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Attorney Abigail V. Poole

The Do’s and Don’ts of Estate Planning According to the Movie Knives Out

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Over the holidays, I had the pleasure of seeing the movie Knives Out in the theater.  Knives Out is about an elderly author who dies shortly after a family gathering, and the subsequent inheritance of his multi-million-dollar estate.  The plot slowly reveals that the author’s death and his relationships with his family members and employees may not all be as they first seem. Naturally, I was curious to see the extent of artistic license taken versus my “real world” perspective as an estate planning attorney and probate administration attorney with regard to the inheritance and dealing with large estates. Here are a few do’s and don’ts of estate planning according to the movie Knives Out in comparison to the actual practice of estate planning and administration (warning – spoilers ahead).

Do Update Your Estate Plan Regularly to Reflect Your Wishes. In the movie, the author updates his Last Will and Testament shortly before his death and drastically changes who will inherit his estate from his family to an employee, thereby cutting off his family members from receiving any portion of his estate.

Practically, his family members could contest his Last Will and Testament in court for several different reasons in an effort to invalidate the Will and inherit the estate instead.  To combat an anticipated challenge to the Will, a so-called “no contest” provision (also known as an “in terrorem” or “poison pen” provision) may be included in a Will.    The no contest provision basically states that if any person who stands to inherit a portion of your estate challenges the Will he or she will receive nothing.  Such a provision is most effective when a person has something to lose in the event of a contest and it is clear that the Will creator intended to include the provision.  Not all states recognize these provisions as valid but Massachusetts does. Incidentally, part of Knives Out was filmed in Massachusetts at the Ames Mansion in Borderland State Park located in the towns of Easton and Sharon.

Don’t Tell Your Family Members That They Are Disinherited Otherwise It May Result in Your Untimely Demise If You Are A Rich Author. The author tells some of his family members that they are disinherited from his estate and will no longer receive financial support from him while he is alive. This leads to the author’s demise, which is investigated by an eccentric and cunning southern gentleman detective to determine if the author was, in fact, murdered, and by whom. The detective’s quest to discover the murderer leads him to the employee who is named to inherit the estate, which brings us to the last avenue by which the family could inherit the author’s estate: the so-called “slayer statute”. Under the slayer statute, if the person who stands to inherit from an estate is convicted of the deceased’s first-degree murder, second-degree murder or manslaughter, he or she is prohibited from receiving the inheritance (G.L.c. 265, §46).

In reality, it is your decision as to the information you wish to share with your family members about your estate plan. If it is important to you to be transparent about your wishes and you are comfortable sharing that information, you may wish to speak with each family member alone or hold a family meeting or simply provide copies of your estate plan. At the very least, provide your family members with your estate planning attorney’s contact information so they know who to call for guidance after your death.

Do Share Information About The Inheritance After The Person’s Death If You Are The Personal Representative. The Personal Representative (Executor) of the deceased’s estate must administer the estate according to the deceased’s Will or the state intestacy laws. One of the Personal Representative’s administrative duties is to inform those who will be receiving inheritances from the estate. The Personal Representative should work closely with an attorney to administer the estate properly, including filing probate pleadings, to ensure he or she completes all the necessary tasks according to certain deadlines to reduce the risk of liability.

Don’t Expect A Reading of The Will To Learn About Your Inheritance. The reading of the author’s Will is a pivotal and dramatic moment in Knives Out. In reality, readings of Wills rarely take place after the deceased’s death. Instead, copies of the Will are provided to the recipients of the estate by the Personal Representative.  Additionally, the original Will is filed with the probate court along with the pleadings and becomes public record.

If you have some free time and enjoy movies with well-crafted dialogue delivered by a talented multigenerational cast, surprising plot twists and turns, and filmed in Massachusetts, I suggest you see Knives Out. It is not only entertaining but also highlights the importance of having an up-to-date estate plan in place.

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 such as long-term care planning. She is an active member 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.

