Attorney Abigail V. Poole

Is a Voluntary Probate Right for You?

May 17, 2022 by Attorney Abigail V. Poole

By Attorney Abigail V. Poole

After a loved one passes away, sometimes probate of one or more assets held in the deceased’s name is necessary. Probate is the process by which a person is given legal authority by the court to access, manage and distribute the assets titled in the individual name of the deceased at the time of death. There are three (3) common types of probate in Massachusetts from which to select depending on assets, family dynamics, and other factors. The simplest, quickest and least expensive type of probate is a voluntary administration.

A voluntary administration is available if the deceased died with $25,000 or less in total probate assets, plus not more than one (1) vehicle in his or her individual name. Other than the vehicle, the assets can be bank accounts, certificates of deposit, unclaimed property, stock, and savings bonds. However, a voluntary administration may not be filed for estates where the decedent owned an interest in real estate. If a Voluntary Personal Representative later discovers assets that cause the total estate value to be more than $25,000 or the Voluntary Personal Representative requires full legal authority to administer an aspect of the estate, the voluntary administration can be converted to one of the other types of probate.

A great example of when a voluntary administration may be a good fit is the situation where the surviving spouse discovers $15,000 of stock in the deceased spouse’s individual name. The surviving spouse may file a voluntary administration and once the voluntary statement is certified by the court, that surviving spouse will be able to gain access and direct the sale of the stock and distribution of the proceeds, or direct the transfer of the stock to him- or herself.
At Samuel, Sayward and Baler LLC, an experienced attorney will assess the deceased’s assets and other relevant information to assist you with determining the type of probate that best fits your situation. This thoughtful and comprehensive approach to filing for the most suitable probate process means that you will be better prepared to confidently address your current and future estate responsibilities.

Attorney Abigail V. Poole is an associate attorney with the Dedham firm of Samuel, Sayward & Baler LLC which focuses on advising its clients in the areas of trust and estate planning, estate settlement and elder law matters. She is an active member and current President Elect of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (NAELA). This article is not intended to provide legal advice or create or imply an attorney-client relationship. No information contained herein is a substitute for a personal consultation with an attorney. For more information visit ssbllc.com or call 781/461-1020.

May, 2022
© 2022 Samuel, Sayward & Baler LLC

A Trap for the Unwary: Gifting and Long-term Care Medicaid Benefits

April 13, 2022 by Attorney Abigail V. Poole

“I want to give some money to my child – is that okay to do?” I often hear this question from elderly clients who visit me for the purpose of long-term care planning. The short answer is that you are free to gift a certain amount to your adult children without filing gift tax returns but it may adversely impact your eligibility to receive Medicaid benefits to pay for long-term care in a nursing home later.

Let’s say you are contemplating giving $16,000 to your child. From a tax perspective, an individual is permitted to give up to $16,000 to a recipient each year without filing a federal gift tax return. This is the annual gift tax exclusion amount as of 2022. Annual exclusion gifts may be made to multiple recipients. For example, you may give $16,000 to each of your children Alex, Ben and Cathy during 2022. If you are married, each spouse may give $16,000 to each child, meaning that Alex, Ben and Cathy may each receive $32,000, allowing you to gift $96,000 in 2022 without filing federal gift tax returns.

However, gifting almost $100,000 to your children in 2022 will be problematic should you require Medicaid to pay for your long-term care in a nursing home within the five-year period following the gifts. Medicaid is a joint federal/state government benefits program that requires specific medical and financial criteria are met before someone is eligible for Medicaid benefits to pay for long-term care nursing home costs. Upon application for such benefits, MassHealth (the agency that administers the Medicaid program in Massachusetts) will require an applicant to provide detailed financial information going back five years. This includes disclosing any gifts made during that period. If you made gifts during the so-called five-year look-back period, Medicaid considers the gifts to be disqualifying transfers. The reasoning is that if you had retained the money you gifted to your children, you would have been able to pay for the nursing home expenses out of your own pocket instead of Medicaid paying for you.

