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February 18, 2026 15 mins
Todd Lutsky explains how the types of assets you own — including rental properties and out-of-state real estate — can significantly shape your estate planning strategy. He discusses liability protection through LLCs, how to avoid Massachusetts estate taxes for non-residents, and why simply placing property in a revocable trust may not provide creditor protection.

Todd also explores how family dynamics, special needs planning, spendthrift concerns, and divorce risk should influence how trusts are structured. The episode highlights why flexibility and long-term control from a well-drafted trust can protect assets for generations.
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Episode Transcript

Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
This is Ask Todd on the Financial Exchange Radio network.
If you have an existing estate plan or in the
market for one, Todd Lutsky is here to answer your
questions and help you plan for a later life. Ask
Todd is presented by Cushing and Dolan, serving Massachusetts and
New England for more than thirty five years, helping families
with a state and tax planning, medicaid planning, and probate law.

(00:22):
Visit Cushingdolan dot com. Now here's Todd Lutsky.

Speaker 2 (00:28):
And as promised, we're now joined by the one and
only Todd Letsky from the law firm of Cushing and Dolan.
We got the phone lines wide open for your phone calls,
so make sure you get calling. Eight eight eight two
zero five two two sixty three is the number to
ask Todd your estate planning questions, live on air right now.

(00:48):
Again eight eight eight two zero five two two sixty
three is the number we can usually get through two
or three year calls, So make sure you get dialing
in to get your spot in line, uh, because Todd
tends to be in high demand. Again eight eight eight
two zero five two two sixty three is the number.
Mister Lutsky how are you doing today?

Speaker 3 (01:10):
I am never better?

Speaker 2 (01:10):
And you good? Did uh? Did you hear that the
duck finally quacked?

Speaker 3 (01:16):
No, no, I didn't hear that.

Speaker 2 (01:18):
Confess to all its quimes. Oh yeah, that's that's funny.
Now it was actually foul play. Yeah, it's not good, Todd.
I want to talk a little bit about, Uh, someone
who might not have put together in a state plan.

Speaker 3 (01:31):
Yeah.

Speaker 2 (01:32):
Does the type of assets or accounts that someone owns
impact or influence the type of planning that they do?

Speaker 4 (01:43):
Uh?

Speaker 3 (01:43):
It can. Yeah, the type of assets make a big difference.
How so, so let's let's put let's pick some assets
to to sort of pick on first. I would say,
when you're listing assets, and by the way, that's the
first thing you should do when you're thinking about your
state plan. List all your assets so you know what
you're dealing with. But let's say someone comes in and
they've got you know, you know, five rental properties four

(02:06):
A rental proper doesn't have to be multiple sure, so
in mind, they might have a home and a vacation
home in this and that. But let's just stick on
the real estate side. Once they throw in rental properties
in the mix of their planning. Not only are you
going to then say okay, well, you still need to
do your basic estate plan, your will, your trust, your
health care proxy, your power of attorney, all the basic

(02:28):
documents are still going to apply to an individual like that.
But in addition to that, I'm going to say, okay,
so the objectives are avoid probate, you know, reduce or
eliminate your estate taxes, provide a bloodline plan to your
family however you want to leave that, and then decide

(02:49):
how much control you want to keep. Okay, so those
are your basic ideas. Then I'm going to add, well,
since you happen to have a rental property or rental properties,
are you at all concerned about protecting those assets or
protecting yourself from potential creditors associated with those properties? For instance,

(03:14):
the slip and fall, the party where someone falls off
the balcony you name it, and someone gets hurt on
the property, If you continue to own that property the
way you own it, generally speaking your own name, or
even if you just say I want to do the
basic estate planning and then put that rental property into

(03:37):
the trust that you're doing, you have not changed your
credit or exposure. Example, if someone gets hurt under those
circumstances on the property, they are going to sue the
property owner, which is you, and they are going to
go after all of your assets, not just that building.

(03:57):
Whereas if instead you put that building into a limited
liability company, and then you take the shares of that
limited liability company and place them into the revocable trust. Now,
when somebody gets hurt on that property and sues, they
will not sue the shareholder, which is you. They will
sue the entity. And the entity has a building in it.

(04:21):
And guess what, most of the time, the individual creditor
doesn't want the building. They want the money, sure, and
so now they're going to settle with your homeowner's insurance
or umbrella carrier and figure out how to resolve this.
And you don't care. You're happy you got to keep
the building and the lawsuit was handled by your insurance company.