January, 2020

© 2020 Samuel, Sayward & Baler LLC

Five Important Numbers to Know for Long-Term Medicaid Benefits

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“What happens if I need long-term care in a nursing home and I can’t afford to pay for it?” I hear this question frequently from clients who are concerned about long-term care because the cost of nursing home care is so high. In Massachusetts, nursing home care costs anywhere from $11,000 to $17,000 per month ($132,000 to $204,000 per year) and continues to increase regularly. The short answer is Medicaid (MassHealth), a joint federal/state government benefits program, will cover your long-term care nursing home expenses so long as you meet the medical and financial eligibility criteria for the program. Here are 5 important numbers to keep in mind with respect to eligibility for long-term care Medicaid benefits in Massachusetts.

You Must Be 65 Years of Age or Older. 

The first hurdle to apply for and receive Medicaid long-term care benefits is that you must be 65 years of age or older.

You May Not Have More Than $2,000 of Countable Assets. 

Medicaid has strict limitations with regard to the value of assets an individual may own and qualify for long-term care Medicaid benefits to pay for nursing home care.  Assets may be deemed to be “non-countable,” “inaccessible” or “countable.”  Countable assets include assets such as bank accounts, investments, most retirement accounts and the cash value of life insurance, to name a few.  An individual may have only $2,000 in countable assets in order to be eligible for long-term Medicaid benefits.  Non-countable assets include pre-paid burial accounts, one automobile and a primary residence.  Inaccessible assets are less common and include things like the proceeds from a lawsuit that has not yet settled or an anticipated inheritance during the estate administration phase and before distribution. Countable assets above that $2,000 threshold must be spent down (in permissible ways) before eligibility will be achieved.

A Spouse Living in the Community May Keep an Additional $126,420 of Countable Assets.

If the individual who is residing in the nursing home and applying for Medicaid benefits has a spouse who is living in the community (i.e. not in a nursing home) that community spouse has asset limitations, too.  The spouse is allowed to own only $126,420 of countable assets for 2019.  This amount, called the Community Spouse Resource Allowance (CSRA), is typically increased every year. This means that a married couple living in Massachusetts may have a combined total of $128,420 in countable assets (2019).  If they have additional countable assets, such as an investment account or an IRA worth $100,000, then those funds must be spent down before the nursing home spouse will be eligible for Medicaid benefits.  An experienced elder law attorney can advise a married couple of options for dealing with excess assets in this situation.

Beware the 5-Year Look Back Period!

An important thing to remember about Medicaid benefits eligibility is that Medicaid will review any transfers of your assets made within the five years (60 months) prior to the Medicaid application.  This is often referred to as the 5-year look back period. Medicaid can request copies of account statements for the last five years to check for gratuitous transfers.  For example, if you gifted $15,000 to your child three years prior to applying for Medicaid benefits, Medicaid will view this as a disqualifying transfer of funds because you could have otherwise utilized that money to cover a month of your nursing home expenses. Disqualifying transfers made within the 5-year look back period will result in a period of ineligibility.

The Applicable Divisor is Currently $367.21 Per Day.

Medicaid determines the period of ineligibility for Medicaid benefits due to a disqualifying transfer by dividing the value of the asset transferred by the average daily cost of a nursing home as determined by the state. As of November 1, 2019, this transfer divisor is $367.21 per day in Massachusetts. This means that $15,000 you gifted to your child three years ago will result in 41 days of ineligibility for Medicaid benefits to you now.  But here’s the kicker – the disqualification period only begins to run once you have no more than $2,000 of countable assets.  This means that after all of your funds are spent, you will then be ineligible for Medicaid benefits for 41 days. This is a serious ‘trap for the unwary’ and why long-term care planning is so important.

Another trap for the unwary can occur when someone has made a large gift, such as putting the house in the children’s names, and then applies for Medicaid benefits prior to the expiration of five years.  In that case, the ineligibility for Medicaid benefits can extend well beyond five years from the gift.

The financial eligibility rules for long-term Medicaid benefits are complex and everyone’s situation is unique.  The elder law and medicaid planning attorneys at Samuel, Sayward & Baler LLC can assist you with planning in advance to preserve your assets for your family in the event you require Medicaid long-term nursing home care benefits and can help you prepare to navigate the Medicaid application process.

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 such as long-term care planning. She is an active member 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.

