In Massachusetts as of 2012, executors for your will are now called personal representatives. Even the best drafted will can lead to problems for your estate when you choose the wrong personal representative. Conversely, if you choose the right personal representative, your estate plan may benefit your loved ones and beneficiaries for generations.

The history behind the Nobel Prize is a remarkable story about an executor / personal representative. The creation of the Nobel Prize depended on the executors of Alfred Nobel’s estate.[1] In the will of the Swedish scientist Alfred Nobel, he created international prizes in 1895.[2] After Mr. Nobel invented dynamite in the 1800s, he made a huge fortune selling his invention to mining and military operations.[3]

From 1901 to present, the Nobel prize has been awarded over 570 times to over 900 different people or organizations.[4] In 1888, a French newspaper mistakenly reported that Mr. Nobel died and called him the “Merchant of Death.”[5] After Mr. Nobel read the article, it is believed that he made a final will giving over 90% of his assets to the creation of the Nobel Prize Foundation.[6] However, Mr. Nobel upset his surviving family with his final will because most of his assets were not bequeathed to them.[7]

In Mr. Nobel’s will, Ragnar Sohlman and Rudolf Lilljequist were named executors.[8] The will read: “As Executors of my testamentary dispositions, I hereby appoint Mr. Ragnar Sohlman, resident at Bofors, Vamland, and Mr. Rudolf Lilljequist, 31 Malmskillnadsgatan, Stockholm, and at Bengtsfors near Uddevalla. To compensate for their pains and attention, I grant to Mr. Ragnar Sohlman, who will presumably have to devote most time to this matter, One Hundred Thousand Crowns, and to Mr. Rudolf Lilljequist, Fifty Thousand Crowns; – Alfred Bernhard Nobel, will dated Paris, 27 November 1895.”[9]

To establish the Nobel Prize, Sohlman spent several years.[10] The will did not detail the rules for selecting award recipients.[11] As a further difficulty, Sohlman had to gather all of Mr. Nobel’s assets spread across several European countries.[12] One anecdote describes how Mr. Sohlman and Mr. Lilljequist decided to move most of Mr. Nobel’s assets to Sweden, but they feared that the French government would prevented that vast amount of money (roughly $150 million) from leaving its country.[13] As a result, the executors traveled around Paris with a horse and carriage collecting shares, bonds and legal documents of the Nobel estate. Then, the assets were shipped to Sweden on rail as registered luggage.[14]

Here, Nobel’s will is an interesting example of the application of the “dead hand.”[15] In this context, Nobel’s dead hand was an overwhelmingly huge hairy one. The creation of the Nobel Foundation is unique because the foundation acts like an investment company and is tax exempt from all taxes in Sweden and in the United States.[16] Also, the monetary award is roughly $100 thousand for the recipient.[17] Further, separate committees complete the actual selection process for the award.[18] As stated earlier, the structure and guidelines for the Nobel Prize are the creation of Mr. Sohlman and were not actually in Mr. Nobel’s will.[19] Fortunately, Mr. Sohlman was an exemplary executor who understand Nobel’s intent in his will for the creation of the Nobel prizes.[20]

Thus, one’s dead hand is only as good as his executors.[21] And in Massachusetts, the importance of the right personal representative is just as important.

[1]See The Conundrum of Alfred Nobel, National Geographic 8-11 (July/August 2017) (summarizing historic context and facts surrounding the Nobel Prize creation).

[2]Id.

[3] Evan Andrews, Did a Premature Obituary Inspire the Nobel Prize, History (Dec. 9, 2016), http://www.history.com/news/did-a-premature-obituary-inspire-the-nobel-prize [https://perma.cc/Z3QA-B434].

[4]Nobel Prize Facts, Nobelprize (Mar. 4, 2018), https://www.nobelprize.org/nobel_prizes/facts.

[5]See supra note 3.

[6]See supra note 1.

[7]Id.

[8]Id.

[9]Full Text of Alfred Nobel’s Will (Feb. 15, 2018), https://www.nobelprize.org/alfred_nobel/will/will-full.html [https://perma.cc/S73F-JF5P].

[10]See supra note 1.

[11]Id.

[12]Id.

[13]Id.

[14]Id.

