What happens if you do not have an estate plan in place? In this Smart Counsel for Lunch, Attorney Sean Downing of Samuel, Sayward & Baler LLC discusses why estate planning matters, what can happen when important documents are missing, and how having a plan can help protect you and your loved ones. For those who want to learn more about how estate planning applies to today’s families, Sean is also hosting an upcoming program, Estate Planning for Nontraditional Families. Learn more and register here: https://ssbllc.com/event/estate-planning-for-nontraditional-families/
5 Things Parents with Young Children Need to Know about Estate Planning
It being May, Mother’s Day is on our minds so what better time to think about what moms (and dads!) of young children need to know about estate planning.
For most parents, children take up a lot of ‘headspace’, especially when their children are young and dependent on them. The well-being, safety and happiness of their children is of paramount importance to parents and estate planning is an essential component of making sure that all steps needed to protect their children have been taken.
Read on for 5 things parents with young children need to know about estate planning.
1. Naming a Guardian is Non-negotiable
One of the most critical decisions parents with minor children need to make is naming a guardian who will raise their children if something happens to them before their children are grown. The nomination of a permanent guardian is made in a Will. It is important to note that naming a guardian in a Will does not grant the named person status as the legal guardian at the death of the parents. The appointment of a permanent legal guardian must be done by the court which takes time which means there is a gap between the need for a legal guardian and the appointment of a legal guardian. This gap can be several months. As such, it is important that parents also complete a Parental Appointment of Temporary Agent. This is the statutory document in Massachusetts that allows parents to name someone who will have immediate legal authority to take custody of and make decisions for minor children should the parents be unable to care for the child. For more about appointing temporary and permanent guardians for minor children check out Attorney Leah Kofos’ video and accompanying article.
2. Creating a Will Alone is Not Sufficient
While a Will is essential for parents of minor children, a Will does not avoid court involvement when minors inherit assets. In most cases, a court-supervised conservatorship will be required until the child turns 18, at which point they will receive their inheritance outright. Anyone who has ever been 18 years old will most likely be horrified at the idea of someone that age receiving a significant amount of money or assets. Read on for a better way to leave an inheritance to children.
3. A Trust is (Usually) a Must for Parents of Young Children
Creating and funding a revocable living Trust is a common way to avoid probate thereby allowing surviving family members fast and easy access to funds when the trust makers pass away. For parents of minor children, a living Trust has the added benefit of ensuring that the inheritance they leave their children is administered for those children by the people they name to do so and outside of probate. Leaving assets to minor children via a Will, means the probate court will have ongoing oversight of the inheritance so long as the children are under age 18. The court will require that annual accountings be filed with the court and will appoint a third party to review those accountings. This means added cost, delays and a public proceeding.
4. Don’t Forget About Your Beneficiary Designations
Certain assets—such as life insurance and retirement accounts—pass directly to named beneficiaries, regardless of what your Will or Trust provides. Naming a minor child as a beneficiary is unadvisable as it will require that a court appointed conservator be appointed for the child in order to receive the asset. The probate court will maintain ongoing jurisdiction over the asset until the child turns 18 years old at which point the account will be distributed to the child. For parents who create a Trust, designating the Trust as the beneficiary of these assets is usually the best course of action. If qualified retirement accounts (IRAs, 401Ks) are going to be distributed in trust it is critical that the Trust be properly drafted to administer these assets to ensure that the best tax outcome is available.
5. The Planning Doesn’t Stop When Children Reach the Age of Majority.
Your Estate Plan is always a work in progress, and as your children grow up and change, so too should your Estate Plan. When your children are very young, the named guardians in your Will and Parental Appointment of Temporary Agent are extremely important. These people will shape your children’s lives should something happen to you. As your children grow up and you get to know their personalities, you will get a better understanding of what age, if ever, your children should have access to their inheritance. When your children become adults and become more responsible, you may want to name them as Fiduciaries or Agents in your estate plan to take care of you and your assets in case of incapacity or death.
Estate planning for parents is ultimately about creating a framework of care, protection, and financial security. With the right plan in place, you can feel confident that your children will be supported by the people you trust and in the manner you intend.
