cloud, in their email, or on a social media account. How do you access this information? The Massachusetts Supreme Judicial Court (“SJC”) recently decided the case Ajemian v. Yahoo!, Inc., 478 Mass. 169 (2017), has shed some light on this question.

Ajemian was named the Personal Representative (formerly executor/trix, appointed by the Probate Court to administer the decedent’s estate) of her late brother’s estate and needed access to his Yahoo email account. She offered her Letters of Authority (a document from the Probate Court that shows the Personal Representative has the authority to act on behalf of the estate) to Yahoo who refused to grant her access to the email account. Yahoo claimed that a Personal Representative of an Estate did not have the right to access the information because of federal privacy laws and that the disclosure violated Yahoo’s terms of service. The SJC ultimately determined that disclosing the information in the Yahoo email account to Ajemian did not violate federal privacy laws because Ajemian, as Personal Representative, was the only person with authority to consent to the release of the email account on behalf of the deceased. The SJC did not make a ruling on whether or not the disclosure would violate Yahoos terms of service and remanded that decision back to the Probate Court.

While the SJC did not give the total green light to the release of the Yahoo email account to Ajemian, the SJC did rule that the release did not violate federal privacy laws. This decision can have a ripple effect throughout the internet community possibly allowing Personal Representatives to request and access the electronic information of deceased loved ones. Facebook and Instagram already have policies in place allowing court appointed Personal Representatives to delete or memorialize the account of a deceased loved one. Gmail even allows people to appoint someone on their email service who will automatically be able to access account information after the death of the account holder.

One way to ensure that your loved ones will be able to access your electronic information, or to specifically prohibit access, is to make provisions regarding such access in your Last Will and Testament (“Will”). Your Will tells the court who you want to be in charge of your estate and what you want that person to do with your assets. This can include access, or specific prohibitions, to electronic information.

If access to your electronic information after you pass away is important to you, the Estate Planning attorneys at Baker, Braverman & Barbadoro can help you draft a Will that includes your electronic access goals. – Elizabeth A. Caruso.

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Massachusetts Child Labor Laws: Is Your Company in Compliance?

Two prominent franchises were recently found in violation of the child labor laws by the Massachusetts Attorney General’s Office. Burger King was found to have more than 800 child labor violations at stores across the state. Among the violations uncovered were minors working shifts that exceeded the total maximum daily hours allowed or shifts that ended later than allowed under state law, in some instances past 3 a.m. Many of the minor employees also did not have the proper work permits. Similarly, Sugar Heaven, a popular candy franchise, violated child labor laws by scheduling and allowing minors to work later or for longer than what is permitted and by failing to obtain work permits for minors. Employees under 18 were also frequently left to close the stores late at night.

The Massachusetts Child Labor Laws apply to all child workers ages 14 to 18; children under the age of 14 are not eligible to work, with few exceptions such as working as a news carrier, on a farm, or in entertainment (with a special permit). The state’s child labor laws, according to the attorney general’s office, were written to “protect young workers who suffer injuries at much higher rates than adults and who need to balance work and education.”

Child labor laws require the following to ensure a safe and positive work experience for minors:

  • Minimum wage. The minimum wage in Massachusetts is $11 an hour.
  • Work Permits. Workers under 18 years old need a new work permit for every job. The application for a work permit must be filled out by the parent or guardian, the minor, and employer and submitted to the school district where the child lives or attends school. Minors who are 14 or 15 also need a physician’s signature.
  • Hazardous Jobs. Teens under 18 years of age are prohibited from doing certain kinds of dangerous work. Such hazards include, but are not limited to operating, cleaning, or repairing power-driven meat slicers, grinders, or choppers; driving a vehicle, forklift, or work assist vehicle; handling, serving or selling alcoholic beverages. Teens under 16 are prohibited from even more tasks that are considered dangerous such as performing any baking activities; operating fryolators, rotisseries, NEICO broilers, or pressure cookers; working in freezers or meat coolers; working on or use ladders, scaffolds, or their substitutes; and working in amusement places (e.g., pool or billiard room, or bowling alley) or barber shops.
  • Supervision. After 8 p.m., all workers under 18 must have the direct and immediate supervision of an adult supervisor who is located in the workplace and is reasonably accessible to the minor.
  • Legal Work Hours for Minors. Massachusetts law controls how early and how late minors may work and how many hours they may work, based on their age. For example 14- and 15-year olds can only work between 7 a.m. and 7 p.m. during the school year for a maximum of 18 hours per week during the school year (which is further restricted to only 3 hours on a school day, 8 hours per day on a weekend and no more than 6 days a week). 14- and 15-year olds can only work and between 7 a.m. and 9 p.m. during the summer (July 1 through labor day), for a maximum of 8 hours a day, 40 hours a week but not more than 6 days.