December, 2019

© 2019 Samuel, Sayward & Baler LLC

Planning Now For Long-Term Care After Incapacity

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A big concern of many of my estate planning clients is what happens if they need long-term health care in a nursing home but they cannot make important financial and health care decisions on their own anymore due to dementia, serious injury or prolonged illness. This is especially relevant if Medicaid (MassHealth), the federal/state program that provides benefits to pay for long-term nursing home care expenses, will be necessary. There are two essential estate planning documents that you can complete now to alleviate these concerns: a Power of Attorney and a Health Care Proxy.

A Power of Attorney appoints a person called an attorney-in-fact to make financial decisions on your behalf when you cannot do so yourself.  A Health Care Proxy appoints a person called a health care agent to make health care decisions for you if you are unable to do so yourself. Both documents should include specific language to give your appointed agent the authority to manage your long-term care in a nursing home.  Below are a few of the provisions that should be included in these documents.

Power of Attorney

Your Power of Attorney should be comprehensive in order to address anticipated and unanticipated long-term care circumstances.  For example, the Power of Attorney should include language that permits your attorney-in-fact to complete an application for Medicaid benefits on your behalf and appeal any denial of benefits for you.  Your attorney-in-fact should also have authority to sign nursing home agreements on your behalf. However, it is important your attorney-in-fact’s authority is limited so that he or she cannot sign an agreement that restricts your rights (or the rights of your estate) to pursue litigation in the event you suffer harm; many of these agreements mandate arbitration and/or mediation in the event of the nursing home’s illegal or harmful actions toward you. A new federal rule attempts to curtail mandated arbitration in agreements but does not ban it outright. Additionally, it may be appropriate for your Power of Attorney to give your attorney-in-fact the authority to make gifts of your assets, and designate beneficiaries of bank accounts, retirement accounts, annuities and life insurance policies. The Power of Attorney may also include provisions that allow your attorney-in-fact to change your estate plan. The purpose of these provisions is to permit your attorney-in-fact the flexibility to appropriately manage, transfer, or spend down your assets to qualify you for Medicaid benefits, if necessary.  Your Power of Attorney can be drafted so that only certain attorneys-in-fact have the authority to take specific actions, and only certain family members can receive gifts of your assets.  Although these powers may not be appropriate in every case, if you anticipate that you may wish to apply for Medicaid benefits in the future, your Power of Attorney should contemplate that these types of actions may be necessary.

Health Care Proxy

Your Health Care Proxy should include the standard powers given to your health care agent under Massachusetts law.  The Proxy should also contain expanded powers to permit your health care agent to assist with long-term care matters, with the goal of eliminating the need to petition the court to appoint a guardian to make health care decisions on your behalf in certain situations.  For example, your Proxy should give your health care agent the ability to authorize the administration of medication, employ and terminate the employment of doctors and other medical providers, admit and discharge you from a medical facility, and sign a MOLST (Medical Order for Life-Sustaining Treatment) on your behalf.  In the event it is necessary to go to court, the Proxy’s expanded powers clearly express your wish to give your agent the authority to take certain actions and may simplify the appointment process.

If you already have these documents, I recommend that you contact an attorney experienced in elder law and estate planning to review them to ensure that the necessary long-term care planning provisions are included.  If you do not have a Power of Attorney or Health Care Proxy and wish to learn more about them from an estate planning attorney in a one-on-one meeting, an attorney at Samuel, Sayward & Baler LLC can meet and discuss these documents with you. Alternatively, you may join Attorneys Suzanne R. Sayward and Abigail V. Poole on Thursday, October 17th at 1:00 p.m. for a presentation on this topic at the Dedham Senior Center located at 735 Washington Street, Dedham, Massachusetts.  Please RSVP to Courtney Daly at (781)326-1650.

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 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.