If you would like to review your estate plan or create a plan, please don’t hesitate to contact our office and make an appointment with one of our attorneys.
Attorney Sean M. Downing is an 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.
May, 2026
© 2026 Samuel, Sayward & Baler LLC
5 Estate Planning Myths for Young Families
Happy April Fools’ Day!
Today is day full of trickery and pranks, but hopefully these following estate planning myths won’t fool you.
Myth 1: Young people don’t need estate plans.
A lot of media centered around estate planning focuses on elderly millionaires leaving behind their expansive estates. However, estate planning can be extremely useful for people from all walks of life. Regardless of the amount of assets you own, estate planning can make sure your assets pass to the people you want them to and pass to your beneficiaries in ways that make sense based on their age and abilities (i.e., giving money to minor or incapacitated beneficiaries in a way that benefits them without giving them money outright). Estate planning also can help reduce the administrative burden for your loved ones at death or should you become incapacitated by giving them the power to take care of you and your assets without the need for court intervention.
Myth 2: A Will avoids probate.
When it comes to estate planning, people are often trying to create the simplest plan that achieves their goals. This often takes shape as people avoiding using trusts and just creating a Will. Although Wills are useful estate planning documents that can name guardians and conservators for minor or disabled children and dictate the disposition of your assets at death, Wills do not avoid probate. In fact, the reverse is true where a Will needs to be probated to be enforced. It’s possible that a Will-based plan is the best solution for your estate planning goals, but that decision should be made after weighing the probate burden placed on your loved ones.
Myth 3: The Guardians named in your Will become immediately effective upon death.
If you have minor or disabled children, one of the most important estate planning steps you can take is naming permanent guardians in your Will. These guardians are the people that you would like to take over raising your children if something happens to you. However, it’s important to note that these guardian nominations do not immediately become effective at your death. Instead, your named guardians must go to the Probate and Family Court to petition to become your children’s guardian legally. Being named in your Will simplifies the process for your nominated guardian but does not remove the court involvement. The issue then becomes having a gap in time between your death and the appointment of a new guardian. To fix this, you can appoint an emergency temporary guardian that will become immediately effective for 60 days following your death or incapacity, filling in the gap in time while waiting for the court. This is done in a separate estate planning document, sometimes called a Parental Appointment of Temporary Agent.
Myth 4: Naming minor children on a beneficiary form is a good way to avoid probate.
A common way to avoid probate is to name beneficiaries on your various bank, retirement, and investment accounts. At your death, the asset will pass to the named individuals or entities (if they are still alive) without the need for court involvement. However, there is an extra wrinkle when minor children are named as beneficiaries. Because minor children cannot own assets like an adult (unless they are legally emancipated), there will need to be a court process to appoint a legal guardian for the child to receive the asset where they are named as beneficiary. The account will ultimately go to the minor child’s benefit, but there will still be the need to go to court and pay legal fees, similar to the child receiving the asset via probate. A great way to avoid this issue is to use a trust. A trust can be named as a beneficiary on an account and direct the trustee to use the account assets for a minor child’s benefit without the need for any court involvement or delay.
Myth 5: Your spouse automatically becomes your health care agent.
Your health care agent is the person who steps in to make medical decisions for you if you are unable to make them yourself. For children or other people with legal guardianship over them, their legal guardian makes those health care decisions. However, for emancipated adults, there is no automatic person who makes those decisions for you. This is still true even after you get married. Your spouse is not your health care agent by default. Thus, you need to create a Health Care Proxy if you would like to name your spouse or any other person such as a sibling, parent, or friend, as your health care agent.
Why You Should Think Twice Before Naming a Minor Child as Beneficiary
This week on Smart Counsel for Lunch, Attorney Sean Downing breaks down why naming a minor child as a beneficiary on an account may not be the best approach and what to keep in mind when planning ahead.
To learn more, contact us or call us at 781-461-1020.
