Attorney Abigail V. Poole

Five Things To Do Soon After A Loved One Passes Away

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Thankfully here in Massachusetts we continue to see a decline in COVID-19 cases.  Hopefully, this trend will continue. Nevertheless, there are sadly still individuals who are becoming infected with COVID-19 and dying from complications due to the virus, reluctance to seek treatment for other health issues, or for a myriad of other reasons.  What should I do when a loved one passes away may be a question that you unfortunately have to ask yourself. Whether a loved one’s passing is expected or unexpected, managing his or her affairs can be difficult to think about while dealing with the grief and loss of a loved one. Here are five steps to provide some guidance on what to do soon after a loved one’s death, in no particular order:

  • Arrange Burial and Memorial Services According to the Loved One’s Wishes

If the deceased was forward-thinking enough to pre-arrange and/or pre-pay his or her funeral when also preparing his or her estate plan, then contact the funeral home with which these arrangements were made.  If no plan was put in place before death, contact a reputable funeral home to guide you through the burial and memorial service process.

As part of an estate plan, the deceased may have prepared a Directive as to Remains.  A Directive as to Remains is a document that instructs the deceased’s Personal Representative (Executor) to arrange the deceased’s burial or cremation and funeral/memorial services as directed in that document. Your loved one alternatively may have written down similar wishes in a letter of instruction. Carefully review your loved one’s estate planning documents to learn if the deceased left such instructions so that his or her wishes are carried out.

  • Find and Organize Important Documents

Hopefully your loved one showed you where he or she keeps important documents like his or her Will, income tax returns, financial account statements and bills that are regularly paid. This information will be necessary for the proper services and administration of the deceased’s estate.  Locate a safe but easily accessible place where you can store this information as you will refer to and use it often.  Do not throw away any financial records or legal documents until you know you will not need them for tax filings, asset valuation, or other purposes.

  • Secure Property of the Estate

Your loved one may have several different types of assets in his or her estate at death. In every case, the Personal Representative (or Trustee if there is a Trust) is responsible for ensuring the deceased’s property is secure and protected for the beneficiaries of the estate.  For example, it is important to safely store valuable jewelry and artwork.  Similarly, any real estate should be securely locked (perhaps even change the locks) and regularly visited. In fact, it is an obligation of the Personal Representative to do so, and he or she may be liable if such measures are not taken and damage occurs to the property. The Personal Representative should also maintain or obtain insurance in connection with the deceased’s assets, as necessary, and may need to have some or all of them appraised for estate administration and/or estate tax purposes.

  • Contact an Estate Planning and Administration Attorney

The settlement of an estate can be incredibly complex depending on the assets and beneficiaries involved, and the provisions of the deceased’s estate plan. The Personal Representative should contact an attorney to guide and assist him or her through the process of completing and filing the required documents to be appointed as Personal Representative by the probate court, gathering assets, paying appropriate expenses, and making distributions, to avoid failing to fulfill his or her obligations. This is especially important if the estate assets are valued at over $1 million and a Massachusetts estate tax will be payable, or if it is anticipated that MassHealth (Medicaid) may file a claim against the estate to be reimbursed for any MassHealth benefits (for home care or nursing home care) received by the deceased during his or her lifetime.

Keep in mind that the administration of an estate typically takes at least one year so you may want to take the tortoise’s point of view – slow and steady wins the race.

  • Communicate and Work Together

On top of the issues mentioned above, estate administration can be made more difficult if there are strained relationships between the beneficiaries, which often also includes the person who is serving as Personal Representative. Perhaps there is a history of family disharmony. Perhaps multiple beneficiaries are sentimentally attached to mom’s diamond engagement ring and they must decide who gets to keep it.  The only person who wins when there are disagreements between beneficiaries that cannot be resolved is the attorney who gets paid to resolve them via negotiation or court action.  Instead, consider embracing the three C’s as much as possible when working with each other: Communication, Cooperation and Compromise. 

