Attorney Brittany Hinojosa Citron Discusses The Cost of Long Term Care for our Smart Counsel for Lunch Series. Please watch and if you have any questions or want to learn more please call us at 781-461-1020.
Who are My Heirs?: Understanding How Your Relatives are Treated Under the Law
Blended families bring together unique dynamics and diverse relationships. As wonderful as these unions can be, they introduce complexities when it comes to estate planning and inheritances. Blended families often consist of spouses with children from previous marriages or relationships.
We often get questions about whether certain relatives can inherit from an estate, such as a stepchild, a son-in-law, or a child who is a part of the family but isn’t legally adopted. How are these relatives treated under Massachusetts law and what should you consider when you are doing your estate planning?
Massachusetts, like many states, has laws governing intestate succession that determine how your estate is distributed when there is no valid Will. Heirs at law are those individuals who are entitled by law to receive your property after your death if you do not have a Will. The order of inheritance prioritizes the surviving spouse, children, parents, and other close relatives.
- Surviving Spouse: If a married person dies intestate and with children, and all of the children are children of the marriage, then the married person’s entire estate will pass to the spouse. However, if either spouse has a child from a prior marriage or relationship, then the amount passing to the surviving spouse is the first $100,000 plus 50% of the remaining probate estate. If a married person dies intestate and does not have children, but has at least one surviving parent, then the estate is divided between the surviving spouse and parent(s).
- Unmarried Partner: An unmarried partner, regardless of the length of the relationship, does not have automatic inheritance rights if there is no Will that provides for the partner.
- Biological and Adopted Children: If an unmarried person dies intestate and has children, then the entire estate will pass to the surviving children. An individual is the child of his/her natural parents regardless of their marital status. A legally adopted individual is the child of his or her adopting parents and will inherit the same as if they were a biological child.
- Stepchildren: A stepchild is not considered an heir at law unless the child was legally adopted by the stepparent. Keep in mind that even though the child was adopted by the stepparent, the child can still inherit from or through his or her natural parent.
- Grandchildren: A grandchild will only inherit if your child (the grandchild’s parent) dies before you. If your grandchild is not your child’s natural or legally adopted child, then the grandchild will not be considered an heir at law.
- Parents and Siblings: If an unmarried person dies intestate and does not have children, then the estate will pass to the surviving parent(s). If the person does not have surviving parents, then the estate will pass to surviving siblings and surviving descendants of any predeceased sibling.
- Distant Relatives: If an unmarried person dies intestate and does not have children, surviving parents, surviving siblings, or surviving nieces/nephews, then the estate will be distributed to the closest living relative, such as a grandparent, aunt or uncle, or cousin.
Life events such as marriages, divorces, births, and deaths can significantly impact your estate plan. If you have a blended family or want to provide for a grandchild or other relative within a blended family, it is important to clearly articulate your intentions and be specific in your estate plan about who receives certain assets. You should not assume that these relatives will automatically inherit from your estate.
Estate planning for blended families requires careful consideration, open communication, proactive planning, and consulting with an experienced estate planning attorney. If you need to create an estate plan for your blended family or if you would like more information on other estate planning matters, please contact our office to schedule an appointment to meet with one of our attorneys.
Attorney Brittany Hinojosa Citron is an associate attorney with Samuel, Sayward & Baler LLC, which focuses on advising its clients in the areas of trust and estate planning, estate settlement, and elder law matters. 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.
December, 2023
© 2023 Samuel, Sayward & Baler LLC
Unwrapping the Gift Tax for this Holiday Season
Attorney Brittany Hinojosa Citron Discusses The Gift Tax for our Smart Counsel for Lunch Series. Please watch and if you have any questions or want to learn more please call us at 781 461-1020.
Planning for a Special Needs Relative: Honoring Special Needs Law Month
It’s fall again and October is the time of year when the Massachusetts Chapter of the National Academy of Elder Law Attorneys (“MassNAELA”) celebrates Special Needs Law Month by hosting valuable legal education programs for attorneys regarding new developments in special needs law. MassNAELA also distributes copies of its Special Needs Advocacy Toolkit, which is accessible to the public and provides tools to help people advocate for the rights and well-being of individuals with special needs. The Toolkit provides important information on financial management, as well as an understanding of Medicare and Medicaid, a student’s right to an independent educational plan, housing options, and other issues. You can find the Second Edition of the Toolkit here: https://massnaela.com/wp-content/uploads/2021/10/MassNAELA-Special-Needs-Toolkit-Second-Edition.pdf
Not only are many of our attorneys here at Samuel, Sayward & Baler active in MassNAELA, our senior associate attorney, Abigail Poole, is the current President! We are proud to be part of an organization of attorneys who are experienced and trained in working with the legal problems of individuals of all ages with disabilities. We would like to honor Special Needs Law Month by providing you with basic information on estate planning for a special needs child, grandchild, or other relative.