October, 2019

© 2019 Samuel, Sayward & Baler LLC

Five Basic Facts About Revocable Trusts

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A client recently asked me, “What is the difference between a revocable trust and a living trust?”  The short answer is there is none; revocable trusts and living trusts, sometimes also called revocable living trusts, are all different names that describe the same thing.  You might ask your attorney, “What is a revocable trust?” A revocable trust is an entity that may be created as part of an estate plan to own certain assets during a person’s lifetime (and after the person’s death) and direct the distribution of those assets at death.  Here are five basic facts to know about revocable trusts if you are thinking about using them in your estate plan:

  1. Revocable Trusts Create Three Positions To Do The Job

Revocable trusts create three positions that interact with each other during the existence of the revocable trust.  The Grantor is the “creator” of the revocable trust, and is also known as the Donor or Settlor.  The Trustee is the “manager” of the revocable trust and any assets held in the revocable trust.  The assets in the revocable trust are held for the benefit of the trust Beneficiary.  One or more people can fill all three positions at one time, or separate people can fill each position, depending on the circumstances.  For example, I created a revocable trust for myself, which holds my assets that I freely use – I am the Grantor, Trustee and Beneficiary during my lifetime. If I become incapacitated, my mother will manage my revocable trust as successor Trustee instead of me, but I will remain the Beneficiary of the trust and therefore my mother as Trustee may use the trust assets only for my benefit.  At my death, the assets held in the revocable trust will be distributed by my mother as Trustee to the Beneficiaries who I have named in the trust as the recipients of those assets at my death.

  1. Revocable Trusts May Be Changed During the Grantor’s Lifetime

“Can you change a revocable trust?” The Grantor retains special powers when he or she creates the revocable trust.  As long as the Grantor is alive and competent, he or she may change the terms of the revocable trust.  If changes are made to specific portions of the revocable trust, this is done by amending the trust. If the revocable trust is changed or updated in its entirety, this is known as a restatement of the trust. The Grantor may also terminate or revoke the trust, and take the trust assets back into the Grantor’s ownership, which is why it is called a revocable trust. The Grantor’s other powers include the ability to add assets to the revocable trust and remove assets from the revocable trust as he or she sees fit at any time.

  1. Revocable Trusts Become Irrevocable At The Death of the Grantor

The Grantor’s special powers end at the Grantor’s death, and the revocable trust becomes irrevocable. This means no one may revoke or change the terms of the trust. The Trustee must manage and distribute the assets held in the trust as directed by the terms of the trust as they exist at the Grantor’s death.

  1. Revocable Trusts Are a Way to Avoid Probate

Assets that are held in a revocable trust at the Grantor’s death avoid the expensive and time-consuming court process of probate. Avoiding probate by holding an asset in trust is accomplished by titling the asset in the name of the revocable trust, or designating the revocable trust as the recipient of the asset at the death of the Grantor (i.e. by beneficiary designation). The estate planning attorney who prepares a revocable trust for you should provide you with recommendations about how your trust should be funded based on the types of assets you own and your distribution instructions.  However, in the event an unknown or unexpected asset is discovered after the Grantor’s death and must go through probate, it is wise to prepare a Will along with the revocable trust to capture that asset and direct it to “pour over” into the revocable trust for management and distribution.

  1. Control of Distribution of Assets After Death

A revocable trust allows the Grantor to control the manner and timing of distribution of the trust assets to the Beneficiaries after the Grantor’s death.  The trust distribution directions may be simple or complex depending on the Grantor’s financial situation, family relationships and wishes.  For example, if the Grantor is concerned that a Beneficiary may get divorced or has significant debt, the Grantor may direct the Trustee to retain the Beneficiary’s share in trust for the Beneficiary’s lifetime to protect the funds. Revocable trusts also may serve as an estate tax savings tool for married couples. However, revocable trusts are not useful for the purpose of long-term care planning and do not protect your assets from having to be spent down prior to eligibility for Medicaid (MassHealth) benefits.

If you are in the early stages of estate and trust planning and interested in creating a revocable living trust, work with an experienced estate planning attorney who should explain the advantages and disadvantages of a revocable trust based on your particular situation and work with you to determine if a revocable trust is appropriate to achieve your estate planning goals.

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 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. 

June, 2019

© 2019 Samuel, Sayward & Baler LLC

What Happens to Your Personal Possessions After Death?

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Think about everything you own – perhaps you have personal possessions, savings bonds, real estate, life insurance, and financial accounts such as checking and savings, investment, and retirement accounts. Your physical personal possessions, such as your vehicles, furniture, clothing, jewelry, artwork, boats, collectibles, and other items are known as your “tangible personal property”.