Estate administration can be a juggling act where the Personal Representative is managing several different responsibilities all at once, including fulfilling the wishes of the deceased and the Personal Representative’s obligations to the beneficiaries. An estate planning attorney knowledgeable in the process of estate administration can guide you through that process in a correct and efficient manner, so that you have peace of mind when all is complete, hopefully with family relationships intact, which is most likely what your loved one would have wanted when setting up his or her estate plan.

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. 

© 2021 Samuel, Sayward & Baler LLC

 

 

 

5 Ways to Avoid Probate Court

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A goal of many clients is to get their estate plan in order because they had to go through the time-consuming and expensive process of probate to deal with their deceased parent’s estate and they don’t want that burden to fall on their families.  Probate is the process by which a Personal Representative (also known as Executor) is appointed by the Court to access, manage and distribute the deceased’s estate assets. The court that oversees probates is the Probate and Family Court in Massachusetts. There is a separate Probate Court for each county in Massachusetts.  A large volume of probate matters are filed each year in Massachusetts.  In addition to estate settlement matters, the Probate Courts also have jurisdiction over divorce, child custody, adoption, and guardianship and conservatorship cases.  Most people would prefer to avoid the need for probate to make it easier on their family in the event of their incapacity or death. Here are five ways through careful estate planning that you can take action now to avoid the Probate and Family Court system (for which your family will be very grateful).

1. Avoid Guardianship by Completing a Health Care Proxy

A Guardian is a person appointed by the probate court to make decisions for someone who has been deemed incapacitated (a ‘protected person’).  A Guardian is responsible for the well-being of the protected person and is authorized to take comprehensive or specific actions on behalf of the protected person depending on the situation. For example, a Guardian may consent to typical medical care and treatment but needs specific authority from the Court for other types of treatments, such as the administration of anti-psychotic medications.  The Guardian must regularly update and report to the Court regarding the care of the protected person.  Often it is a family member of the incapacitated person who must petition the Probate and Family Court to be appointed as Guardian. 

Guardianships requiring Court supervision can usually be avoided by completing a Health Care Proxy. A Health Care Proxy is a document that appoints a health care agent to make health care decisions on your behalf if you are incapacitated and is a very important part of an Estate Plan.

2. Avoid Conservatorship by Completing a Power of Attorney

A Conservator is appointed by the probate court to manage the financial affairs of an individual who is adjudicated by the court to be unable to do so.  The Conservator takes over the bank and other financial accounts of the incapacitated person, pays bills, makes decisions about how funds will be spent, which financial advisor to work with and how to invest your assets, for example.  Similar to a Guardian, the Conservator must regularly update and report to the Court about the management of the incapacitated person’s finances, income and expenses. As with a guardianship, a family member is often the one to petition the Court to be appointed as Conservator.

The time and expense of a Conservatorship may almost always be avoided by completing a Power of Attorney.  A Power of Attorney is another important Estate Planning document that appoints an attorney-in-fact to make financial decisions on your behalf.  Some Powers of Attorney only “spring-to-life” when activated by confirmation of incapacity by a physician.  Other Powers are effective immediately upon signing, which can be convenient in the event you need or want the attorney-in-fact to take care of your finances even though you are competent.

3. Sign a Parental Appointment of Temporary Agent (PATA)

Guardianships and Conservatorships also come into play if someone passes away leaving minor children. A Last Will and Testament is the document used to name someone to serve as the Guardian and Conservator of minor children.  When someone passes away, it may take a while for the Probate court to appoint a Guardian and Conservator for the minor children.  In the meantime, those minor children still need care. To bridge this gap, parents may appoint a temporary agent to care for minor children for a period of 60 days. The Parental Appointment of Temporary Agent (PATA) form designates a person who may make medical, residential and educational decisions for minor children prior to the official appointment of a guardian and conservator by the court. While completing this form does not avoid a visit to the Court, it reduces the apprehension of who will look after your children while legal custody is determined.

