Attorney Maria Baler

Five Reminders of Things to Do this Groundhog Day

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By the time you read this it will likely be Groundhog Day, February 2nd, the day each year when a groundhog named Punxsutawney Phil emerges from his burrow in western Pennsylvania and determines, with questionable accuracy, whether we are in for another six weeks of winter. After last weekend’s blizzard, I think it’s safe to say we are all rooting for winter to be over as quickly as possible!
Many of you may also remember the 1993 movie Groundhog Day starring Bill Murray as a TV weatherman who relives the same day over and over as he goes on location to cover Punxsutawney Phil, and famously says: “Well, what if there is no tomorrow? There wasn’t one today.” In honor of Groundhog Day and in the spirit of the movie, I thought I would remind you of five things we talk about over and over and over again when helping our clients plan for the day when there is no tomorrow.

1. Create or Update your Estate Plan

An estate plan is your opportunity to create a roadmap for what happens to you and your assets if you become incapacitated or pass away. It is your chance to decide who makes legal, financial and health care decisions for you if you are sick, who will be in charge of settling your affairs and distributing your assets after your death, and how those assets will be distributed. Estate plans can be simple or complex. They can be designed to save taxes, avoid the involvement of the probate court, create a structure to manage an inheritance for a beneficiary who is young or foolish or both. Whatever your goals, create an estate plan, or update yours if it has been a few years since you did it. Life goes on, things change. As we say to our clients, it’s never too late to plan as long as you are alive and well, until you aren’t.

2. Fund your Trust

If you have created a Trust as part of your estate plan, you have heard us say many times that funding your Trust is one of the most important tasks that you need to do to ensure your plan works as intended. This means re-titling assets so that they are owned by the Trust, and not by you individually, or designating your Trust as the beneficiary of certain assets so that they will pay to the Trust at your death. Funding a Trust ensures the assets owned by the trust will avoid probate at your death. Funding a Trust can also ensure assets will be sheltered from estate tax at the death of the first spouse of a married couple, savings tens of thousands of dollars in taxes for your children or other heirs. Funding a Trust may also allow someone to manage and use those assets for you if you become incapacitated. So, if you have a Trust, don’t forget to fund it, and don’t delay in doing so.

3. Compile Important Information

If you become incapacitated or pass away, there is a lot of important information that your loved ones will need to know – What assets do you own and where are they located? Who prepares your income taxes? Do you have life insurance? Where is your safe deposit box? Where did you hide your stash of gold coins? What is the password to your Shutterfly account? What is the significance of those old candlesticks that occupy a place of honor on your mantle? Consider sitting down and writing a list of things someone would need to know if you were not able to tell them, including a list of your assets, your advisors (legal, financial, tax), and where your estate plan documents are located. Tell someone you trust where to find this information if necessary. And lastly, keep that list updated so that it will be current when it is needed.

4. Name Financial and Health Care Decision-Makers

Much of the fun and games in your estate plan happens after your death – taxes are paid, assets are distributed, beneficiaries divvy up your tangible property and fight over the patio furniture. However, there are two important documents that will directly impact you while you are alive – your Power of Attorney which names a person who will make legal and financial decisions for you and your Health Care Proxy which names someone who will make health care decisions for you if you are not able to make decisions for yourself. Make sure you have control over who is making decisions for you by creating these documents while you are well, and naming people you trust will make good decisions for you. Taking control of the situation and choosing your decision-makers while you are still able to do so will allow you to make the best choice, will allow you to prepare those decision-makers by discussing your wishes with them. Doing so will avoid a situation where no one is named and a judge decides who will serve in these roles rather than you.

5. Name a Guardian for Minors

Parents of young children do not have a lot of free time, and often the last thing on their mind is writing a Will, since the thought of passing away is remote and very scary. However, as a young parent, writing a Will is one of the most important things you can do. A Will is the one opportunity you have to decide who will serve as your child’s guardian if you are not able to do so. A guardian is a person who will be appointed by the Court to have custody of your children, and to make decisions regarding where they live, where they go to school, and their health care. If one parent dies, a child’s surviving parent will be named as the child’s guardian unless that parent is unfit. However, if both of a child’s parents are deceased, an alternate guardian should be named.

Naming a guardian for your minor children is one of the most difficult decisions you will make, but is arguably the most important thing you can do to ensure your child’s well-being if you die before your child is an adult. There is no perfect choice for this role, and often parents need to compromise on their ideal choices. As your children grow and change, a different person may be more appropriate, and your Will can be changed to name a different guardian at a later date. Naming someone is better than naming no one. If you die without naming a guardian for your children, the Court will have to choose among the people who ask to be appointed. And chances are some of those people may not be the people you would have chosen if you had the choice. Unfortunately, without a Will, the Court has no idea who your choice would be.