Broken Hearts and Lost Inheritances: Protecting Money Left to a Divorcing Child
It’s almost Valentine’s Day, a celebration of all types of love in your life. But sometimes love doesn’t work out, and it’s important to plan ahead to protect your assets from the worst-case scenario.
A common concern for clients is what happens to their child’s inheritance if that child goes on to get a divorce. The fear is that a portion of the hard-earned inheritance left to their child will instead pass to the divorcing spouse. Depending on the state where the divorce is taking place and the nature of the couple’s assets, this is an entirely real possibility, especially in a state such as Massachusetts with its open-ended divorce law.
The best approach to solve this is for your child to enter into a legally binding prenuptial agreement, often called a prenup, before marriage. A prenup can dictate that inheritances are considered the separate property of each spouse. In the case of a divorce, that separate property would not be divvied up with the other joint marital assets but instead stay with the spouse who inherited the assets.
However, sometimes it is too late to get a prenup or the parties involved are resistant to get one. An alternate approach then would be to add protections to your child’s inheritance in your estate plan.
A simple will, trust, or beneficiary designation on an account will give assets to your adult children outright and free of trust. This means that the assets become the child’s assets with no strings attached. In some states, there are some built-in protections for inheritances so long as they don’t become co-mingled with joint assets, i.e., the inheritance remains in a separate account and isn’t used on a joint purchase. However, this is not the case in Massachusetts.
The solution is to give assets to your children in trust. This means that your child will need to ask a trustee to access their inheritance, and the trustee will give the child money according to the standards set up in the trust. A child can be named as the trustee of their own trust share holding their inheritance (meaning they would just need to ask themselves), though for optimal protection another trustee should be named as co-trustee or sole trustee. Because the assets remain in trust, they never become your child’s property. The theory is that these assets are thus not divisible during the divorce.
A couple of caveats: divorce laws are constantly changing particularly in this area as more and more divorcing couples have their wealth established in significant part due to their inheritances. There is no guarantee that a trust set up now will work years in the future. Second, in Massachusetts, a divorce judge divides marital assets “equitably”, not “equally”. A judge could thus give a bulk of the marital assets to one spouse because the other spouse has a large inheritance (even if that inheritance is locked away in a trust). This may not matter much if the inheritance includes assets such as a family vacation house or the like where it’s not just about protecting money from going to the divorcing spouse but rather specific assets.
Even with these caveats, leaving assets in trust for your children is a great way to protect the assets in case your child divorces. Additionally, if your child lives in Massachusetts or another state with estate tax (or qualifies for the federal estate tax), these trust shares provide an estate tax reducing benefit for your child when they pass away.
What’s New at Samuel, Sayward & Baler LLC – Don’t Miss Our January 2026 Newsletter
Attorney Sean Downing discusses our Winter Newsletter, 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.
5 Estate Plan Resolutions
Happy New Year!
It’s now 2026, and many of us are looking for ways to start the new year on a good foot. In this week’s article, we look at 5 Estate Plan New Year’s Resolutions.
1. Review/Update your Estate Plan
After setting up your estate plan, it’s nice to sit back and take a sigh of relief. However, your estate plan is not something you should neglect after completing it. Every couple of years or so (or after any major event in your life), you should review your estate plan to see if (a) your named fiduciaries still make sense, and (b) your distribution of your assets after death is still what you would like. For many families, there are two major transition points where they change their fiduciary designations from parents to siblings/friends and then from siblings/friends to their adult children. Marriages, births, and deaths in your family can also spark needed changes.
2. Organize Financials/Passwords for Fiduciaries
A comprehensive estate plan will have fiduciaries listed to help you if you become incapacitated and to manage your affairs after you’ve passed away. These agents have important jobs, and the best thing you can do to thank them is to organize your financial information and passwords in advance. Creating a spreadsheet of your financial accounts (including bank, retirement, investment, etc.) can be invaluable to the person who steps in to manage your affairs. In a similar vein, creating a system to allow others to access passwords to your email and other online accounts can make payments like utilities much easier for them.