Speaker 2 (04:42):
Talking with Todd Lonski from the law firm of Kushing
and Dolan's still room at the phone on the phone
lines for your estate planning questions. Phone number is eight
eight eight two zero five two two sixty three, and
you get to ask Todd your questions live on air.
Right now. That number is eight eight eight to zero
five two two six three. We're gonna take a quick

(05:05):
break here, but when we come back we'll get some
of your questions with Todd. That phone number again is
eight eight eight to zero five two two sixty three.

Speaker 1 (05:16):
Ask Todd with Todd Lutsky every Wednesday at ten thirty
only here on the Financial Exchange Radio Network. Todd Letsky
answers your questions about a state and elder life planning
every Wednesday at ten thirty right here on the Financial
Exchange Radio Network, talking.

Speaker 2 (05:40):
With Todd Lutsky. We still have room on the phone
lines for your estate planning questions at eight eight eight
to zero five two two six three. Again, that number
is eight eight eight to zero five two two six three.
Let's go to Norman in Portland. Norman, what's your question
for Todd Lutsky?

Speaker 3 (06:01):
Right?

Speaker 4 (06:02):
Well, I think you just describing me. I got a
house that I'm renting in Massachusetts, but I live in Maine.
I was wondering, is that a special difficulty being out
of state?

Speaker 3 (06:18):
No, No, it's not. It's not any difficult, more difficult
at all. What I can tell you, though, is, and
since you do live out of state. And I think
this is a great question for everybody else who's listening
right now. I understand living out of state. There's one
other issue you might not have been thinking about, and
that is I'll describe it this way. I did a

(06:40):
seminar once for somebody called So you think you've changed
your residency, It's not always so easy. And so when
you are a non resident in Massachusetts and you own
real estate in Massachusetts in your own name, Massachusetts will
tax you when you die as an on resident on

(07:01):
the value of the property you own in mass So,
for example, if you had two million dollar property in
mass and your entire estate, all the stuff you own
on your own in Maine, wherever else, let's say adds
up to four million, So your entire estate is four million,
but two million of it is Massachusetts property. They will

(07:23):
divide that out, so that's fifty percent, right, and then
they will calculate the tax in mass on four million
your entire estate, and then hit that number with fifty percent.
So they'll take fifty percent of the tax on four million.
So you need to be mindful that you don't want
to be paying Massachusetts a state tax, even though you're

(07:45):
a non resident. So one we got to do an LLC.
How do we prevent this taxation by Massachusetts on non
residents that own property in mass You take the property
and you put it into an LLC. Once it's in
an LLC, you've effectively converted the Massachusetts real estate to

(08:06):
what they call an intangible. What do I mean intangible?
It's a stock certificate. It's an intangible. You don't own
real estate in mass anymore. And so then mass cannot
tax non residents on intangibles. And so now you avoid
the Massachusetts a state tax. So that's not why you called,

(08:26):
but that's another reason you should be doing this. Now,
the creditor reason you should be doing this is if
somebody gets hurt. Right, so we simply put this into
an LLC for you here in mass and the operating
agreement will be here in mass You shouldn't have to

(08:46):
file in Maine because you don't own the property in Maine.
You just have to file in Mass. And now, if
somebody gets hurt on the property, they will sue the
entity here in mass. They will not sue you as
the shareholder or hopefully your trust as the shareholder. And
again the reason you want to put the shares of

(09:08):
the LLC into the trust is because you want to
make sure you avoid probate when you pass on all
assets right and in all states. So you certainly don't
want to have to go to probate in mass and
basically file in Maine and do an ancillary probate in
mass So seemingly simple question, but hopefully I gave you
a lot of information, and folks, I hope I helped

(09:31):
you a lot of you out. If you're someone listening
who has property out of state or has property in state,
but you've moved out of state to avoid Massachusetts estate tax.
Folks that said, a lot of people haven't even done
their estate planning. So how do we kick off your
estate plan this year? How do we get your estate

(09:51):
planning going? The guide called back to the Basics will
really help you. That's where given away this month. It
basically lays out things to think about before you go
to the lawyer. You know, how old am I? What's
the family dynamics? As Chuck asked me earlier, what's the
value of the assets that I have?

Speaker 2 (10:08):
You know?