Financial and Healthcare Documents for an Individual with Special Needs
1. Durable Power of Attorney
A Durable Power of Attorney is a legal document in which the principal (the person creating the document) designates someone to make legal and financial decisions in the event of incapacity. This document is especially important for a special needs individual because it ensures that the individual’s financial affairs are properly managed in the event of incapacity. However, if the special needs individual is already incapacitated or is unable to understand the legal implications of the Power of Attorney, then another alternative will need to be explored, such as conservatorship.
The person designated in the Power of Attorney is called an attorney-in-fact. The attorney-in-fact should not only be trustworthy and capable of making decisions in the best interest of the principal but should understand the implications of their decisions on the individual’s eligibility for needs-based government benefits. The attorney-in-fact should be informed about the rules and regulations governing such benefits to prevent any action that could jeopardize the individual’s eligibility. The Power of Attorney can be drafted to include specific instructions and guidelines for the attorney-in-fact in accordance with the individual’s circumstances.
2. Health Care Proxy and HIPAA Authorization
A Health Care Proxy is a legal document used to designate a Health Care Agent to make medical decisions on behalf of the principal (person creating the Proxy) if the principal is deemed by his or her medical provider to be unable to meaningfully participate in decision making. As with the Durable Power of Attorney, the special needs individual must have capacity and an understanding of the document in order to execute it.
The Health Care Agent should be someone who the individual can discuss his or her healthcare wishes with and who will follow those wishes. The Health Care Agent’s role is to speak with the individual’s doctors and make healthcare decisions based on the individual’s wishes, including direction regarding life-sustaining procedures.
The HIPAA Authorization allows the persons listed in the document to obtain personal medical information and speak with medical providers. The HIPAA Authorization and the Health Care Proxy are extremely important for special needs individuals over the age of 18. That is because once a person is age 18, they are deemed legally competent to make decisions for themselves. At that point, parents or other caregivers no longer have the right to make healthcare decisions on the individual’s behalf or even to speak with physicians or other medical providers. without written consent.
Guardianship and Conservatorship
If an individual doesn’t have capacity or doesn’t understand the Power of Attorney or Health Care Proxy they are signing, then guardianship and/or conservatorship may be necessary. A guardian is someone who has legal responsibility for an individual’s physical well-being and the authority to make all decisions regarding his or her care, including healthcare decisions, residence, and education. This legal responsibility is created by the Probate and Family Court upon the court’s appointment of the guardian.
Similarly, a conservator is someone appointed by the court to manage the financial assets of a special needs individual if the individual is unable to manage the assets themselves. A conservator may also apply for and manage government benefits on behalf of the individual.
Any person serving as a guardian or conservator should name successor guardians and conservators in their Will. A court will need to appoint the guardian/conservator named in a Will to make decisions for the special needs individual.
Supplemental Needs Trusts
Parents and grandparents can create trusts for their special needs children or grandchildren with the assistance of an estate planning attorney with expertise and experience in planning for beneficiaries with special needs. This is preferable to leaving money directly to the beneficiary because Supplemental Needs Trusts (“SNT”) provide long-term management of the inheritance you leave to disabled beneficiaries while allowing them to qualify for needs-based government benefits. Special needs trusts can pay for and supplement medical and travel expenses, entertainment, pet care, and other expenses that can enhance a beneficiary’s quality of life especially when parents or grandparents are no longer around. The Trust creator names a Trustee to manage funds in the Trust who could be a professional or a trusted family member.
It is important to us at Samuel, Sayward & Baler to develop a plan that ensures that your family member with special needs is cared and provided for in the event you are unable to. It is also important to know about these basic legal tools so that you can be an effective advocate for the special needs child or relative in your life. Keep these things in mind when thinking about your family member with special needs and consult with an estate planning attorney with expertise in special needs planning to advise you about these important matters.
Attorney Brittany Hinojosa Citron is an associate attorney with Samuel, Sayward & Baler LLC in Dedham, Massachusetts, which assists and advises clients who have family members with special needs and focuses on trust and estate planning and elder law matters. 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.
October, 2023
© 2023 Samuel, Sayward & Baler LLC
Growing Together, Providing Forever: 5 Things Young Families Should Know About Estate Planning
Starting a new school year comes with a seemingly endless “to-do” list: buy school supplies, meet the teachers, make the school lunches, create a schedule for extracurricular activities, get to those nonstop piles of laundry.