3. Trust Funding
If you created a trust as part of your estate plan, it is important to make sure your trust is funded properly. “Funding” a trust means to assign title of assets to your trust or to list your trust as a pay-on-death or transfer-on-death beneficiary. If your trust is not properly funded, assets may need to pass through your estate to get to your trust. This means that those assets will need to go through probate (often a major purpose of creating a trust is to avoid probate). You should reach out to your estate planning attorney with any trust funding questions to make sure you are optimally funding your trust.
4. Give Out Health Care Proxy
Your Health Care Proxy is your true “emergency” estate planning document that allows your listed Health Care Agent to make health decisions for you when you are unable to do so yourself. Because it may need to be activated unexpectedly, it’s important that your Health Care Proxy is accessible to others. We recommend that all your Health Care Agents, including back-ups, have copies (PDFs are fine) of your Health Care Proxy. We also recommend that you give a copy of your Health Care Proxy to your doctors (often this can be done online by uploading it to your Health Portal). Some phones also permit you to have a copy of your Health Care Proxy easily accessible in an app.
5. Talking with your Family about your Estate Plan
Talking about death and incapacity can be a difficult conversation, especially with your closest loved ones. However, for older clients in particular, having these discussions with your loved ones while you are able and healthy can make future trials easier on everyone. In this way, finding time to sit down with your family to review your estate plan can be extremely beneficial. Another similar approach that people take is to write letters to your loved ones to include in your estate plan binder. These letters can explain uncomfortable realities in your estate plan such as unequal distributions, favoring one child as a fiduciary over another, etc., and can do a lot to reduce tension after you pass away.
Five Things a Successor Trustee Needs to Do When the Grantor Dies
Most people feel honored to be named as a successor Trustee as it signifies that the grantor (trust maker) has great faith and confidence in them. However, with that honor comes a lot of responsibility and potential liability if the Trustee does not carry out their duties properly and timely.
Here are five tasks that a successor Trustee typically must take care of soon after the grantor dies.
1. Engage an experienced trusts and estates attorney. One of the first steps that a successor Trustee should take is to hire an experienced trusts and estates attorney. While serving as Trustee is an honor and can be a rewarding experience, it is also a new experience for most family members or friends who are named to this position. There are significant responsibilities that a Trustee must carry out, some of which are time sensitive. Engaging an experienced estates and trusts attorney will protect the successor Trustee from liability by ensuring that they are properly advised as to their duties.
2. Review the Trust. Although it may seem obvious, one of the first things a successor Trustee should do is read the Trust, including all amendments. Think of the Trust document as the instruction manual from the grantor. The Trust will identify the beneficiaries, set forth the distribution instructions, direct how the assets are to be managed, and grant the Trustee the authority to act on behalf of the Trust. One of the first tasks of the successor Trustee is to update the Trust documentation to reflect that he or she is now the Trustee and to obtain a taxpayer identification number for the trust. The estate and trust attorney will assist with these tasks.
3. Notify interested parties. While each state will have specific requirements for notifying beneficiaries and/or interested parties, most states require that the Trustee provide notice to the Trust beneficiaries. In Massachusetts, trust law is governed by the Massachusetts Uniform Trust Code which requires the Trustee to send written notice to the beneficiaries within 30 days of the Trustee’s appointment. The notice must inform the beneficiaries that they are a beneficiary under the Trust and must provide the beneficiaries with the name and contact information for the Trustee.
4. Secure and inventory all Trust assets. Once authority to act as Trustee has been established via the successor Trustee documentation, the next job of the successor Trustee is to identify the Trust assets and obtain access to those assets. Trust assets may include bank accounts, investment accounts, real estate, and life insurance or other assets that name the Trust as the beneficiary. The Trustee will need to contact the financial institutions to update the Trust accounts with the new taxpayer identification number and to add themselves to the accounts. The successor Trustee should obtain date of death values for the Trust assets. This is important not only for the purpose of accounting to the Trust beneficiaries but for tax purposes. Date of death values can be obtained from the financial institutions with respect to bank accounts and investment accounts. For real estate, the Trustee will need to arrange for an appraisal of the property.
