Attorney Brittany Hinojosa Citron discusses Why Your Children and Relatives Need an Estate Plan. Please watch and if you have any questions or want to learn more please call us at 781 461-1020.
How a Marriage or Divorce Can Affect Your Estate Plan
When it comes to estate planning, understanding how major life events like marriage and divorce can affect your estate is crucial. These events can significantly impact the distribution of your assets if they are not properly addressed in your estate plan. Here’s what you need to know to ensure that your estate plan remains effective and reflects your current wishes.
Marriage: Premarital Wills
If you get married after executing a will but you never get around to updating your will to include your spouse, your premarital will stays in place at your death. However, Massachusetts law allows the surviving spouse to take his or her intestate share of your estate before your property is distributed under your will. The surviving spouse’s intestate share is the share that the spouse would have received if you died without a Will. This is called an “elective share” of your estate, and your spouse can claim this share regardless of what your premarital will says.
If your premarital will gives property to your child who was born before your marriage and who was from a prior relationship (i.e., not also your spouse’s child), then the surviving spouse’s elective share is taken from the portion of the estate that you did not give to such child. The amount of the elective share that the surviving spouse can take depends on several factors, such as whether you had children with your spouse, whether either of you had children from prior marriages or relationships, and if neither of you had children but you die with a living parent.
There are exceptions to this rule. If you knew you were getting married, you could have stated in your premarital will that it is being made in contemplation of marriage to your spouse and your will is to be effective notwithstanding any subsequent marriage. But if marriage was the last thing on your mind when you made your will, then you need to revise your premarital will to avoid potential conflicts and ensure that your estate is distributed according to your wishes.
Divorce: Automatic Revocation of Provisions
If you have a will and subsequently get divorced from your spouse, any provisions you made in your will for your spouse are automatically revoked. This also applies to beneficiary designations on life insurance and retirement plans, transfer-on-death accounts, and any other revocable disposition. If your will named your former spouse or family members of your former spouse as Personal Representative of your estate, those designations are treated as if the former spouse predeceased you. However, if you and your former spouse later marry each other again, then the previously provisions in your will are revived.
This automatic revocation only applies if you are really divorced, not if you are just separated, and not if your divorce is not yet final.
Although the automatic revocation of dispositions to your spouse may seem to do the trick, they can wreak havoc on an estate plan and create unintended consequences. You may intend to benefit your former spouse even after your divorce with life insurance or some other asset, but the beneficiary designation is automatically revoked upon your divorce. Additional steps must be taken to ensure that designation will stick after the divorce occurs.
After a divorce, revising your will is essential to remove your former spouse (or include them, if you want to provide for your former spouse) and make any other necessary changes, such as updating your named Personal Representatives.
All this is to say that significant life events, whether through marriage or divorce, can dramatically alter your estate plan and result in unintended consequences. By proactively revising your will and other estate planning documents when these events happen, you can ensure that your estate is handled according to your wishes and that your loved ones are provided for as intended.
Attorney Brittany Hinojosa Citron is an associate attorney with the Dedham, Massachusetts, firm of Samuel, Sayward & Baler LLC which focuses on advising its clients in the areas of 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 or to schedule a consultation with one of our attorneys, please call 781-461-1020.
July 2024
© 2024 Samuel, Sayward & Baler LLC
From Summer Fling to Forever: 5 Estate Planning Considerations for Couples
Summer is approaching. The warm air, the sunshine boosting our serotonin, and those summer nights spark summer romance which can be just a fling, or it can be the start of a deep, transformative relationship. June also marks the beginning of wedding season and, of course, Pride Month, where we celebrate the LGBTQ+ community and all forms of love.
Whether you are married or not, estate planning is critical in providing for your special someone when you are gone. It is also important to plan for your incapacity to ensure that your partner can take care of you and your well-being. Here are 5 things every couple should consider when planning their forever.
1.Don’t assume that everything will go to your spouse or significant other at your death.
A lot of couples assume that when one of them dies, all of their property goes to their spouse or significant other. Sometimes this is true, and sometimes it isn’t.