If Medicaid determines the gifts are disqualifying transfers, the recipients must return the gifted money to you to “cure” the transfer so you can pay the nursing home costs out of pocket until you are financially eligible for Medicaid again. If the money is not returned, the person who made the gift will be ineligible for benefits for some period of time. The period of ineligibility is calculated by dividing the amount of the gift by the average daily cost of a nursing home as determined by the state (currently $410). For example, that $16,000 gift to your child would result in around 39 days of ineligibility for Medicaid benefits. The real kicker is that the 39 days of ineligibility does not begin until the applicant “would otherwise have been eligible”. That means the disqualification period for making a gift begins to run after the applicant has run out of money. This trap for the unwary applies not only to gifts of money but also to gifts of other assets, such as real estate.

Making gifts of your assets to your children while also planning for a future in which you may require long-term care in a nursing home requires careful navigation. At Samuel, Sayward and Baler LLC, an attorney experienced in long-term care planning can assist you with avoiding such traps so that you and your children have peace of mind in case long-term care is necessary.

Attorney Abigail V. Poole is an associate attorney with the Dedham firm of Samuel, Sayward & Baler LLC which focuses on advising its clients in the areas of trust and estate planning, estate settlement and elder law matters. She is an active member and current President Elect of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (NAELA). This article is not intended to provide legal advice or create or imply an attorney-client relationship. No information contained herein is a substitute for a personal consultation with an attorney. For more information visit ssbllc.com or call 781/461-1020.

April, 2022

Five Ways to Take Care of Your Pets in Your Estate Plan

March 2, 2022 by Attorney Abigail V. Poole

A recently released preliminary study suggests that owning a pet for five or more years may slow cognitive decline in adults 65 years of age or older. As someone who grew up with pets and recognizes the joy, humor, companionship and other benefits that pet ownership provides, that study got me thinking about what could be done to care for the critters that enrich our lives when we become incapacitated or pass away. To start with, the ASPCA suggests creating a contact list of caretakers and documenting your pet’s food, medication and behaviors for emergency purposes. In addition to those recommendations, here are five ways to include your pets in your estate plan, to make sure they are taken care of if you are not able to do so.

Memorandum

Your Last Will and Testament directs the distribution of your assets after you pass away, including your pets. If you have a specific individual you wish to take custody of and care for your pet after you pass, you may list the pet and individual on a Memorandum. The Memorandum is incorporated by reference into your Will yet permits you to update it if you later get another pet or change your mind about who you would like to care for your pet.

Gift for Pet Caretaker

The Will can also include a provision that gives a specific amount of money to the selected pet caretaker in order to assist with anticipated veterinary expenses, food, toys, etc. for your pet. Such gifts are usually small, ranging from $1,000 to $40,000, in my experience, depending on the age of your pet and the pet’s anticipated needs.

Revocable Living Trust Pet Sub-Trust

If you already have a Revocable Living Trust as part of your estate plan and would like to gift a larger amount of money to your pet’s caretaker but prefer that the funds are managed by someone else, then a simple pet sub-trust as part of your Revocable Living Trust may be a good option.

Since 2011, residents of Massachusetts have been permitted to create trusts for the benefit of their pets. The trust is legally binding and must benefit a pet that is alive during the trust creator’s lifetime. There is a manager (Trustee) appointed to administer and distribute the trust money to a separate person who is the pet’s caretaker. The trust describes the purposes for which money may be distributed to the caretaker for the pet’s benefit, such as grooming, training, veterinary care and more. If the amount held in trust is challenged, the court may determine if it is excessive in connection with the needs of the pet, and reduce the amount so long as it will not negatively impact the care, maintenance, health or appearance of the pet. The trust ends at the death of the last surviving pet and directs that the remaining funds, if any, are distributed according to other terms of the trust.

Stand-Alone Pet Trust

If you are contemplating setting aside hundreds of thousands or millions of dollars to pay for your pet’s expenses because the pet has a long life expectancy or significant health care needs, a stand-alone pet trust may be a better fit for you. But keep in mind that funding the trust with millions of dollars may spell Trouble – as in the pet trust created for Leona Helmsley’s dog, Trouble, who the court determined did not require $12 million dollars to pay for the pup’s lifetime care, and redirected the distribution of a majority of those funds to others. While the stand-alone pet trust must adhere to the same Massachusetts laws mentioned above, it also allows you to include more complex wishes regarding the compensation of the Caretaker and Trustee, and the distributions for your pet’s benefit, such as transportation expenses, boarding, euthanasia and disposition of remains, and more.