One thing that is always on your mind that may not be written on a list is “planning for the future well-being of your child.” Although a young parent’s “to-do” list may seem daunting, it’s crucial to include estate planning on that list. Estate planning plays a pivotal role in ensuring that your children are provided for in the event of unexpected circumstances.
In Massachusetts, there are specific considerations young parents and families should keep in mind when creating their estate plans. Here are 5 essential things you should know as a young parent (or even as a young grandparent) about estate planning.
1. What is a Guardian?
A guardian is someone who will take legal responsibility for your child’s physical well-being and care in the event that you and the other parent pass away or become unable to care for your child. Your guardian has the authority to make all decisions regarding the care of your minor or incapacitated children, including healthcare decisions, residence, education, and religious upbringing.
You typically name a guardian in your Last Will and Testament to have custody of your minor or incapacitated children. Upon your death and the death of the other parent, the guardian you named will need to go through the court process to confirm their guardianship. The court will evaluate whether the proposed guardian is suitable and whether it is in the child’s best interest to be in the guardian’s care.
2. What is a Conservator?
A conservator is the person who will have authority over your child’s financial assets. This might be necessary if the child received an inheritance, settlement, or other funds that need proper management until the child reaches a certain age or can manage the assets themselves. This includes Social Security benefits your minor child would receive based on your earnings. If you establish a trust for your children (which I will discuss later in this article), the conservator does not manage the assets in the trust; these assets will be controlled by the person you name as Trustee.
Like naming a guardian, you generally name a conservator in your Will. The conservator can be the same person serving as guardian, but it isn’t required. The conservator will also need to go through the court process to be appointed, which can take a long time and requires a lot of court oversight.
3. Parental Appointment of Temporary Agent
I’ve mentioned that a guardian or conservator named in your Will must go through a court process to be appointed, and that this court process can take a long period of time. What happens during this time that your guardian or conservator is waiting to be appointed by a court? Who takes care of your child and makes decisions for them?
Massachusetts law allows parents of a minor or incapacitated child to designate a temporary agent to take care of the child for up to 60 days. This temporary agent has the power that the parent had regarding the care, custody, or property of the minor or incapacitated child until a permanent guardian or conservator is appointed by the court.
The temporary agent is appointed through a document called a Parental Appointment of Temporary Agent. Keep in mind that you and the other parent must appoint a temporary agent together unless the other parent consents to the appointment in writing or the other parent’s parental rights have been terminated.
4. Create a Will or Establish a Trust
Drafting a comprehensive Will is the cornerstone of any estate plan, especially for young parents and families. As I mentioned earlier, you can designate a guardian and conservator for your minor or incapacitated children in your Will. Your Will also specifies how your assets will be distributed to your children; however, it is important to note that your Personal Representative cannot distribute funds over $5,000 directly to a minor child.
In Massachusetts and many other states, minors under the age of 18 cannot assume control of property given directly to them through an inheritance. If you leave money or assets to your minor child through your Will and you do not specify how those assets are handled, then a conservator will need to be appointed by a court to manage the funds.
This can be avoided by establishing a trust for your minor or incapacitated child. A trust can manage and protect your child’s inheritance and be tailored to your preferences, specifying when and how your child will receive assets. You can also name a Trustee to manage the trust assets on behalf of your child. The Trustee may be a family member or friend, professional fiduciary (attorney or accountant), or corporate fiduciary (such as a bank).
5. Properly Designate Beneficiaries
You should regularly review and update beneficiary designations on your life insurance policies, retirement accounts, and other assets. Well-intending parents may name their minor or incapacitated children as beneficiaries of their life insurance policies or retirement accounts so that the child receives the assets directly. However, remember that minors under the age of 18 cannot assume control of money. This means that naming your minor child as a beneficiary can result in unnecessary complications and a conservator needing to be appointed by the court. Naming an incapacitated child comes with its own set of complications, which can include the child losing essential government benefits.
It is important to consult with an experienced estate planning attorney about properly designating beneficiaries on your life insurance policies, retirement accounts, and other assets to ensure that the funds are used for your minor child’s care while reducing any unnecessary hurdles or court involvement.
These are tough decisions that require thoughtful consideration and planning. As your family grows, the last thing you want to think about is what happens to your child if you are no longer around. Unfortunately, life is unpredictable, and taking proactive steps now will provide peace of mind knowing that you have taken care of your child’s well-being, no matter what the future holds. Estate planning is crucial in securing your child’s future and addressing the unique needs of your family. We are happy to help you ensure that the legal aspects are properly handled so that you can go back to making great memories with your family, and maybe even finishing those piles of laundry.