If you don’t have a Will, the intestate laws of Massachusetts will determine who will inherit your estate. If you are married and all of your children are children of the marriage, then your estate will pass to your spouse. But if either you or your spouse have children from another relationship, then your spouse will only receive the first $100,000 plus 50% of the remaining estate.
If you are married and don’t have children, and you have at least one surviving parent, then your estate will be divided between your spouse and your parent(s). Also, if you are not married to your partner, regardless of how long you have been together, your partner does not automatically inherit your estate. Don’t put off creating an estate plan on the assumption that everything will pass to your spouse or partner anyway, because that may not always be the case.
2.Don’t assume that your spouse or significant other will be able to do everything for you if something happens to you.
Planning for you and your partner’s incapacity is just as important as planning for after your death. If you become incapacitated, your medical provider will typically look to your next of kin to make healthcare decisions on your behalf. Unfortunately, if you are not married to your partner, your partner is not considered your next of kin, so they won’t be able to make healthcare decisions on your behalf, when your partner is probably the one person who best knows your wishes. Executing a Health Care Proxy can fix this issue by designating your partner as your healthcare agent to make decisions for you should you become incapacitated.
This issue also arises with handling your finances. Without a Power of Attorney, your partner will not have the authority to act on your behalf with your finances if you become disabled or incapacitated. This is especially important when you rely on both of your incomes to maintain your household and pay expenses.
3.Strategies to reduce estate tax liability.
Married couples can utilize different estate planning strategies to minimize tax liabilities after their deaths and maximize the inheritance for their beneficiaries.
Property passing to a U.S. citizen spouse at the death of the first spouse passes free of federal and Massachusetts estate tax, regardless of the amount. The federal estate tax exemption is the amount that each person is permitted to pass on free of any federal estate tax, which is currently $13.61 million per person for 2024. This translates into $27.22 million for a married couple.
Massachusetts has its own estate tax system, and the exemption is $2 million per person; but, it is a “use it or lose it” exemption, meaning that if a married couple has a $4 million estate and they own all of their assets jointly or have each other named as beneficiary, when the second, surviving spouse dies with a $4 million estate, there will be Massachusetts estate tax of $180,800 due. If you “use” the $2 million exemption on the first spouse’s death through a credit shelter trust, you could reduce or even eliminate the Massachusetts estate tax liability when the second spouse dies.
Couples should be aware of these thresholds and talk to an estate planning attorney about estate planning strategies such as gifting or setting up trusts to minimize their tax liability.
4.Advanced planning for long-term care (nursing home) costs.
If you and your spouse have the gift of time, then you need to think about how you will pay for long-term care costs in the future. Long-term care planning involves preparing for the potential need for nursing home care. Although long-term care is primarily associated with older adults, it can be necessary for anyone with chronic illnesses, disabilities, or injuries that limit their ability to perform daily activities. According to the U.S. Department of Health and Human Services, 70% of Americans aged 65 and over can expect to use some form of long-term care during their remaining years.
There are different estate planning strategies that married couples can use to ease the cost of long-term care and preserve assets in the event they need to apply for Medicaid.
Growing old together also means planning on taking care of each other financially if one of you needs care.
5.Don’t be scared to discuss a prenuptial agreement.
Before you say “I do”, consider a prenuptial agreement to protect your assets in the event of divorce. Many couples don’t want to talk about a prenuptial agreement because no one wants to talk about divorce before you’re even married. But you can protect your wealth, your family business, and even children from a prior marriage from losing out on an inheritance by entering into a prenuptial agreement. Consider a prenuptial agreement if your assets or circumstances are such that you want added assurance that no matter how matters of the heart may go, your assets and your children will be protected.
Knowing these aspects of estate planning can help couples protect their assets, ensure their wishes are carried out, and provide for their loved ones. There is nothing more romantic than presenting a well-thought-out estate plan to your partner (said the estate planning attorney).
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.