Some tangible personal property is financially valuable – consider the countless stories you hear of a person discovering that the painting she bought at a garage sale is worth millions.

However, often the most significant value of tangible personal property is its sentimentalmeaning to you and your family. For example, your mother’s costume jewelry which you remember seeing her wear during special occasions. If you have siblings or other family who have similar emotions and memories attached to the same item, tangible personal property can quickly become a source of serious conflict between family members after death.

To avoid conflict that will damage the relationships between your surviving family members, speak with a qualified estate planning attorney to determine how you may best direct the distribution of your tangible personal property. One option is to identify and direct what happens with a specific item in your Will (and/or Trust). For example, the Will can state that your $3,000 statue is to be sold and the sale proceeds distributed equally among your children after your death. However, you must carefully consider whether disposing of your tangible personal property in your Will makes sense. If you later decide the statue should instead be distributed to your daughter, you will need to change your Will which will involve another trip to your lawyer’s office and another fee to make that change.

The better option is often to list specific items and their recipients on a tangible personal property memorandum. Under Massachusetts law, a memorandum that is incorporated by reference in the Will is legally enforceable even though it is a separate document from your Will and one that you can change on your own at any time. For instance, if you later prefer the statue to be distributed to your son instead of your daughter, you may update the memorandum yourself without the time and expense of changing your Will.

A third option is to distribute specific items of tangible personal property to the family member you wish to receive it while you are alive. Before doing this, consider whether you will miss the item, whether other family members will dispute that gift after your death (in which case you should document the transfer in writing), and whether you will be upset should the recipient decide to sell it or give it to someone else without consulting you.

Beyond the specific items you wish to distribute to certain recipients, it is important that your Will also describe what happens to all your other tangible personal property. For example, the Will may state that your other tangible personal property is to be distributed equally among your children. If your children do not want your remaining tangible personal property, your Will may direct your Personal Representative (Executor) to sell it, donate it to charity, and/or otherwise dispose of your tangible personal property.

A little inheritance planning goes a long way, especially after you are gone. At Samuel, Sayward and Baler LLC, we recognize the importance of maintaining family relationships, and look forward to tailoring your estate plan to fit your tangible personal property distribution wishes now and for the future.

May, 2019      

© 2019 Samuel, Sayward & Baler LLC

5 Considerations If You Plan to Move to A Continuing Care Retirement Community

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You may be asking yourself “What is a Continuing Care Retirement Community?” A Continuing Care Retirement Community (CCRC) is a community that consists of graduated levels of residential and health care options to accommodate elders who are looking to downsize but remain independent and ensure that their health care needs are met as they “age in place” in a familiar setting. Generally, a couple or single person’s financial and health eligibility are rigorously reviewed by the CCRC and a signed agreement outlining the terms of residency, services, fees, transfers between types of residency units, and other matters (Agreement), along with a large Entrance Fee deposit (similar to a security deposit from renters), are required to join a CCRC. Here are five things to consider if you are contemplating moving to a CCRC.

  1. How are CCRCs Regulated?

There are currently about 30 CCRCs throughout the Commonwealth of Massachusetts. Under Massachusetts’ consumer protection law (G.L.c. 93, §76), CCRCs are required to disclose specific information regarding the terms of residency and services prior to or at the time the Agreement is signed or a deposit is paid, and to provide the same to the Executive Office of Elder Affairs (EOEA), which had made several CCRCs’  Agreements and other information available here. If a CCRC knowingly and willfully fails to disclose this information, the resident may recover damages, costs and attorneys’ fees, and in certain cases, a refund of the Entrance Fee, sometimes less certain costs outlined in the Agreement. However, in Massachusetts there is no state agency that has authority to oversee and enforce the CCRCs’ adherence to the statute.