Attorney Brittany Hinojosa Citron 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. 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, 2023
© 2023 Samuel, Sayward & Baler LLC
From Heirlooms to Hurdles: What is Ademption by Extinction and How Does it Affect My Stuff?
When you are contemplating your estate and how you would like your property distributed to your loved ones after your death, the first thoughts that may come to your mind are “I want my jewelry to go to my daughter and stay in the family,” or “my classic car should go to my brother.”
Ensuring the smooth transfer of your cherished possessions is a significant consideration when creating your estate plan, especially if you want to pass on special family heirlooms. What if you give some of your jewelry to your niece while you are alive, but your daughter expects to receive it after your death? Your actions while alive can significantly impact the distribution of your tangible personal property at your death if you do not give proper direction in your Will.
Understanding Ademption by Extinction
In Massachusetts and in many other states, the legal doctrine of “ademption by extinction” arises when a specific distribution of an asset in a Will cannot be fulfilled because the property no longer exists in the deceased’s estate at the time of death. In other words, if you state in your Will that a particular item goes to a specific person, and that item is no longer owned by your estate at the time you pass away, that person does not receive the item.
For example, if your Will states that your diamond ring will be distributed to your daughter when you pass away, and you sell the ring before your death and do not purchase another one, then your diamond ring is not held in your estate at death and, therefore, it cannot be distributed to your daughter. Under Massachusetts law, this further means she will not receive compensation or replacement for the lost property (the diamond ring), unless the Will specifically provides for an alternative arrangement. In other words, your daughter will be out of luck with receiving a diamond ring or its equivalent from your estate after your death, although there are a few limited exceptions to this rule.
Solutions to Ademption by Extinction
Given the potential complications of ademption by extinction, you should think carefully about how you distribute your tangible personal property in your estate plan. Here are some things to consider:
1. Regularly review and update your Will.
It is important to periodically review the specific distributions you made in your Will to reflect changes in your assets. When you sell your car or notice your aunt’s pearl necklace gathering dust in the jewelry box, you should review your estate plan to make sure it still aligns with your wishes to distribute that tangible personal property after your death. If you acquire valuable items, such as artwork or antiques, make sure to update your Will to specify who should receive them.
2. Provide detailed descriptions.
When distributing specific items, you should provide detailed descriptions that uniquely identify each item. For example, instead of describing an item as “my car,” you may describe it as “my red 2023 Lamborghini.” This can help prevent confusion and disputes among beneficiaries in case you have multiple Lamborghinis.
3. Create a Tangible Personal Property Memorandum.
In Massachusetts, you can create a separate document called a Tangible Personal Property Memorandum that accompanies your Will. This document allows you to specify in detail the distribution of your tangible personal property and can provide guidance to your Personal Representative when it is time to distribute items to specific beneficiaries. This memorandum is typically referenced in your Will and can include provisions that allow the memorandum to be legally binding on your Personal Representative. It is a good idea to work with an experienced estate planning attorney to make sure your distribution wishes are properly expressed in the memorandum.
You can also easily change the memorandum from time to time as you acquire and sell personal property without the need to visit your estate planning attorney every time. Keep in mind that your tangible personal property consists of items such as furniture, clothing, cars, collectibles, artwork and jewelry, and the memorandum does not distribute other assets, such as bonds, cash, treasury certificates, bank accounts, real estate, or retirement accounts.
4. Discuss your intentions.
Communication is key. Have a conversation with your loved ones and Personal Representative to ensure that they are aware of your wishes regarding the distribution of your tangible personal property.
5. Work with an experienced Estate Planning Attorney.
Estate planning laws can be complex. A qualified estate planning attorney can provide valuable guidance to help you navigate the nuances of ademption by extinction and ensure that your distribution wishes are carried out effectively.
It is important to us at Samuel, Sayward & Baler to assist you with preserving your legacy and providing you with peace of mind that your cherished possessions are passed on to your loved ones in accordance with your wishes. We can help you create an estate plan that minimizes the risk of ademption by extinction and other issues that may arise after your death by offering guidance tailored to your specific tangible personal property and how to best distribute it through your Will or otherwise.
Attorney Brittany Hinojosa Citron 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. 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.
August, 2023
© 2023 Samuel, Sayward & Baler LLC
Attorney Brittany Citron Gives An Overview Of Her Experience And Her Practice For Our Smart Counsel For Lunch Series
Please watch and if you have any questions or want to learn more please call us at 781 461-1020.