June 2024
© 2024 Samuel, Sayward & Baler LLC
Differences between the Health Care Proxy and Living Will
Attorney Brittany Hinojosa Citron Discusses Health Care Proxy & Living Wills in Massachusetts, on this week’s edition of Smart Counsel for Lunch. Please watch and if you have any questions or want to learn more please call us at 781 461-1020.
Getting Important Documents in Place for Your Child
Attorney Brittany Hinojosa Citron Discusses Getting Important Documents in Place for Your Child. Please watch and if you have any questions or want to learn more please call us at 781 461-1020.
Understanding the Massachusetts Homestead Law: Protecting Your Home and Family
By: Brittany Hinojosa Citron
Owning a home is often considered one of life’s most significant accomplishments. Beyond its emotional value, a home is also a substantial financial asset for many individuals and families. However, unforeseen circumstances such as lawsuits, debts, or financial challenges can threaten the security of homeownership. To safeguard against these risks, Massachusetts offers homeowners the opportunity to declare a homestead.
The Massachusetts homestead law protects homeowners from the forced sale of their primary residence to satisfy certain debts or obligations. By filing a Declaration of Homestead in the county or district Registry of Deeds where the residence is located, homeowners can claim a portion of the equity in their home as “homestead protection.” This protection applies to various creditors, but it does not apply to mortgage lenders, tax liens, Medicaid/MassHealth liens for benefits paid on behalf of the homeowner (including benefits paid for nursing home care), and other specific types of debt. If the equity in your home is greater than the homestead protection, the home may still be sold, but the creditor will receive only what is left after you first receive proceeds equal to the amount of the homestead protection.
A homeowner is entitled to automatic homestead protection of $125,000, but homeowners who file a Declaration of Homestead with the Registry of Deeds can increase that protection to $500,000. For married couples where both spouses are over the age of 62, the homestead protection can be doubled by $1 million by filing an “Elderly” Declaration of Homestead. Increased homestead protection is also available to disabled individuals. Homestead protection is available whether you own your property in your individual name(s) or in trust.
Homestead protection isn’t just for the homeowner but extends to their spouse and minor (under age 21) children who reside in the home. This ensures that spouses and children are safeguarded from the loss of their primary residence due to financial difficulties.
Filing a Declaration of Homestead in Massachusetts is relatively straightforward and inexpensive. By taking advantage of the Massachusetts homestead law, homeowners can secure their primary residence and help ensure a portion of the equity in their homes for themselves and their loved ones. Whether facing unforeseen circumstances or simply seeking peace of mind, declaring a homestead is a prudent step towards protecting one’s most significant asset – the family home. If you have questions about homestead protection or if we can help you with your estate planning needs, please contact us to schedule a consultation with one of our attorneys.
Attorney Brittany Hinojosa Citron is an associate attorney with the Dedham, Massachusetts, firm of Samuel, Sayward & Baler LLC which focuses on advising its clients in the areas of 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 or to schedule a consultation with one of our attorneys, please call 781-461-1020.
March 2024
© 2024 Samuel, Sayward & Baler LLC
Five Things To Do When a Loved One Passes Away
Dealing with the death of a loved one is a challenging and emotional process. Whether the passing was 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, and you may need guidance throughout the process. Here are five things you should consider doing after a loved one’s death:
1. 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 (the person named in the Will who is responsible for administering the estate) 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.
2. 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 settling and administering the deceased’s estate. Look for these documents and gather as much information as you can.
If the deceased named you as the Personal Representative of his or her estate, then you will need death certificates for the deceased. You should obtain about 5 to 10 death certificates to provide to financial institutions, life insurance companies, and the court if probate is necessary.
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.
3. 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 to ensure the real estate and the deceased’s personal belongings are secure. 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.
4. 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 $2 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. You want to be thorough and properly navigate the legal and financial aspects associated with administering the estate.
5. 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. Try offering support to each other during this difficult time.
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 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 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 or to schedule a consultation with one of our attorneys, please call 781-461-1020.
February 2024
© 2024 Samuel, Sayward & Baler LLC
The Cost of Long Term Care
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.