5. Identify time sensitive tasks. The successor Trustee should work with the trusts and estates Attorney to create a timeline of deadline driven tasks. These may include making sure the decedent’s required minimum distribution from his retirement account is made, filing personal income tax returns for the decedent, filing income tax returns for the trust, filing an estate tax return, if required. In addition, there may be ongoing expenses that need to be paid such as a monthly mortgage payment or car payment. It is important for the Trustee to understand their obligations to pay, or not to pay, debts of the decedent. There are also time frames for making distributions to the beneficiaries named in the trust. Missing these deadlines can result in penalties and interest for which the Trustee may be personally liable.
Most people feel that being named as Trustee is a great honor. It means that the trust maker had faith and confidence that you could perform the duties and responsibilities required by the job. Live up to those expectations by following the terms of the Trust and carrying out the trust maker’s instructions.
Attorney Sean M. Downing is an associate attorney with the Dedham, Massachusetts law 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.
December 2025
© 2025 Samuel, Sayward & Baler LLC
5 Reasons to Avoid Probate
People often come to us with a desire to create an estate plan that avoids probate, the court process of transferring assets from a deceased person to that person’s beneficiaries (the people named in the deceased person’s Will or the heirs at law if there is no Will). However, they don’t always know why that’s something they should want. Here are five reasons to avoid having your assets pass through probate.
- Probate Takes a Long Time
Under Massachusetts law, creditors have a whole year after someone dies to make a claim against that person’s estate. What this means is that probating someone’s estate takes at least a year to complete. Waiting for a year can be extremely difficult when there are dependents waiting on access to the deceased person’s financial assets or real estate.
The courts are also very busy with their dockets and are often quite slow at responding. This means that it may take a while to even appoint someone as Personal Representative (previously called Executor) of the estate. This can be particularly frustrating because the estate is unable to pay final costs, taxes, and lawyer fees until someone is appointed as Personal Representative and has access to the estate’s accounts.
2. Probate can be Expensive
Probates in Massachusetts are not particularly simple or intuitive. Most people will need to hire an attorney to help them navigate the process and fill out the forms correctly. What makes probate particularly expensive though is when the Personal Representative runs into any friction with the court. For instance, if the estate needs to sell real estate before the year is up, they may be able to do so if they petition the court, but this requires a lot of back-and-forth between the attorney and the court. If any of the beneficiaries of the estate push back on the Personal Representative’s actions, this can also create additional work, thus creating additional attorney’s fees.
3. Probates are Public
As part of the Probate process, the Personal Representative needs to tell the court the approximate value of the estate, including the value of any real estate, say who the beneficiaries are, and detail which assets each beneficiary is getting. The value of the estate, the beneficiaries’ identities, and the distribution of assets then become accessible to the public.
In movies and TV shows, this can reveal hidden affair children or dramatic disinheritances. For most people though, this is just an issue of privacy. Do you want everyone to know which charities/organizations you supported? Do you want everyone to know that you gave more money to your favored niece than to her siblings? Having privacy regarding these matters by using a Trust can lessen familial drama after you pass away.
4. Probates are More Easily Contestable
All legal documents can be contested in theory. However, Wills are particularly prone to being contested. Besides Wills being publicly accessible, all heirs at law are given notice of the probate at the beginning as part of the procedure. These two factors combine to create an environment where jilted beneficiaries are given the information and venue they need to contest.
Trusts, unlike Wills, are not publicly accessible and do not require notice to heirs at law. This makes it difficult for disgruntled family members to know the contents of the trust or how their treatment under the trust compares to other parties.
5. Probates Require Court Supervision
Probate is inherently a court process, and the judge is in their power to add extra supervision over a probate. The most common form of this is a Guardian Ad Litem, which is a person appointed by the court to act in the interest of a minor child or otherwise incapacitated person. Guardians Ad Litem must conduct interviews and make formal reports which can be slow and expensive. Courts can also demand bond be paid, searches for potential heirs at law be conducted, and accountings for the estate be completed, all of which add to the time and expense of probate.
What is Probate?
Attorney Sean Downing discusses What is Probate? on 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.