Employers tend to violate the hours requirements, supervision requirements and permitting requirements for young workers most frequently. If you are an employer that hires workers under the age of 18 make sure that you are knowledgeable as to all of the restrictions involving child workers, and the paperwork required for child employees.  The employment lawyers at Baker, Braverman & Barbadoro, P.C. are available to meet with you and to review your employment practices. – Susan M. Molinari.

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Lifespan of Restrictive Covenants on Massachusetts Real Estate

Restrictive covenants are, in a nutshell, private restrictions on the use of land. They are generally disfavored by state law, and developers must adhere to strict guidelines to protect their enforceability beyond a thirty-year period.

Restrictive covenants typically arise during residential or commercial developments. Before selling off property, a developer could create restrictions governing certain aspects of the buildings or landscapes on each lot. The scope could include color and design of a building, use of a property (such as a single-family residence being required where zoning would otherwise allow multi-family residences), and maintenance of trees and bushes.

These restrictions are contracts between the developer and owners of the properties (including subsequent owners, assignees, and mortgagees). In Massachusetts, restrictive covenants “created by deed, other instrument, or a will” expire in 30 years unless properly extended (the 30-year limit generally does not apply to restrictions imposed by a planning board).

A recent case from the Massachusetts Appeals Court instructs that the developer must explicitly provide for potential extensions in the original documents in order for a restrictive covenant to survive beyond 30 years. This rule applies to any restriction created after January 1, 1962. Under the applicable statute, extensions of 20 years each may be approved by a majority of the owners in the development, but only if addressed in the original documents. In the Appeals Court case, the original restrictive covenant documents allowed the owners, by 2/3 vote, to amend the restrictions. However, the amendment provision did not explicitly address extensions. Because the right to extend was not set forth in the original documents, the court held that the owners, even with a 2/3 vote, could not extend the restriction beyond 30 years.  Accordingly, the bulk of the owners in a development could not enforce the restrictions against one owner after the 30-year period had expired.

If you own or are purchasing property subject to restrictive covenants, or if you are a developer considering whether to create restrictive covenants, please contact one of the Real Estate attorneys at Baker, Braverman & Barbadoro, P.C. to get the expert legal advice you need. – Kimberly Kroha.

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Commercial Lease Common Area Maintenance Expenses Can be a Costly Surprise

Commercial leases typically divvy up the costs for maintaining a building and property amongst the tenants. These costs are called common area maintenance expenses, CAM for short. Leases can be structured in many different ways, and the devil is in the details. Below are a few provisions to review closely to limit post-occupancy surprises.

1. Real Estate Taxes. Some landlords pay all real estate taxes, some charge all real estate taxes to the tenants, and others charge real estate taxes over a “base year.” For “base year” leases, tenants pay for any increases in real estate taxes that took place after the first year of the lease, which can be caused by changes in tax rate or assessed value. Tenants anticipating a base year structure in new construction or substantially renovated properties should negotiate for the “base year” to start after the property is reassessed to include the value of the construction.

2. Administrative and Management Fees. Landlords can charge administrative fees, which are typically considered the cost of receiving and paying the bills and other typical overhead. A typical administrative fee is 10% of the CAM expenses. The larger cost is management fees, which are generally 3-5% of rent, CAM, and insurance costs. Management of a property takes time and money – someone needs to hire and manage the landscaper, the electrician, the snow plow companies, and so forth, but tenants should understand how the fee is calculated and watch out for a management fee on real estate taxes, which usually do not require much effort.