[15]See, e.g., Garrett Ham, The Problem of the Dead Hand, GarrettHam (Sept. 20, 2013), https://www.garrettham.com/dead-hand/ (discussing the limitations of the deceased to control the living).

[16]See supra note 1.

[17]Id.

[18]Id.

[19]Id.

[20]See Ragnar Sohlman – Executor of the Will, Nobelprize (Mar. 5, 2018), https://www.nobelprize.org/alfred_nobel/will/sohlman.html (summarizes how Sohlman executed Nobel’s will).

[21]See Ham, supra note 15.

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In a recent case argued before the U.S. Supreme Court, a New York-based trust challenged the North Carolina Department of Revenue’s ability to collect of state income taxes from the trust’s earnings. The State of North Carolina justified these taxes, collected even in years that a beneficiary living in the state did not receive any payments, based solely on the beneficiary’s home residence. The Court unanimously affirmed the lower court’s decision – holding that a beneficiary’s in-state residency alone, without actual receipt of income or the right to demand income from an out-of-state trust, did not establish sufficient contact to justify income tax liability from that state.

What does this mean for Massachusetts beneficiaries? That depends on your lawyer first, and your accountant second. As the Court noted, a beneficiary residing in a different state from his or her trust could be taxed if sufficient contacts were established. Their analysis seemed to center upon that beneficiary’s right or expectation of income from the trust, on whether the beneficiary’s home state had any reason to charge income tax. This appears to echo principles of basic common sense. Why would anyone believe that a trust, which was already paying taxes for income in its home state, would have any annual income tax liability in a state that it hadn’t paid income in?

Non-specialist lawyers might be forgiven for not having known these types of tax-related details. But for many Massachusetts accountants that work with clients in estate planning, this simply confirms what was already well known to those having experience in this field. In fact, that the U.S. Supreme Court even had to take up this question is an indication that expertise in the field of taxation may not be as common as it should be for many practitioners.

This reinforces the need for locating specific expertise when choosing professionals to advise on estate planning in Massachusetts. Understanding not only how to transfer, protect and assets, but also how to generally manage and prepare for related tax consequences that come from that, should be a basic requirement for anyone practicing in this field. Continuing education, and working on these issues in a regular basis, is the only guaranteed way to obtain the aggregated knowledge necessary for proper estate planning in Massachusetts. Consider calling our office soon to learn your family’s options with this, and other strategies we offer for estate & tax planning. Together we can discuss the most appropriate plan for your family to reduce legal exposure and potential tax liability. While there are several estate planning attorneys on Cape Cod, our office is definitely unique in using a tailored approach that we feel every family deserves from our combined decades of experience in the law, as well as a close relationship with trusted Cape-based advisors in tax planning.

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“Pop up” is a general description here, and could refer to any form of non-traditional lease with shorter, more informal terms. Some pop-up shops might simply be single day or weekend-long merchandise installations in an existing store, while others could refer to something more like a short-term commercial lease.

Pop-Up Shops Benefit Retail Owners

The pop-up model is great for a business owner in this way, because the storefront can open on a trial or short-term basis. Whether traffic or general demand will be adequate in any given area is a major decision for businesses that need to commit to a long term lease. This flexibility can make or break an entrepreneur’s decision to take the leap to a full shop. Aspiring retailers will likely more often be requesting pop-up arrangements rather than a full leases, as this type of business model grows.

Pop-up Friendly Landlords Will Reap the Rewards

When consumer sentiment changes, business owners too will want better options – and successful commercial landlords will need be flexible to this evolution. Most building and plaza owners want reliable income, which might have once meant large or established national stores. But those owners who can dedicate at least some temporary or shared space will encourage newer and more vibrant businesses into their properties.

How to Negotiate a Pop-Up Lease

The goal of a pop-up lease is to simplify payments and obligations between the landlord and tenant. In most instances, this takes the form of a “pop-up license,” where the landlord becomes the “licensor” and the tenant a “licensee.” Unlike a tenant though, the licensee doesn’t always pay for the associated insurance or utility costs for water or heat, perhaps even electricity. In exchange, the licensor can evict or “relocate” a licensee with little notice or formality, which should avoid drawn out landlord-tenant conflicts.