  1. I Meet the CCRC’s Financial Requirements – Does It Meet Mine?

Typically, a large Entrance Fee deposit is required to buy in to a CCRC, and each CCRC treats the manner by which the Entrance Fee may be utilized during your lifetime and the process by which it is refunded differently.  For instance, some Agreements state that the Entrance Fee may be used by the CCRC to pay your monthly expenses if your other methods of payment have been exhausted. Other Agreements state that you, or your family if you are deceased, will not receive a refund until a new resident buys in to the CCRC, unless you are willing to receive a greatly reduced refund. Yet other Agreements may link the Entrance Fee refund to your period of residency, which means the refund may be significantly less than the deposit you paid if you reside there for several years. Carefully consider the Entrance Fee refund provisions and decide if they are acceptable to you and your family when reviewing an Agreement.

Also pay attention to the financial strength of the company that supports the CCRC, especially if the Agreement makes it clear that your receipt of a refund is dependent upon the buy in of a future resident.  If the company declares bankruptcy, you may lose your entire refund.   The Commission on Accreditation of Rehabilitation Facilities (CARF) is a nonprofit accreditor of health and human services providers and provides a Guide to Understanding Financial Performance and Reporting in CCRCs on its website.

Another matter to consider is what happens if you no longer have adequate funds to pay your monthly expenses, especially if you are in the skilled nursing facility section of the CCRC. Carefully review the Agreement to determine if there are terms that explain the procedure by the CCRC to collaborate with you to pay your expenses, including applying for Medicaid benefits.  Most CCRCs do not accept Medicaid.

  1. What Are the Monthly (and Other) Fees I Will Pay?

The CCRC should provide you with a detailed written description of the services included with the monthly fee you will be paying them as well as a list of fees for additional services.  For example, is transportation to local grocery stores, laundry services or light cleaning of your unit included in the monthly fee or are these additional fees? It’s a good idea to calculate the fees for the additional services you anticipate utilizing along with the monthly fees you will be paying.  Be aware that these fees generally increase annually.

  1. What Happens If My Health Declines?

The major appeal of CCRCs is that you can remain within a familiar community that provides more residential and health care support if and when your health declines. Many Agreements include provisions that broadly describe the process, factors and decision-makers that influence when you may be temporarily or permanently transferred from an independent living unit to an assisted living unit or a skilled nursing facility unit or to another facility outside of the community if warranted. Some Agreements permit residents or their legal representatives to weigh in and appeal the decision to permanently transfer the resident to another unit while others do not. A move to assisted living or skilled nursing can significantly increase your monthly expenses.  Additionally, the decision to permanently move you to a potentially more expensive unit may be out of your hands.  Carefully consider the factors and individuals involved in deciding if you require transfer to another unit, and note whether the Agreement clearly explains the fees if your healthy spouse remains in your independent living unit.

  1. What Else Is Important to Me?

Arbitration: Another part of a CCRC Agreement to consider is the arbitration/dispute resolution provision. Some Agreements state that any disagreement you have with the CCRC may only be resolved with arbitration and/or dispute resolution and not via the court.  This will limit your ability to pursue an outcome that may be more beneficial to you. Consider carefully if it is important to you to have all legal options available to you in the event the CCRC violates its Agreement with you.

Resident Rights: Beyond any rights described in the Agreement, residents may establish a residents’ association, submit comments to the CCRC regarding resident health and welfare, and request information about construction and the financial reserves of the CCRC under Massachusetts law. Think carefully about whether you will be comfortable with a limited ability to effect change within your community as a resident. Also keep in mind that you will be sharing common space with people that have different lifestyles from you; for instance, would you be bothered if your neighbor smokes cigarettes or has a noisy pet?

Activities: Review the activities, events and meal schedules of the CCRC and consider whether they appeal to you and fit your lifestyle.

For more information, an extensive consumer guide to questions and other topics for consideration regarding Massachusetts CCRCs can be found at the EOEA’s website.

If you are considering making a Massachusetts CCRC your future home and wish to better understand the terms and legal ramifications of the Agreement for you and your loved ones, contact an experienced elder law attorney to thoroughly review and discuss the Agreement with you.

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 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. 

February, 2019

© 2019 Samuel, Sayward & Baler LLC

Benefitting Charities Under Your Will – When is it Better to Give?

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I recently read an article about a man in Washington who donated more than $11 million to several charities after his death via his Will.  It got me thinking about charitable giving and legacy planning, and when it’s a good idea to consider naming one or more charities as the recipients (beneficiaries) of your estate assets.