Your Durable Power of Attorney

The above documents address the care of your pet after your passing, but what if you are alive and can no longer care for your pet yourself due to incapacity? In such situations, your Attorney-in-Fact under your Durable Power of Attorney may step in. Your Power of Attorney may direct that your assets may be used to pay for food, medical treatment and other necessities, including keeping your pet at home as long as possible, as your Attorney-in-Fact decides appropriate.

At Samuel Sayward & Baler LLC, we recognize that pets are cherished family members. Happily, there are many options available to ensure your pet is well cared for in the event of your incapacity or death, and we will guide you through the process of determining the best way to provide for them in your estate plan.

Attorney Abigail V. Poole is a senior associate attorney with the Dedham firm of Samuel, Sayward & Baler LLC which focuses on advising its clients in the areas of estate planning, estate settlement and elder law matters. She is an active member and President-Elect of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (NAELA). This article is not intended to provide legal advice or create or imply an attorney-client relationship. No information contained herein is a substitute for a personal consultation with an attorney. For more information visit www.ssbllc.com or call 781/461-1020.

March, 2022

Ugly Sweater Contest Results and Probate Court Delays Persist

January 12, 2022 by Attorney Abigail V. Poole

The recent increase in positive COVID-19 cases in the Commonwealth of Massachusetts due to the significantly contagious nature of the latest variant and other factors have led to a reduction of in-person staff at the trial courts, including the probate courts. As ordered by the Chief Justice of the Trial Court, the probate courts have decreased the in-person staff to fifty percent (50%) or less of the total number of staff, and placed staff members on teams that rotate between working remotely and in-person at the office for the health and safety of staff and visitors. This Order is in effect from January 3, 2022, until further notice. The courts remain open to the public for in-person visits unless they are temporarily closed, which closures are noted on this Massachusetts government website, and this Twitter account.

Why Does This Matter to You?

If you are already experiencing holdups in the progress of a probate matter, please be aware that there may be further delays. Likewise, if you are about to file pleadings (the documents that are filed with the Court asking the Court to take some action) in an ongoing matter with the probate court, it may take much longer than usual to receive the response or documentation requested. In our experience, where the initial appointment of a Personal Representative of an estate may have taken 3 to 4 months in the past, we are now waiting up to 6 months or longer for this to occur.

What Are We Doing About It?

Once we submit pleadings to the probate court, we track the progress of your case electronically. We also contact the probate court representatives regularly by telephone, video conference and in-person when possible to be proactive in the event there is an issue that may be easily resolved, and to gently but firmly encourage forward movement on your behalf.

What Can You Do About It?

Have patience. The courts are aware of the frustration and impact caused by the delays as they struggle to address the backlog of cases and meet increased demand while keeping their staff and visitors healthy and safe.

Also, seriously consider completing your own estate plan that avoids probate by creating and funding one or more Trusts, which will allow your estate to bypass the probate court at your death.

Now more than ever is a good time to include a Trust as part of your estate plan. At Samuel, Sayward & Baler LLC, a knowledgeable attorney will explain how a Trust works and the steps you need to take in order to ensure your estate avoids probate at your death. If probate is necessary, Samuel, Sayward & Baler LLC will diligently work with the probate court to advance your probate case through the administration process as quickly as possible.

January, 2022

Make Your Attorney-in-Fact Your Superhero

December 7, 2021 by Attorney Abigail V. Poole

Five Situations Where an Estate Is Ripe for Catastrophe

November 2, 2021 by Attorney Abigail V. Poole

“Handling my father’s estate after his death was a nightmare – I don’t want to leave the same kind of mess for my children.” This is a comment I regularly hear from clients who are meeting with me to create their own estate plan because they want to make it as easy and painless as possible for their family to settle their estates after they pass away. The good news is that there are steps you can take now to ensure the administration of your estate goes smoothly. Here are five situations where difficulties commonly arise during the administration of an estate, and what you can do now so that your children aren’t saying the same thing after your death.