Just as many business owners may not be ready for these types of agreements, older Massachusetts attorneys might be similarly uncomfortable with the newer, more flexible commitment model. Any interested business and/or building owner should obviously hire legal counsel familiar with pop-up and temporary retail tenancies, in order to ensure the right balance between benefits and obligations is struck. The concepts in these arrangements are not complex, but people generally ar

Where to Find Pop-Up Opportunities on Cape Cod

The Cape, a region with a strong seasonal economy, is actually an area somewhat familiar with the temporary and short-term use of commercial real estate. Storefronts of this kind, whether ice cream parlors or gift shops, have long operated only in the warmer months. So many landlords are familiar with the concept, though perhaps not under a “pop-up” model. Still many are using this phrase to attract would-be tenants who are looking for space & opportunities.

While there can never be a complete listing of pop-up opportunities, a simple browser search for “pop-up stores” in any given town would reveal some of the more frequent locations and regions. Consulting local chambers like the Cape Cod Chamber of Commerce, or organizations like Live.Love.Local would also probably yield a lot of promising leads. One of the more exciting and dynamic opportunities we’ve heard of recently, for example, concerns an “E for All Alumni” (“Entrepreneurship for All”) store, right around the corner from this law firm’s office in Mashpee Commons.

Where to Start

Different businesses require different considerations when it comes to legal needs, and a risk/liability analysis, as well as a business plan overview is usually where the conversation begins. But wherever entrepreneurs and building owners are in their plans, all are encouraged to write or call any time to set up an appointment with a business attorney to create a pop-up store.

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Food Establishments and the Health Codes

The Massachusetts Sanitary Code for “food establishments” is by far the most significant obstacle to allowing pets within a business. Put simply, live animals are not allowed on the premises of any food establishment, with limited exceptions (live seafood is naturally exempt, as are service animals discussed below). Food establishments in the code are defined broadly as operations that store, package, vend or otherwise provide food for human consumption. Restaurants and grocery stores are therefore largely off limits for dogs and pets in general. Sadly, these regulations have little likelihood of changing, since Massachusetts like most states has adopted them directly from the FDA itself.

Service Animals vs. Emotional Comfort Animals

What Is the Liability of Bringing a Dog to Work?

For owners, any dog-related incident at work would apply just as it would in any public place. This generally means that an owner will be responsible for any damage or injuries caused by his or her dog. For employers in Massachusetts, there are some exceptions to this rule since worker’s compensation coverage will usurp any private right of action by an employee for any injuries caused on the job. But members of the public would still be able to recover under those circumstances for injuries caused by any dog owner. Local leash laws, and penalties for non-compliance, should also be carefully considered for any place where the public is allowed.

Additional Considerations for Dog-Friendly Employers

Perhaps more than actual laws and regulations, employers need to pay some attention to exactly how, when and why they want to allow pets in the workplace. An employee guidebook should describe the expectation that all employees maintain absolute control over their animals. Cleanliness and hygiene too should be strictly required, in order to ensure that other employees enjoy a safe and comfortable work environment. An employer should also be cognizant of informing new employees of a dog-friendly workplace policy, to avoid any conflicts from possible allergies or even a fear of certain animals. Likewise for any business that invites the public, it’s a good idea to create some signage displayed in prominent areas to inform visitors that dogs are allowed or present inside.

Beyond these basic considerations, a bring-your-dog-to-work policy can provide real benefits to all involved; the dog, the employee and the business itself. The dog no longer has to spend every day alone for hours on end; the employee gets more time with his or her best friend, and co-workers, along with customers and clients, can enjoy the benefit of added companionship too.

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Enter the Massachusetts “Social Consumption Establishment” for Marijuana

Prefaced by headlines in the on-again-off-again Denver regulations regarding so-called “Cannabis Clubs,” the Massachusetts Cannabis Control Commission draft regulations created a third type of retail license for operators to sell “single servings” of marijuana to consumers on the premises. While the size of such a serving has yet to be defined, our understanding is that these businesses will not be able to serve more than an ordinary dose of THC, e.g. 10mg. These licenses are distinguished as Primary Use or Mixed Use social consumption establishments, which designation depends on whether 51% of the average gross revenue is derived from the sale of marijuana products to be consumed on the premises.