4. Create a Trust

Keep in mind that probate is necessary after death for assets that are individually owned and for which there is no named beneficiary.  One way to change the ownership but retain full access, use and control of an asset is by having an attorney for trusts create a Revocable Living Trust for you and fund it during your lifetime. If you are the owner of your savings account as “Jane Doe, Trustee of the Jane Doe Revocable Living Trust,” your account is no longer in your individual name and thereby avoids probate.  Some, but not all, other types of trusts also avoid probate.

5. Designate Beneficiaries of Certain Assets

Another way to avoid probate is to designate one or more beneficiaries of certain assets.  Assets that have designated beneficiaries pass outside of probate.  You may be familiar with designating your spouse as the primary beneficiary on your IRAs, 401(k)s and life insurance policies. After you pass away, your spouse will complete a form provided by the financial institution to receive the asset.  However, designating beneficiaries can be a trap for the unwary.  If the designated beneficiary is also deceased and there is no contingent (back-up) beneficiary designated, the asset must be probated. For this reason, it is important to periodically review your designated beneficiaries with your legacy planning and estate planning attorney and confirm them with the financial institution.

At Samuel, Sayward and Baler LLC, we will advise you about the best estate plan to avoid a trip to the Probate and Family Court and which is tailored to your needs and goals. Once your estate plan is in place, you may rest easy knowing that you have made it simpler and faster for your family to manage your estate if you become incapacitated or pass away.

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. 

March, 2021

© 2021 Samuel, Sayward & Baler LLC

Recording of Smart Counsel Series Webinar on College Planning for Young Adults

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This week’s video on Smart Counsel for Lunch is a recording of last week’s Smart Counsel Series Webinar on College Planning for Young Adults. Don’t miss this webinar if you have children that are planning to go to college in the next year or two. Learn how to have everything in place for them when they leave home for the first time. Please watch and if you have any questions or want to learn more please call us at 781 461-1020.

What Happens After the Death of a Person Who Received Medicaid Benefits?

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Medicaid, also known as MassHealth, is the joint federal and state program that provides public benefits to pay for the care of individuals who are medically and financially eligible because they do not have sufficient assets to cover the costs themselves.  If the individual was age 55 years or older and received MassHealth benefits during his or her lifetime, the MassHealth Estate Recovery Unit (“ERU”) is responsible for collecting reimbursement for the costs paid by the Commonwealth.  Reimbursement comes from the deceased person’s probate estate. Under Massachusetts law, the ERU must be notified when probate pleadings are filed with the probate court. Thereafter, the ERU files a claim against the probate estate to reserve the right to be paid from the estate. As the recipient’s house is typically the largest asset remaining to be probated, the ERU is often reimbursed from its sale proceeds.

A recent decision by the Supreme Judicial Court of the Commonwealth of Massachusetts highlights the importance of understanding what happens when a person who has received Medicaid benefits during his or her lifetime passes away.  In the Estate of Jaqueline Ann Kendall (SJC-12881, December 28, 2020), the Supreme Judicial Court held that the Commonwealth was not entitled to reimbursement from Ms. Kendall’s probate estate (consisting of 50% ownership of a house) because the ERU waited too long to file its claim.  While it may seem that the decision favors procrastination for families whose loved ones were MassHealth recipients, this is not necessarily the case. The ERU is permitted under the law to file probate pleadings if no one else steps forward, and may become more aggressive in doing so following the Kendall case.  

A better strategy for protecting your assets from nursing home costs is to be proactive and undertake long-term care planning.  This may mean conveying property subject to a retained life estate, or crafting a so-called “Medicaid Trust” or “Irrevocable Income Only Trust”, or other options that best fit your needs and goals.   

At Samuel, Sayward & Baler LLC, an elder care attorney knowledgeable in long-term care planning will guide you through the advantages and disadvantages of your long-term care planning options. Our estate planning attorneys can help you to avoid probating your house and the subsequent MassHealth claim, and preserve its value for the benefit of your children, in the event you require MassHealth benefits during your lifetime.

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 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. 

January, 2021

© 2021 Samuel, Sayward & Baler LLC

 

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

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