1. Unclear Tangible Personal Property Distribution Wishes

Surprisingly, or perhaps not so surprisingly, tangible personal property distribution can prolong the administration of an estate. Tangible personal property consists of your personal items – for example, vehicles, clothing, furniture, art work, collectibles, and jewelry. I regularly assist Personal Representatives who encounter conflict among beneficiaries (recipients of estate assets) over the distribution of tangible personal property because of its sentimental value.

One way to reduce potential conflict over the distribution of tangible personal property is to create an itemized list of your important tangible personal property and the beneficiaries to whom you wish those items to be distributed. Another way is to give away the items while you are alive and able to do so.

2. Out-of-Date Estate Plans

Your financial assets, goals and who you designate to manage your estate when you are 35 years old is likely to be different when you are 50 years old and then again when you are 70. If you appointed a family member, friend or professional as your Personal Representative or Trustee who has since died or become incapacitated, it may be difficult to find someone else willing to take on the responsibilities of administering your estate. Additionally, the beneficiaries to whom you wish to distribute your estate after your death may be very different. Perhaps your adult children are now financially well-off and you want only your grandchildren to benefit from your estate assets. Or perhaps you intended a certain asset, such as a house, to be distributed to one of your adult children but you are now estranged from that child and prefer your house to be distributed to another.

A good rule of thumb is that you should review your estate plan to ensure it has the appropriate people designated to administer your estate and receive your estate assets whenever the relationship, health or financial circumstances of you and/or your beneficiaries change, or about every five (5) years.

3. Blended Families with Adult Children

One specific situation that is ripe for conflict is a blended family. Oftentimes the spouses of a second or third marriage bring with them significant assets and adult children who may expect to inherit their parent’s assets soon after their parent’s death. You may unintentionally create strife between your surviving spouse and your adult children by giving your assets to your surviving spouse who uses them to pay for significant health care expenses and leaves nothing for your adult children. Or, your adult children may have poor interpersonal relationships, known or unknown to you, which may have a negative impact on the administration of your estate if an adult child is selected to be Personal Representative or Trustee.

You can reduce the likelihood of conflict among your children and surviving spouse after your death with a prenuptial agreement and estate plan. You can enter into a prenuptial agreement that outlines what happens to your assets at your death as well as divorce. The prenuptial agreement informs and works hand-in-hand with your estate plan documents. Some couples create an estate plan together with the same estate planning attorney and others prefer to retain separate estate planning attorneys.

4. A Voluminous Number of (Forgotten) Assets

Take a moment to think about all of your assets. Do you have any old bank accounts in another state? Or stock certificates or savings bonds tucked away somewhere? What about one or more life insurance policies stashed in a safe deposit box only you can access? How about an ownership interest in real estate in another state with another family member? The more assets you have, the more time-consuming and complicated the administration of your estate will be.

To make things easier on your Personal Representative or Trustee after your death, there are a few things you can do now. Carefully consider if you need to have multiple savings accounts or if you can consolidate them. Periodically check the unclaimed property divisions of states in which you have resided for stock dividends or forgotten bank account balances and file a claim to obtain the property. Create a list of all your assets, update it regularly and let a trusted family member or friend (and your estate planning attorney!) know where to find the information in case something happens to you.

5. Do Nothing

A guaranteed, surefire way to make the administration of your estate difficult is to do absolutely nothing. It may result in forgotten assets appearing later which will require a late and limited probate proceeding. Doing nothing could lead to your estate assets passing to distant relatives, if any, or to the Commonwealth of Massachusetts. Doing nothing may cause a public administrator to be appointed to administer your estate in a way you did not intend.

Do something. If you are reading this article, you have already taken an important first step to learn more. Now take the next step and meet with an experienced estate planning attorney to create or update your estate plan.

A knowledgeable estate planning attorney will guide you through the steps necessary to avoid leaving a mess for your family to deal with after your death. From advising you to designate the appropriate beneficiaries of your retirement accounts to creating an estate plan for your blended family to periodically getting in touch with you to remind you to review and update your estate plan, the attorneys at Samuel, Sayward & Baler LLC are here to assist you so that the next generation will visit their attorney and say, “my father had his estate plan in place and made it easy for us to administer – I want to do the same for my children.”