It is ostensibly possible for either “primary” or “mixed use” to exist in the presence of other business types, the only difference between these licenses being revenues. The license requires very strict controls for storage and security, and also that the sales be “closely integrated with the shared business product or service.” Importantly, and probably very disappointing to many restaurateurs, these regulations explicitly forbid the use or consumption of alcohol in any of these social consumption establishments – at least at the same time marijuana is offered. Suggested businesses tailored to social consumption have included:

• Cafes, Bakeries & other food establishments not serving alcohol.
• Massage parlors and spas, clinics etc.
• Movie theaters (not arcades due to other restrictions)
• Yoga Studios, gyms and fitness clubs
• Bud & Breakfast Inns/Hotels

While prospective businesses of this kind can be exciting in concept, from a legal perspective they are not at the top of our recommended models. The reason for this, if it isn’t apparent, is that an owner of the social consumption business — and/or the real estate it occupies — incurs a risk of liability if the consumer causes or is a participant in an accident or other damaging event. And while marijuana advocates may protest that the effects of marijuana are not nearly so detrimental to e.g. hand-eye coordination as alcohol, the reality is that law enforcement and the Courts have not adopted this distinction. Until suitable intoxication testing standards are in place, and until there is more widespread understanding on the effects of marijuana, the same warning will till apply from this office.

The Marijuana Transporter – A Third Party Secure Solution for the Industry

Not to be confused with consumer delivery services, these transporters will be authorized to ship marijuana between licensed establishments (think cultivator to retailer or processor, cultivator or processor to retailer etc.) Many existing operations will operate their own inter-facility shipment, but these third party licensed services will be essential for any of the smaller operators with limited resources, of which the Massachusetts licensing scheme stands to launch quite a few. Where most banks use a “Brinks” or “Loomis” shipper for their cash, it follows that a company that develops an efficient infrastructure for bulk marijuana transport in Massachusetts will be able to enjoy similar success (A little inside knowledge here, but one of our clients that reached out to Brinks learned that they would nearly give away their used vehicle inventory).

Enforcing the Standards for Massachusetts Marijuana – The Independent Testing Lab

On a trip one early September day in 2012 to the west coast, I visited an old friend in Seattle who happened to be working at a testing lab for the medical marijuana industry (Washington passed its own recreational law shortly thereafter). The office itself was a mere two room unit comprising little more than 6-800 square feet. One room acted simply as a reception area, while the other contained a pair of equipment stacks barely larger than component stereo systems.

These units were High Pressure Liquid Chromatography units, or (“HPLCs”), and apart from the desktop computers connected to them, accounted for the entire testing lab operation. That month too, the magazine “High Times” was hosting a Cannabis Cup celebration in the city, and this lab was responsible for all of the entrants to the competition.

Since that day, I’ve long been interested in this particular Cannabis business model from a legal perspective. The office itself, with as many test samples as it had from around the city, probably held less than the legal possession limit for any medical patient. Because of this, the relatively low cost barriers to entry, and because such business requires no interaction with patients or consumers of any kind, the marijuana testing lab in Massachusetts remains a recommendation for our clients to enter.

Massachusetts Marijuana Research Facility Licensure

Another interesting yet obscure license available on the recreational marijuana market is similarly science based, but a lot more focused. While federal law has largely precluded the creation of any such entities in the U.S., they are somewhat common in Israel, where a lot of marijuana studies originate.

Such a research facility is naturally going to materialize in the form of a non-profit, or else will likely be associated with a university, both of which Massachusetts has many —
especially in the medical sciences. So while the federal school funding conflict that currently prevents meaningful research will remain an impediment to the large scale R&D in this field, if the U.S. Congress can find the votes to pass even moderate reforms, we expect Massachusetts will fast become a leader in marijuana research for the foreseeable future.

Whether we see some, most or all of these different marijuana business types open in Massachusetts is a guessing game, but it is certain the Cannabis Control Commission is ready for business. Federal law as of the time of this article remains the most significant obstacle to the industry without a doubt – for banking, insurance and even prosecution from the Department of Justice. The state’s own security, tracking and community engagement requirements are certainly a burden too, but a Massachusetts attorney with marijuana industry experience will be able to successfully guide his or her clients without much issue.