Speaker 3 (10:09):
And then the guide continues to basically give an estate
plan my It's an engagement letter basically that I put
together for a four million dollar client, advising them how
the will works, how the trust works, how the living
will the healthcare proxy work. In this case, we've recommended
an irrevocable trust, so you'll learn all about how that
irrevocable trust works, along with the basic documents as well. Folks,

(10:33):
get your estate plan in order today. Get the guide
back to the basics eight six six eight four eight
five six nine nine or Legal Exchange Show dot com
again eight sixty six eight four eight five six nine
nine or Legal Exchange Show dot com. And you could
go to our Instagram page Cushing Dolan PC for more information.

Speaker 2 (10:54):
Todd, when we talk about family dynamics influencing an estate plan,
can you give a little bit more color as to
exactly what may come into play on that front.

Speaker 3 (11:06):
Yeah. I think when we start asking clients about family dynamics,
where meaning, you know, do we have you know, somebody
who might be you know, drug addicted or alcohol addicted
somehow that's a lifelong thing you have to deal with.
What if you have children who are you know, you
know they're level headed, but they're horrible with money, or
they just spend money like there's no tomorrow. They don't

(11:26):
how to deal with finances. Well, that's important. What if
you have somebody who is a disability, has a disability
as a special needs child, or or became disabled later
in life and is getting some kind of governmental benefits, Well,
we want to make sure that we don't, you know,
lose those governmental benefits. So when you're setting up the trust,

(11:47):
you know, and another thing to think about is just
in general, if you don't have any of those things,
what about you know, someone who's got married, has kids,
and you're just worried about that relationship. You're worried about
a future divorce from your children after you die. I mean, folks,
family dynamics come in all kinds of flavors, and you

(12:10):
with these trusts. We talk a lot about state taxes
and probate and I get all that, but remember the
family behind the estate plan is critical. And so these
trusts can live on after you die, long after you die,
and provide for your children, your grandchildren, even your great
grandchildren sometimes and so you can really control things from

(12:32):
the grave. So you know, the way you set up
the trust might be with that disabled child, I don't
want to leave it out right. I want to leave
it in trust. I want to have it so that
the child can continue to get the governmental benefits, but
at the same time be able to enjoy what we're
leaving them. In other words, you don't have to disinherit

(12:52):
that particular child in order to provide for them. In addition,
what if I've got you know, that special needs or
not that I've got a drug related child. Well, again,
this person or a spendthrift. I don't want to leave
this money out right to the child because they'll just
blow it. But I want to have it in trust

(13:13):
so that it comes out over time, you know, and
it provides for them for not only during their life,
but maybe even into retirement.

Speaker 2 (13:22):
Is it generally accurate to say then that, regardless of
the specific concern that you may have about a family
member or family members and how they may inherit certain assets, Yeah,
there's typically a legal tool available to help alleviate that
concern to a certain extent. You just might not know

(13:43):
what it is.

Speaker 3 (13:44):
Yeah, I think, And to be safe, you can use
a general language that we do or we I mean,
I think generally speaking, there's never any harm done if
you draft something with a lot of flexibility that actually
holds the holds the assets in trust rather than gives
it out right. As a general rule, even if the

(14:04):
kids are you know, great level headed, you still worry
about future creditors, and a future creditor could be any creditor.
It doesn't have to be a divorce, but certainly divorce
resonates with people. So to me, even if you don't
think that there's a lot of other, you know, standout
reasons to provide the trust to live on, sure, why

(14:25):
not just put it in a sole discretionary payout trust
so that the kids don't own it right away. Therefore
if something comes up later after you're dead, it's protected.
Yet it's drafted in a way where you know they're
the trustees, they're managing it, they're investing it, they're buying
and selling property, but just not owning it, so that

(14:47):
if something comes up later on, then the asset is
protected from that particular creditor or more likely than not,
a divorce. So I think just giving it out rights
never a great idea.

Speaker 2 (15:01):
Mister Lutski, thank you so much for joining us today.
We really appreciate it.

Speaker 3 (15:05):
Always a pleasure. Thanks for having me.

Speaker 1 (15:07):
This has been asked Todd on the Financial Exchange Radio network,
Ask Todd with Todd. Lutsky has been presented by Cushing
and Dolan, serving Massachusetts and New England for more than
thirty years, helping families with the state and tax planning,
Medicaid planning, and probate law. Call eight hundred three nine
three four thousand and one or visit Cushingdolan dot com.
The views expressed in this segment are solely those of

(15:28):
Cushing and Dolan. Armstrong Advisory does not provide any legal
or tax advice. Please consult with your illegal or tax
advisor on such matters. Cushing and Armstrong do not endorse
each other and are not affiliated
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