Attorney Abigail V. Poole is an associate attorney with the Dedham firm of Samuel, Sayward & Baler LLC which focuses on advising its clients in the areas of estate planning, estate settlement and elder law matters. She is an active member and Vice President of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (NAELA). This article is not intended to provide legal advice or create or imply an attorney-client relationship. No information contained herein is a substitute for a personal consultation with an attorney. For more information visit www.ssbllc.com or call 781/461-1020.

November, 2021

What Is Supported Decision-Making?

September 15, 2021 by Attorney Abigail V. Poole

By Abigail V. Poole, Esq.

“A friend of mine was telling me about a bill in the Massachusetts legislature for supported decision-making – do you know anything about that?” I explained to my client that supported decision-making is a nationwide movement to develop legal guidelines to permit an adult with intellectual or developmental disabilities, such as Autism or Down Syndrome, to make his or her own health and financial decisions with the support of family members, friends and professionals. These “supporters” are a team, ranging from two to ten trusted individuals, who help the disabled person by discussing the advantages and disadvantages of a decision. The supporters’ roles are outlined in an agreement with the disabled adult who retains the authority to make the final decision for him- or herself.

A supported decision-making agreement is an alternative to a Guardianship in certain situations. Oftentimes, a Guardian is appointed by the court to make health care decisions on behalf of a disabled adult. A Guardianship can be needlessly restrictive on a disabled adult’s independence, especially when the disabled adult is capable of making the decision about his or her own care if individualized support and discussion is available.

To date, around ten states have enacted supported decision-making legislation, and Massachusetts has conducted a successful pilot program utilizing supported decision-making. In March 2021, the proposed Massachusetts bills were referred to the Joint Committee on Children, Family and Persons with Disabilities.

At Samuel, Sayward & Baler LLC, an attorney who is up-to-date about the latest trends and legislation can discuss the current and potential options available for you and your family, and guide you through the preparation of an estate plan to assist your family member with special needs.

Attorney Abigail V. Poole is an associate attorney with the Dedham firm of Samuel, Sayward & Baler LLC which focuses on advising its clients in the areas of estate planning, estate settlement and elder law matters. She is an active member and current Vice President of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (NAELA). This article is not intended to provide legal advice or create or imply an attorney-client relationship. No information contained herein is a substitute for a personal consultation with an attorney. For more information visit ssbllc.com or call 781/461-1020.

September, 2021

What is a Life-Sustaining Treatment Order?

August 25, 2021 by Attorney Abigail V. Poole

What is a Medical Order for Life-Sustaining Treatment (MOLST)? How do you complete a MOLST form? Is a MOLST form the same as a Health Care Proxy? Is it part of my estate plan? Watch the video to learn the answers to these questions and more. For additional information about the MOLST form, visit the website at molst-ma.org.

To contact us, please call 781-461-1020 or visit our website at ssbllc.com.

Medicaid (MassHealth) Estate Recovery Recent Updates

July 21, 2021 by Attorney Abigail V. Poole

Did you know that Medicaid (MassHealth) is entitled to reimbursement from your probate estate after your death if you received benefits to cover your long-term health care expenses in a skilled nursing facility during your lifetime? Medicaid recently updated the regulations regarding estate recovery, which attorneys from the Massachusetts chapter of the National Academy of Elder Law Attorneys (MassNAELA) discuss in this short video. Watch here.

To learn more about these recent estate recovery updates, you are invited to register and attend MassNAELA’s webinar on Wednesday, July 28, 2021 at 10:00 a.m. Registration link here.

**Last Chance to register to attend our Smart Counsel webinar about this summer’s hot real estate market with Attorney Suzanne Sayward and a panel of realtors on

Thursday, July 22, 2021 from 6:00 p.m.-7:30 p.m.

Join us to learn tips and tricks for buyers and sellers. Attendees will have the opportunity to ask questions.

Contact Victoria Ung at 781-461-1020 or ung@ssbllc.com to reserve a spot for you and a friend. The program is free but registration is required.

What Are Five Duties of a Probate Estate’s Personal Representative?

June 8, 2021 by Attorney Abigail V. Poole

By Abigail V. Poole. Esq.