Long winter weekends, especially when COVID-19 has limited many people’s activities, are a good time to cross things off the To Do List. Put some of the above items on your list and get them done. Here’s hoping you will be around to celebrate many more Groundhog Days to come and fingers crossed for an early spring!

Maria Baler, Esq. is an estate planning and elder law attorney and partner at Samuel, Sayward & Baler LLC, a law firm based in Dedham. She is also a former director of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA), and the immediate past President of the Board of Directors of the Massachusetts Forum of Estate Planning Attorneys. For more information, visit www.ssbllc.com or call (781) 461-1020. 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.
February 2022
© 2022 Samuel, Sayward & Baler LLC

 

Smart Counsel Webinar – Fraud Prevention in the 21st Century – What You Need to Know to Keep Your Information Safe

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Join us for our next Smart Counsel webinar on Thursday, February 24th when Norfolk County District Attorney Michael Morrissey will share his expertise on fraud prevention, cyber hacking, scams and identity theft. 

Attorney Maria Baler will join him and speak to the importance of having updated estate plan documents that permit trusted individuals to assist you if necessary, including the ability to access your digital assets. 

In addition to hearing from both Norfolk County District Attorney Michael Morrissey and Attorney Maria Baler, attendees will have the opportunity to ask questions. 

Join us virtually for this presentation on Thursday, February 24, 2022 from 6:00 pm to 7:30 pm.  

Contact Victoria Ung at 781/461-1020 or ung@ssbllc.com to reserve a spot for you and a friend.   

The program is free but registration is required.  

Suzanne R. Sayward

Maria C. Baler

Abigail V. Poole  

Francis R. Mulé

Megan L. Bartholomew

October is National “Special Needs” Law Month!

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October is Special Needs Law Month, the purpose of which is to to educate those with special needs, their families, and caregivers about ways to protect their rights and advocate for those with special needs.

For estate planning attorneys, it is an opportunity for us to remind those who have a loved one with special needs, of the importance of planning for that individual’s future. In particular, parents of special needs children should ensure that their estate plan will make appropriate provisions for the special needs child when they are no longer living, and for any assets that child will inherit, to ensure the inheritance does not adversely impact any benefits the child may be receiving.

The attorneys at Samuel, Sayward & Baler are active members in the Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA). Established in 1987, NAELA is a non-profit association whose mission is to be the premier provider of legal advocacy, guidance and services to attorneys to help them enhance the lives of individuals with special needs, and individuals as they age. MassNAELA’s mission is to be a leader in both elder law and special needs law in Massachusetts. In celebration of Special Needs Law Month, MassNAELA has created the Special Needs Advocacy Toolkit to help individuals and families promote the rights and well-beings of those with special needs.

At Samuel, Sayward & Baler, we assist clients who have family members with special needs, in designing an estate plan that will ensure their family member is provided for in ways that protect eligibility for public benefits, and address other important issues. We also work with disabled individuals to ensure they have appropriate planning documents in place to allow loved ones to assist them as needed, and to manage their own assets if appropriate.  Special needs trusts, powers of attorney, health care proxies and HIPAA authorizations, are all important documents that we discuss and implement for these clients. If you have questions about the legal documents that you or a family member with disabilities should have in place, please make an appointment to meet with one of our attorneys.

Ask SSB

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Q: What is probate and why does everyone want to avoid it?

A: Probate is the court process of changing the title on an asset when someone passes away. Real estate, bank accounts, and investment accounts owned in a person’s individual name at death which do not have a beneficiary designated are examples of assets that need to be probated. The term ‘probate’ is often used to describe the process of administering someone’s estate after death. This typically involves marshalling the probate assets, paying debts, taxes and expenses, and ultimately distributing the estate assets to the beneficiaries entitled to receive them.

Delays, costs, aggravation, and loss of privacy are all good reasons to avoid probate. If an asset needs to be probated, that means no one will have access to that asset until the court has allowed the probate petition and a Personal Representative has been appointed. A delay in being able to access money to pay expenses such as funeral costs or to make mortgage payments creates a difficult and aggravating situation for surviving family members who are trying to manage matters after someone has passed away. In Massachusetts, the probate court system is currently in serious disarray and delays are significant. Probate can be costly, with attorney fees and court filing fees that must be paid. Finally, probate is a public proceeding meaning that anyone who wants to snoop into the business of a decedent’s probate estate has the opportunity to do so.

Avoiding probate is relatively easy. For example, if you own assets jointly with your spouse or child, the asset will pass automatically and entirely to the survivor when the first joint owner passes away; no probate would be needed. Assets that have a named beneficiary to receive them also avoid probate provided the named beneficiary survives the owner of the asset. IRAs and other retirement accounts, life insurance, and annuities typically fall into this category. Assets that are titled in the name of a Trust also avoid probate. While owning assets jointly with another person is a way to avoid the need to probate the assets there are some downsides to joint ownership that should considered before adding someone else as an owner on your account.