3. Pro-Rata Share. A tenant’s share of the CAM expenses can be defined as the size of the tenant’s leased premises over the size of the total leasable area OR over the size of the total leased area. Those do not look much different, but they are. A pro-rata share calculated over the leased area allows a landlord to redistribute expenses from a vacant suite to other tenants, whereas a calculation over the leasable area requires the landlord to cover the expenses for vacancies. There are some expenses that may be fair to redistribute – water and trash removal – and others that may not – such as snow plowing that needs to be done regardless of the occupancy.

4. Controllable Costs. Landlords may agree to a cap on “controllable” costs. The word “controllable” is amorphous, and a general list of items included in that term should be stated. Landscaping and regular maintenance are usually considered controllable, snow removal and insurance are not.

For more information on these and other commercial leasing matters, please contact one of the Real Estate attorneys at Baker, Braverman & Barbadoro, P.C. to get the expert legal advice you need. – Kimberly Kroha.

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How To Prevent Elder Financial Abuse

Massachusetts General Laws define financial exploitation as the substantial monetary or property loss of an elderly person due to an act or omission of another person.  Financial exploitation occurs in the form of internet scams, forging signatures on checks, the illicit use of credit cards and the misuse of a power of attorney.  It also includes exerting undue influence over an elderly person to convince them to transfer assets or change his or her Will, Trust, Durable Power of Attorney or other estate planning documents.  In Massachusetts, elder abuse, including financial exploitation, is a crime, however it is often unreported and not discovered until the victim has passed away.  Elders tend not to report incidents of financial exploitation because they are fearful of retaliation, may have diminished cognitive or physical ability, or simply because they are embarrassed that they were taken advantage of.

The signs of financial elder abuse include, but are not limited to, the elder giving away property; the elder changing their estate plan at the urging of someone else; the elder spending time with a new “friend” and is paying that person in exchange for care; or bank account or credit card statements reflecting transactions that the elder either could not or would not have made.  Despite the perception that an elder is likely to be exploited by a stranger, it is more likely that a family member is the perpetrator of financial abuse.  Given the rise in opioid addiction, there has been a rise in Massachusetts of complaints of financial exploitation due to adult addicted children moving back in with their elderly parents or other elderly relatives.

It is important to protect yourself and your loved ones from becoming a victim of elder financial abuse.  There are a few steps you can take to protect yourself or your loved ones, such as: be aware of your finances or the elder’s finances, even if someone is managing the bills for you or the elder, check the credit card statement and bank statements, question any unusual or suspicious transactions; set up direct deposit for social security or other income; do not give out personal information, such as our social security number or bank account information over the phone; be wary of emails claiming a loved one is traveling and has been robbed or needs your financial assistance; and do not meet with a financial planner who you did not initiate contact with.

If you believe you or a loved one is being financially exploited, this should be referred to Elder Services and the police.  However, it is often the case that the financial exploitation is not discovered until after the death of a loved one because elders often to not report exploitation out of embarrassment or fear of retribution.  If you believe you or a loved one are or were a victim of fraudulent exploitation, contact Baker, Braverman & Barbadoro, P.C. to assert your rights.Susan M. Molinari.

 

 

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Private Medical Insurance Liens Against Your Personal Injury Settlement

You may be surprised to learn that your health insurance provider has the right to assert a lien for the repayment of benefits paid on your behalf with regard to your personal injury case. This is what’s called demand for subrogation.   Subrogation is premised upon the concept that a person should not have their medical bills paid twice, once by his/her health insurer, and a second time in the form of a settlement or judgment for damages. Massachusetts General Laws Chapter 111, §§70A-70D set forth the procedure whereby a health care provider may perfect a lien. The statute expressly provides that written notice of a lien must be sent via certified mail return-receipt requested to the injured party, his or her attorney, and the insurer prior to the third-party settlement. If you fail or refuse to pay the insurance lien, you can be sued by your private insurance company for repayment of the lien amount and denied future coverage.

It is crucial to obtain a copy of the contract language from your health insurance plan to determine what rights your health insurance company may have. Most contract language limits recovery to third party liability cases and insurers do not have a right to settlement funds from Uninsured Motorist cases or Underinsured Motorist cases.