Sometimes I like to think of administering a probate estate as similar to investigating and solving a mystery. The Personal Representative (formerly known as Executor) of the estate is the Detective. The Personal Representative takes steps to administer the estate by accessing and consolidating estate assets much like a Detective discovers clues and pieces them together one at a time to solve a mystery. Simultaneously, the Personal Representative keeps in mind certain duties while performing these tasks due to his or her fiduciary position much like a Detective who follows the laws while investigating the mystery. Here are five duties the Personal Representative must obey while “solving the mystery” of probate administration.

Follow Directions

The Personal Representative’s most important overall duty is to follow the directions left in the deceased’s Last Will and Testament and the relevant Massachusetts laws. The Will works hand-in-hand with the laws; it must be filed with the probate court, which approves the appointment of the Personal Representative. If the deceased did not leave a Will expressing the deceased’s intentions, then the intestate laws of Massachusetts govern the estate administration.

The Personal Representative is also duty-bound to administer the probate estate expeditiously and efficiently in a way that is consistent with the best interests of the estate. For example, if the deceased possessed an expensive diamond necklace at the time of her death and she stated in her Will that the necklace should be distributed to her daughter, then it is the Personal Representative’s responsibility to do so. However, if the diamond necklace is the only valuable asset and the estate has significant expenses and debt, then the Personal Representative may need to sell the diamond necklace to pay the estate expenses and debt instead of distributing the necklace.

Be Loyal and Prudent

The Personal Representative has a duty of loyalty. The Personal Representative’s actions must be impartial toward all the parties involved (i.e., he or she cannot favor one party above another unless directed by the law or Will). The Personal Representative is also obligated to administer the estate with care and prudence by protecting the interests of the estate and administering the estate for the benefit of all the beneficiaries (the ultimate recipients of the estate distributions). Oftentimes, at the beginning of the probate process the Personal Representative may not have accurate information about all the assets owned by the deceased at the time of death. This means there may be valuable assets discovered after the Personal Representative’s appointment. In the case of the diamond necklace, it would be prudent of the Personal Representative to refrain from distributing or selling the diamond necklace until all the assets are discovered and weighed against the anticipated estate expenses and debt.

Find the Assets

The Personal Representative must investigate, determine, collect and inventory all the estate assets after appointment. Typically, an estate bank account is opened to consolidate and retain the balances from the deceased’s individual bank accounts. The Personal Representative is responsible for determining the value of the assets as of the deceased’s date of death. With respect to the diamond necklace, the Personal Representative should have it appraised to determine its value in the event it needs to be sold to pay the estate expenses and to include on the estate inventory. The inventory is a list of all the assets of the estate and their values that will be provided to the probate court or beneficiaries.

The Personal Representative is obligated to collect the income, interest and refunds due to the deceased or the estate, and dividends from stock.

Protect the Assets and Pay the Expenses

The Personal Representative has a duty to secure, safeguard and manage the estate assets. The diamond necklace should be securely stored until a decision is made to distribute or sell it, and insurance maintained for it, as necessary. The Personal Representative is responsible for collecting payments on any outstanding loans due to the deceased’s estate.

The Personal Representative must also pay estate expenses, such as funeral costs, fees to file assorted tax returns, and the fees of professionals to accomplish these goals (e.g., accountant, attorney, jewelry appraiser). If there is outstanding debt, such as a mortgage, credit card or Medicaid claim, the Personal Representative must prioritize payment of the debt according to the laws.

A crucial responsibility of the Personal Representative is to track all the income and expenditures of the estate. These records will assist the Personal Representative with making decisions regarding payment of expenses and debt during the administration of the estate. It will also demonstrate to the beneficiaries and the probate court that the Personal Representative administered the estate properly via an account (report).

Distribute the Assets

The final obligation of the Personal Representative is to distribute the remaining probate assets to the beneficiaries as directed in the Will or by law. Luckily, the Personal Representative discovered other assets to cover the estate expenses so the diamond necklace was distributed to a grateful daughter.

Every good Detective has a partner to help solve the mystery. Samuel, Sayward & Baler LLC can partner with you to find, protect and distribute the probate assets in accordance with the deceased’s instructions or the laws. Our attorneys are dedicated to guiding you through the probate administration process to ensure you adhere to your duties as the Personal Representative to successfully complete settling the estate.

June, 2021