Samuel, Sayward & Baler LLC Supports Westwood Council on Aging with Dining Out Gift Basket

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Samuel, Sayward & Baler LLC will be participating in the Westwood Council on Aging’s Fifth Annual Holiday Raffle, which begins today and runs through mid December. Each basket is worth over $250. Tickets are $1 each or $10 for 12 tickets and can be bought at the Westwood Senior Center.

Samuel, Sayward & Baler LLC is donating a “Dining Out Gift Basket” made up of $50 Gift Cards to Anthony’s Coal Fired Pizza, Conrad’s, One Bistro, The Chateau & The Toast Office. Valued at $250.  100% of the donations will be used to underwrite Westwood Council on Aging programs and to help seniors in Westwood.

Five Things to Consider When Choosing a Guardian for Minor Children

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By Attorney Maria C. Baler

For parents of minor children, one of the most important reasons to create a Will is to name a guardian for your children if you pass away while they are still under the age of 18. A guardian is a person who will be appointed by the Court to have custody of your children. The guardian is the person who will make decisions regarding where your children live, where they go to school, and their health care. If one parent dies, there is no need to have a guardian appointed where there is a surviving parent unless that parent is unfit. However, if both of a minor child’s parents are deceased, a guardian needs to be appointed. Here are some things to consider when deciding who to name as guardian for your children

1. No One Will Be as Good as You

Choosing a guardian for your minor children is hard. No parent wants to imagine a world where they are not there for their children as they grow up. However, it is a parent’s job to keep their kids safe and well cared for, and naming a guardian is part of being a parent. It is your one opportunity to choose the person who will raise your children if you can’t. The first thing to remember is that no one will do as good a job as you. Don’t waste time lamenting that you can’t think of anyone that will be the perfect substitute parent for your children – there is likely no one like that. Instead, try to choose a person who shares the values that are important to you – whether those values are around education, religious upbringing, cultural traditions, etc. If your children are old enough, try to choose someone your children know and like and enjoy spending time with. You should also consider the age of the person you are naming and whether they will have the time and energy to be an active participant in your children’s lives until they become adults.

2. Considerations When Naming Married Guardians

If the guardian you have in mind is married or in a long-term relationship, consider whether you want to name both spouses/partners as co-guardians. This is appropriate if you would want both people to make decisions on matters concerning your children, and if you would still want either of them to continue to serve as guardian if the other passes away while your children are still under the age of 18. If only one member of a married couple is the person you want to be guardian, then name only that person as guardian. Your Will should specify who your choice for guardian would be if the first person is not able to serve as guardian for any reason.

3. Considerations for School-Aged Children

When my son was young, I knew that if something happened to my husband and me, I would want him to continue to live in our home and attend the same school he did when we were alive. This type of stability can be important in the aftermath of the death of a parent, especially if a strong support system exists in the community in the form of teachers, coaches, neighbors and friends. The older your children are, the more important this can be given longstanding friendships, sports and other extracurricular activities that your children would want to continue. If it is important to you that your children continue to live in your community and continue to attend school there, consider naming a guardian who would be able to move into your home and continue to live there with your children. If that’s not possible, consider naming a guardian who already lives in your community and who would take your children into their home to live.

4. Considerations for Divorced Parents

If you are a divorced parent of minor children, naming a guardian for your children is no less important. If one parent dies, the child’s surviving parent will be the child’s natural guardian unless it can be shown that the surviving parent is unfit. For many divorced couples who share custody and successfully co-parent their children, this makes sense, and each parent should create a Will naming the other as the primary guardian for their child, and an agreed-upon person as the alternate guardian if both parents are not living or are otherwise unable to act as guardian.

In situations where one parent feels the other parent is unfit to serve as guardian, it is important to make this clear. In your Will, you should name someone other than the other parent as guardian, and be specific that it is your wish that the surviving parent not be appointed as guardian for your child. It is not enough to just make this statement; you would need to leave documentation evidencing the reasons why the surviving parent is unfit. Document these facts in a document separate from your Will, share your knowledge with trusted people and with the Personal Representative you have named in your Will, and ask those people to come forward and share their knowledge if the surviving parent asks the Court to be appointed as guardian instead of those you have named in your Will.