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More than any other state, Massachusetts clearly aimed to establish a regime that accounted for the many different activities related to marijuana, while at the same time attempting to ensure the survival of small businesses over medium to large enterprises. Every applicant must be a registered entity with the Massachusetts secretary of state, whether a corporation, LLC or otherwise. This article details some of the more popular licenses that our clients have shown an interest in over the past few months. A second article covers the remaining adult use marijuana licenses.

Starting a Marijuana Cultivation Operation in Massachusetts

For those hoping to cultivate adult use or “recreational” marijuana beyond mere personal use, there are essentially three different tracks available:

The most widely available license will likely be the standard cultivation license. Per the regulations, a cultivation license allows for cultivation, processing and packaging marijuana for distribution to licensed retailers only – not directly to consumers. Successful applicants will be able to apply for a license based on canopy square footage, as the table below indicates:

These regulations also allow for the much-awaited “craft marijuana cultivator cooperative” license, essentially allowing for Massachusetts residents to form a limited liability company in their application for the cultivation license tiers detailed above, with a few differences. Primarily, where an ordinary cultivation license would only allow for one location, the craft cooperative license permits up to 6 locations for cultivation, and 3 locations for processing/packaging. It was initially thought that these licenses would be limited as to overall canopy size, and would restrict simultaneous ownership of a retail license, but the draft regulations contain no such limitation at this time.

A final cultivator license type is identified by the regulations as a “Marijuana micro-business.” In this business type, an applicant enjoys licensing fee discounts of 50% and can operate as a Tier I or II cultivator only, still with processing and manufacturing capabilities, and additionally may sell its product directly to consumers under the same license. Like the craft cooperative license, the micro-business is strictly available for ownership by Massachusetts residents, and the regulations prohibit a licensee from having any ownership interest in another type of marijuana license.

The Marijuana Niche Market – Becoming a Third Party Marijuana Processor in Massachusetts

For clients calling our firm with an interest in starting a Massachusetts marijuana operation, we have long been recommending that an extraction/processor/manufacturer license is one of the best options available. The reasons for this are many, most importantly that as the marijuana market develops, manufacturing methods and products will almost surely be the most important tool for product differentiation among competitors. A couple of other factors contributing to this recommendation:

• Entry and operational costs to processing and manufacturing are much lower than for cultivation.
• IRS Chapter 280E, an impediment to marijuana sales profit margins allows for “Cost of Goods Sold” ordinary business deductions, and manufacturing is entirely deductible under said regulations.
• Processing and manufacturing operations require little relative space
• Processors do not need to interact directly with the public and enjoy little relative risk

Again, for those interested in the unique cannabinoid compounds within the marijuana plant for its many therapeutic applications, there are a number of different substances that lead to varied desirable extraction outcomes: (alcohol, butane hash oil “BHO,” water, CO2 are among the most popular). Furthermore, based on the wide variety of available delivery methods for marijuana (smoking, vaping, ingestion, sub-lingual, transdermal, topical), the number of potential products in this industry is virtually limitless. It therefore follows that the number of processors and manufacturers that participate in this market should also be limitless.

Opening a Retail Adult Use Massachusetts Marijuana Establishment

Apart from the Micro-business detailed above, an applicant can only sell marijuana to the 21+ public, up to one ounce of marijuana (or 5 grams of extract) with a traditional marijuana retailer license. This type of license allows for any retailer to obtain its products from any of the cultivation licensees, or any third party processor/manufacturers. There are two primary types of a license to sell marijuana to consumers within these guidelines:

1. Brick and Mortar Establishments – Licensed only in a specific location, these entities can sell to other entities, general consumers over the age of 21, and licensed Massachusetts medical marijuana patients.
2. Delivery-Only Retailer – These licensees do not provide a retail location open to the public, but are authorized to deliver directly from a marijuana cultivator facility, craft marijuana cultivator cooperative, marijuana product manufacturer or micro-business.