Prior to the completion of your personal injury case it is important to ensure that you have exhausted your Personal Injury Protection (PIP) Coverage on your automobile insurance policy including MEDPAY, and that the bills reportedly paid by your private health insurance provider have, in fact, been paid and are related to the injuries you sustained in the accident.

When it comes to the payment of liens, attorneys can often negotiate a reduction of the lien amount held by your private health insurance company, ultimately giving you a greater net recovery.

Negotiating with a Health Maintenance Organization (HMO) is often easier than with a Preferred Provider Organization (PPO) since HMOs operate by paying hospitals, doctors, and other health care providers a specific amount each year for every patient they see, regardless of the amount of treatment any single patient receives. When you negotiate a medical lien reduction with an HMO it is important to understand that they’ve already paid the provider their fee.  PPOs differ from HMOs in that a PPO pays providers separately for each of the services they provide but the providers agree to accept lower fees in exchange for being part of the PPO network (with the potential for attracting more patients). Basically, HMOs negotiate with their own money, whereas PPOs negotiate with the medical provider’s money.

At Baker, Braverman and Barbadoro, P.C., we have experienced personal injury attorneys that can both handle your personal injury case and successfully negotiate your lien allowing you to  keep more of your settlement. – Christine T. LaRose.

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Child Off to College? Free Seminar for Parents to Provide Three Critical Legal, Medical and Financial Protections Their Child May Need

The Quincy Law Firm of Baker, Braverman & Barbadoro, P.C., in conjunction with the South Shore Bank, invites parents of students headed off to college — even if it is not their first year – to a free seminar to assist them in preparing for an unexpected adversity.  Scheduled for August 23rd, this seminar provides three important tools to protect against some serious legal, medical and financial difficulties that can occur when your over-18 year old child leaves home.

Entitled Three Critical but Easy Protections to Put in Place for Your College-Bound Child, this 45-minute seminar will be conducted at the South Shore Bank Operations Center at 1584 Main Street, Weymouth (adjacent to the Main Office on Route 18) on August 23rd.  It will be offered at both 9:30 a.m. and 6:30 p.m.

The presenters include:

  • Elizabeth Caruso, Esq., an estate planning attorney with Baker Braverman & Barbadoro, P.C. She will discuss the importance of Healthcare Proxies and Durable Powers of Attorney for college students.
  • Phillip Melanson, Vice President and an Infinex Investment Executive at South Shore Bank, will present on important benefits of Life Insurance for college-aged students.
  • Jacqueline Hurstak, Retail Officer/Branch Manager South Shore Bank, who will discuss important guidelines for the security and safe use of student checking accounts and debit cards.

If you wish to attend, you must RSVP to Jacqueline Hurstak (jhurstak@sssb.com, (781) 682-3715 or to Amy Morin (amym@bbb-lawfirm.com), (781) 848-9610 by August 21st.

Baker, Braverman & Barbadoro P.C. is a Quincy, Massachusetts law firm representing clients in matters involving litigation, business/corporate, real estate, elder law/estate planning, divorce/family law, employment, finance, probate, criminal defense, tax, bankruptcy and election law. Their team of talented attorneys maintains a broad spectrum of skills in order to guide their clients through the complexities of today’s ever changing legal landscape.

Originally chartered in 1833, South Shore Bank is a full-service community bank with assets of approximately $1 billion and 16 locations.  All deposits are insured in full.  The FDIC insures all deposits up to $250,000 per depositor and up to $250,000 per depositor for Individual Retirement Accounts (IRAs); all deposits above this amount are insured by the Depositors Insurance Fund (DIF).  For more information, visit http://ift.tt/2uEGLUB.

Investment products and services are offered through INFINEX INVESTMENTS, Inc. Member FINRA/SIPC. The Investment Center at South Shore Bank is a trade name of the Bank.  Infinex and the Bank are not affiliated.  Products and services made available through Infinex are not insured by the FDIC or any other agency of the United States and are not deposits or obligations of nor guaranteed or insured by any Bank or Bank affiliate.  These products are subject to investment risk, including the possible loss of value.

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