5. Just Name Someone!

Naming a guardian for your minor child is one of the most difficult decisions you will make. Fortunately, it is unlikely that the guardian will ever need to step in, as it is likely you will live until your children are well past the age of 18. However, if you don’t, naming a guardian is arguably the most important thing you can do to ensure your child’s well-being. Despite its importance, I have seen many parents completely paralyzed by this decision – unable to agree on who they should name as guardian for their child. To these parents I say – Just Do It! Come to a compromise and name someone who is right for your children at this moment in time. As your children grow and change, a different person may be more appropriate, and your Will can be changed to name a different guardian at a later date. Naming someone is better than naming no one. If you die without naming a guardian for your children, the Court will have to choose among the people who ask to be appointed. And you know how that goes – undoubtedly, your least favorite sister-in-law will think she is the best candidate to raise your children and if no one objects she will get the job.

You know your children best, and know who you want to raise them if you can’t. So go ahead and make a choice. Get in touch with an estate planning attorney and create a Will that names a guardian for your children. That person will not be perfect, but it will be someone you have chosen. Naming a guardian now will also give you the opportunity to discuss things with the person you name, and create Letters of Instruction for them that describe your hopes and dreams for your children’s future. All of this will give your children the greatest chance of living their best life, even if it is without you.

Maria Baler, Esq. is an estate planning and elder law attorney and partner at Samuel, Sayward & Baler LLC, a law firm based in Dedham. She is also a former director of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA), and the current President of the Board of Directors of the Massachusetts Forum of Estate Planning Attorneys. For more information, visit www.ssbllc.com or call (781) 461-1020. 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.

October, 2021
© 2021 Samuel, Sayward & Baler LLC

Trust Funding

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Do you want to avoid probate, make sure your assets are distributed as you wish at your death, and save estate tax in the process? Creating a trust is the way to accomplish all of this, and funding your trust with your assets is an essential step in the process! In this video, Attorney Maria Baler discusses trust funding – what is it, how do you do it, and why it is so important.

The Importance of Planning for Incapacity

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I run into clients often who jokingly tell me “I’m not going to die” when discussing their estate planning.  Although many of us would like to think we are immortal, it is a fact that we will all die sooner or later.  Harder to imagine for many people is that they may experience a period of incapacity prior to death.  This may happen due to hospitalization or illness, or due to dementia in one of its many forms, including Alzheimer’s disease.  

It is just as important to plan for incapacity as it is to plan for death.  As we often tell our clients, planning for incapacity may be even more important, because you are still alive and will be directly impacted by how your assets are managed for you and who is in control on your behalf.  Whatever happens after your death will impact those you leave behind, but for better or worse will not impact you!

Planning for your incapacity is serious business.  It involves identifying people you can trust, and creating documents that will allow them to assist you if and when you need or want assistance in the future making financial, legal or health care decisions.  Planning for incapacity involves:

  • Creating a Power of Attorney that names a person who you authorize to handle your legal and financial affairs if you are unable to do so.  This should be someone you trust implicitly to handle things appropriate and in your best interest.
  • Creating a comprehensive list of assets, legal and financial advisors, beneficiaries, digital asset access information, and other information that will be crucial to someone who may have to take over your financial affairs unexpectedly.
  • Creating a Health Care Proxy that names a Health Care Agent to make health care decisions for you if you are unable to make those decisions yourself.
  • Making sure your Health Care Agents understand your wishes about the type of care you want to receive, particularly at the end of life, and even more importantly if you become incapacitated and are unable to articulate your care preferences at that time.  There are many organizations that assist people to express those wishes – The Conversation Project is one of many.
  • If you already have these documents, reviewing them periodically to determine if the people named in the documents are still trusted people you can count on to be there if you are not well.
  • If the people you have named are getting older or are not well, do you have appropriate alternates named to take their place if they cannot (or do not wish to) serve in those roles if the time comes?

In these documents you can also designate a person to serve as your conservator or guardian should a court need to step in and appoint a person to make decisions for you.  This can help avoid a situation where you need assistance and the Court must appoint someone to make decisions for you, who may not be someone you would have chosen.  I am reminded of the recent move I Care a Lot, a black comedy / thriller distributed by Nexflix in 2020, starring Rosamund Pike who won a Golden Globe for the role. The movie tells the story of a professional legal guardian who has less than good intentions.    Although the movie is not based on a true story, it is based on real-life situations and scams like one that occurred in New York in 2013.

Unfortunately, this past year and a half has taught us that life and health are unpredictable.  Make sure you have all your bases covered, and have chosen and named people you trust to handle things for you if you are unable so you don’t end up vulnerable to those who may take advantage of your situation.

Maria Baler, Esq. is an estate planning and elder law attorney and partner at Samuel, Sayward & Baler LLC, a law firm based in Dedham. She is also a former director of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA), and the current President of the Board of Directors of the Massachusetts Forum of Estate Planning Attorneys. For more information, visit www.ssbllc.com or call (781) 461-1020. 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.

August, 2021

© 2021 Samuel, Sayward & Baler LLC

 

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

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