Both types of retail license will require similar but particular requirements inherent with each operation regarding tracking and compliance. And while security will most certainly represent some of the greatest concerns for delivery retailers, we anticipate many operators in this field given the increasing use of delivery by consumers in general. A third type of retail license, the “social consumption” establishment is a very particular business type that we profile in our next article on the Massachusetts adult use law.

Overall, the Cannabis Control Commission appears to have developed a very far-reaching set of regulations that were clearly informed by a wide variety of experiences throughout the world marijuana market. However robust and accessible this market may appear, like the medical marijuana law, these adult-use regulations still require a very detailed and intensive process for marijuana business applicants in Massachusetts. Naturally then, applicants are better off to consult experienced attorneys in the Massachusetts marijuana industry early, rather than late in the game.

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Massachusetts Businesses Disrupted by Blockchain – The Legal Field

Law is easily one of the most obvious industries subject to change first under blockchain technologies. One need only look at the examples that are often used to explain the blockchain’s utility to understand why. Below are two diagrams featured in the guide “Blockchain for Dummies” offered by IBM:

The first diagram indicates the way we presently manage automobiles, from their creation to their financing and finally their destruction. The parties to these transactions need to coordinate and exchange several aspects of the automobile throughout its lifetime, and all of these parties keep their own individual transfer records. A great deal of time and money goes into these records, the titling and registration of an automobile, especially where financing is involved. Additionally, each party in these processes must add the extra step of reconciling its own recordkeeping system with the records of every other party.

The second diagram explains why blockchain technology will eliminate much of this so-called “friction” in the transfer process. Through the shared or distributed ledger, every party holds the same instantaneous record when each transfer occurs. And rather than the necessity for each party to create its own contracts detailing the transfer process, the necessary conditions for fulfilment, and the infrastructure to communicate and execute these conditions and processes (i.e., legal work), the blockchain handles all of this.

How Blockchain Will Revolutionize the Massachusetts Insurance Industry

This new useful tool in the transmission, receipt and storage of information looms large over all aspects of the insurance industry; from insurance brokerage, to underwriting, to assessment and the claims process. So much of this information-based industry, that requires trust on the one hand, and an exchange of private data on the other, stands to see massive changes in the next 5-10 years. The creator of Ethereum himself, Vitalik Buterin, used crop insurance as an example in his whitepaper:

One can easily make a financial derivatives contract but using a data feed of the weather instead of any price index. If a farmer in Iowa purchases a derivative that pays out inversely based on the precipitation in Iowa, then if there is a drought, the farmer will automatically receive money and if there is enough rain the farmer will be happy because their crops would do well.

Vitalik’s example is a type of “parametric insurance” that can payout automatically based on independent and objective measures, rather than through the process around and interpretation of, a claims adjuster. It is easy to see the time and money saved here. To take the example one step further, the smart contract we’re imagining could even scale payouts based on the severity of the measure, for example ranging a 20% policy payout for minimal drought through 100% payout for a major one.

Another development in the industry is peer to peer insurance, much in the way that crowdfunding recharacterized mass investment models, that may drastically change the structure of the entire industry. As its name implies, the P2P insurance model uses a secure blockchain medium to link with a group of mutual “peer” policyholders as underwriters directly, thereby reducing the present layered profitmaking model with administrative and commission fees. A group of peers can theoretically come together to arrive at a consensus of the conditions on the blockchain that would trigger a payout, and determine how much such a payout would be.

Technology Efficiencies Carry Their Own Risks

For all of its promise, and as much as consumers may be ready to turn their demand for professional services to more technological solutions, the benefits of block chain also create their own risks. In today’s very hackable world, it isn’t extraordinary to imagine for example the hacking of a weather data feed to trigger policy payouts. Protections, checks and balances can be put in place to significantly protect against these risks, but the threat is still real. Regulations too, will slow the growth of smart contracts until a reliable model is proven.
Professionals and consumers alike should nevertheless continue to learn about the potential effects of blockchain on our businesses and lives in general, as these applications are being developed exponentially. The practice of law and insurance may be the first industries, to feel blockchain’s effects, but startups are using the technology in hundreds of fields ranging from energy to music. To learn more about how the blockchain and cryptocurrency business can benefit your life, call our office to contact a Massachusetts blockchain attorney. McNamara & Yates is an enterprise level cryptocurrency exchange service provider.

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