  • When Charitable Donations Are Important to You.

If you regularly make gifts to one or more charities now, you may wish to consider donating to the same organizations after your death.  This can be achieved through setting up a Will or a Trust where you name the charities, the portion of your estate or the amount to be gifted, and specify the purpose for which you wish the gift to be used by the charity.

  • When You Want to Reduce Taxes.

Most people know that if you donate money or assets to a qualified charity you are entitled to a deduction on your income tax return.  Similarly, if you leave money to charitable organizations at your death, your estate is entitled to a deduction equal to the value of the gifted assets.  For Massachusetts residents who have an estate in excess of $1 million, leaving money to a charity will reduce the estate tax that would otherwise be due.  Naming a charity as the beneficiary of an IRA or 401K plan doubles the tax savings since not only is there an estate tax deduction but no income tax will be owed by the charitable recipient when funds are withdrawn from the retirement account.

  • When You Want to Leave a Legacy.

If you are able to make a significant gift to a charitable organization or you have the funds to establish your own foundation, then you can leave an estate planning legacy behind that will continue well beyond your lifetime.  A foundation is also an excellent way to involve family members in your pet charitable cause and to foster charitable giving values.

  • When You Want to Control the Distribution of Your Estate.

In Massachusetts you are considered to have died “intestate” if you do not have a valid Will at the time of your death or if all of the beneficiaries named in your Will have predeceased you.  Massachusetts law will govern to whom your estate will be distributed if you die intestate. Under Massachusetts law, the beneficiaries of an intestate estate are determined by several factors, such as your marriage status and your surviving family members at the time of your death. For example, if you are a single woman with no children, your estate will be distributed to your surviving parents if you do not have a Will. If your parents predecease you, then it will be distributed to your surviving siblings, if any, and if none, your estate will be distributed to continually more remote family members. This may mean that a family member with whom you have a poor relationship or no relationship may inherit your estate.

If you have absolutely no surviving family members, under Massachusetts law your estate assets will be distributed to the Commonwealth of Massachusetts.  Designating a charity as the beneficiary of your estate in the event all of your beneficiaries have predeceased you will permit you to control that final distribution and prevent the Commonwealth from receiving your estate assets as a last resort.

At Samuel, Sayward & Baler LLC, we carefully consider your wishes, including your charitable intentions and your estate planning goals, and then develop a plan with you to ensure that your estate plan represents your wishes. Call us at 781 461-1020 to schedule an appointment to meet with one of our estate planning attorneys to talk about achieving your goals.

January, 2019

© 2019 Samuel, Sayward & Baler LLC

Probate Administration: It’s a Marathon, Not a Sprint

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“We will be done with all of this soon, right?” That’s the question I often hear when working with a client who has been appointed as the Personal Representative (PR) of the estate of a loved one who has recently passed away. My answer is to view the administration of an estate as a marathon, not as a sprint. You will reach the finish line so long as you put one foot in front of the other, but it may take some time and there will be periods when more of your energy is required depending on the obstacles in front of you during the probate process.

The administration of an estate in Massachusetts typically takes a year or more.  One reason is that under Massachusetts law, creditors have one year from the deceased’s date of death to file a claim against the deceased’s estate for the payment of a debt owed to the creditor, such as an outstanding balance on a credit card. This often means that as PR you will need to carefully manage and hold the majority of the estate assets for at least a year before final distributions can be made to the estate beneficiaries (those inheriting money from the estate).

It will feel like much of your energy will be expended during the first few months of the estate administration when you are marshalling the assets of the deceased. While it may seem tedious and difficult to methodically discover, document, consolidate, and manage the assets of the estate,  you will be fulfilling your fiduciary obligations, and avoid liability to the beneficiaries and creditors of the estate for mismanagement. Your careful approach will benefit you later on when you easily handle other PR responsibilities, such as filing final personal income tax returns, estate tax returns, and fiduciary income tax returns.

All your hard work will pay off at the end of the estate administration process when you account to the beneficiaries by documenting the amounts received by the estate and the expenditures of the estate under your management, and the beneficiaries happily receive distribution of their inheritances from the estate.

Everyone tackles marathons differently, however, in all cases it is beneficial to have support and guidance; training is essential, too. At Samuel, Sayward & Baler LLC we are happy to run the marathon with you, providing support and guidance every step of the way through the probate process. Read more of our articles, attend our seminars, and do not hesitate to contact us when it is necessary for you to embark on the probate administration journey – it will seem like you are crossing the finish line in no time at all.

November, 2018

© 2018 Samuel, Sayward & Baler LLC

Congratulations to Your High School Graduate!

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Summer is now in full swing after the end-of-the-school-year excitement and celebrations for recent high school grads!  Many parents will soon begin the process of preparing their young adult for college, including spending lots of time (and money!) at Bed, Bath & Beyond purchasing items for the dorm room, classes, and extracurricular activities.   In the frenzy of preparations don’t overlook the three legal documents that are vital estate planning for these young adults.  The basic estate plan for young adults should include a Durable Power of Attorney, a Health Care Proxy and a HIPAA Authorization.  These will ensure that parents have the legal authority to make financial and health care decisions for a child who is ill, injured, traveling, or residing outside of the country.

At Samuel, Sayward & Baler LLC we want to make it easy for our clients and their families to put these estate planning documents in place. After discussing this with your child, please contact Jennifer Poles at 781-461-1020 or poles@ssbllc.com to schedule a telephone call between your young adult and me. During the call, I will collect information, describe the documents, and guide your child through the necessary decisions. I will meet with your young adult to review and sign the documents. Mention that you read this article when you contact Jennifer and you will be entered into a raffle for a $100.00 gift card to help with some of those pre-college purchases.

Completing an estate plan before going to college is a tradition in my family – my grandfather had my mother complete an estate plan and my mother had me do the same when I was 18 years old.  I would be happy to assist you and your young adult with starting (or continuing) that tradition!

July, 2018

© 2018 Samuel, Sayward & Baler LLC

A Panoramic Primer on Probate: Part Two –  Marshalling Assets

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Upon receipt from the Court of the Letters of Authority appointing a person as Personal Representative (PR) of the decedent’s estate in an informal or formal probate, the PR has the authority to begin taking action with regard to the assets of the estate. These “probate assets” (owned in the decedent’s individual name which do not designate a beneficiary or co-owner) may consist of bank accounts, investment accounts, stock, savings bonds, tangible personal property (furniture, jewelry or a vehicle), and real estate. This article explores the initial steps to be taken by the PR to administer typical probate assets. The process of collecting the probate assets is known as “marshalling the assets.”

Investigate Financial Accounts and Other Assets

A PR’s first step is to investigate and determine the assets of the estate by reviewing the deceased’s files, mail and tax returns, and contacting an estate planning attorney with whom the decedent may have worked. The PR should contact the estate attorney who will guide the PR through the steps necessary to access each asset.

The PR should take steps to identify and safeguard the tangible personal property of the decedent. Some items require special treatment due to their nature. For example, firearms must be handled according to Massachusetts laws.  If the decedent owned a vehicle, the PR should maintain appropriate insurance on the vehicle prior to the distribution, transfer, or sale of the vehicle according to the wishes of the decedent.

Consolidate and Manage Financial Accounts and Other Assets

Once the PR has identified the financial assets, the PR often will consolidate cash assets into one estate account from which the expenses of the estate can be paid.

It is crucial that the PR keep detailed records. The records should include the assets in existence when the decedent died (and those that the PR learns no longer exist), their values, and the actions the PR takes with respect to each asset. Funds deposited in the estate account should be recorded along with estate expenditures such as bank account fees, legal expenses, real estate maintenance or cleaning fees, etc. Keeping detailed records from the beginning of the estate settlement process will assist the PR with the subsequent steps to complete settlement of the estate.

Each estate probate is unique. The assets differ, the family dynamics vary, and the wishes of the decedent must be followed. An experienced estate attorney will provide guidance that best suits the PR’s needs and the estate in question.

The next article will address the distribution of real estate through probate.

April, 2018

© 2018 Samuel, Sayward & Baler LLC

Wills • Trusts • Elder Law • Long-Term Care Planning • Estates

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