Attorney Suzanne Sayward

Five Life Events That Merit a Review and Update of your Estate Plan

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Creating an estate plan (Will, Trust, Power of Attorney, etc.) is a key step in making sure that your wishes are carried out and that your family is taken care of in the way you wish when you pass away.  But an estate plan is not a ‘one-and-done’ proposition.  Life happens and when it does…well, it may be time to adjust your plan.  

Read on for five situations that call for a review and update of your estate plan. 

  1. Your marital status changes.  In Massachusetts, a change in your marital status impacts your current estate plan (even if you haven’t created an estate plan!).  Marriage confers certain rights, including the right of spouses to inherit from each other. How much of your estate your spouse is entitled to inherit depends on whether you have children together, whether either of you has children from a prior relationship, or whether neither of you has any children.  Regardless of your situation, most people prefer to decide for themselves what their new spouse will inherit rather than have the government make that decision.  Similarly, divorce impacts your estate plan in that your former spouse is effectively ‘deleted’ as a beneficiary under your Will and removed from fiduciary positions.  While this is usually the desired outcome as to a former spouse, the law also removes any of your former spouse’s relatives as beneficiaries and from fiduciary positions which may not necessarily be the intention.  For example, a former spouse’s sibling may still be the person you would name as the guardian for your minor children.  Further, although the law may “remove” these individuals from your plan, you should update your plan to include appropriate people in their place as beneficiaries and fiduciaries.
  2. You have a child.  The law in Massachusetts provides that if a person dies with a child surviving (or more remote descendants in cases where a child has predeceased the parent) the child will inherit from the parent before assets would pass to anyone else (other than a surviving spouse who is first in line to inherit).  However, the law also deems that adult-hood is reached at age 18.  That means children who inherit from parents who have not created an estate plan that provides otherwise, will be entitled to receive the full amount of their inheritance at age 18.  Prior to reaching age 18, a child’s inheritance will be managed for her by a court-appointed conservator if the parents have not created a Trust to manage their estate for their children.  Most parents: 1) would prefer to decide who should be in charge of managing assets for their children rather than have the probate court make that decision; and, 2) do not want their children to have full, unfettered access to the inheritance they leave them at age 18.  Creating a Trust that designates the people who will manage assets for their children at their deaths and specifies the ages, or events, at which a child will be entitled to full access to their inheritance allows the parents make these decisions rather than the Commonwealth of Massachusetts.
  3. You or your spouse are diagnosed with a serious illness.   While having a child and getting married (and for some, getting divorced) are joyous life events that merit a review and update of an estate plan, not all life events are good.  If either you or your spouse is diagnosed with a terminal illness, or with a serious disease or condition such as Alzheimer’s, Parkinson’s, or dementia, that could result in the need for long-term care, reviewing and updating your estate plan is not just important but often urgent.  There may be actions needed to reduce taxes or to preserve assets from being consumed by expensive long-term care costs that should be implemented right away.  In addition, it is important to make sure there is documentation in place such as a robust durable Power of Attorney and a comprehensive, up-to-date Health Care Proxy so that you are able to make decisions for a spouse who may lose the ability to do so as a result of the illness.  These documents need to be created while the maker still has the capacity to do so.
  4. Your spouse passes away.  Reviewing and updating your estate plan when a spouse passes away is a prudent action to take.
    People usually name their spouse to the primary fiduciary roles of Personal Representative, Attorney-in-fact, Health Care Agent, and Trustee.  While there is often a back-up named to those roles, reviewing your estate plan to re-visit whether that designated alternate is still the right person to serve and updating your plan to designate a successor to your new primary fiduciary is a smart thing to do.
  5. One of your fiduciaries or beneficiaries dies or becomes ill.  When someone you designated as a fiduciary in your estate plan passes away or becomes ill such that they would no longer be able to carry out those duties, it is time to update your estate plan.  Similarly, when a beneficiary dies or becomes ill, a review of the provisions of your estate plan as they relate to that person is sensible.  Your estate plan most likely includes a provision directing what should happen to the share of a beneficiary who predeceases you.  However, it has been my experience that clients’ thinking often changes when one of their beneficiaries predeceases them and they want to update their plan to change their distribution provisions.  Similarly, if a beneficiary of your plan is diagnosed with a disease or condition such as Alzheimer’s or dementia, meet with your estate planning attorney to consider whether leaving money to that person is still a good idea.  Many individuals who need long-term care are eligible for needs-based governmental benefits to pay for that care.  Receiving an inheritance can cause them to lose that eligibility.

Above are just five of the life events that merit a review and update of an estate plan.  Other changes such a significant increase in the value of your estate, relocation to another state, a disability affecting one of your beneficiaries, or even the passage of more than five or six years since your last estate plan review, are additional examples of life events that merit a review of your plan.  If any of the above situations applies to you, don’t wait to contact your estate planning attorney to schedule a time to review and update your plan.  If you have never created an estate plan, now’s a good time to do so.  If we can help you create or update your estate plan, please contact our office to schedule a time to meet with one of our experienced estate planning attorneys. 

Attorney Suzanne R. Sayward is a partner with the Dedham law firm of Samuel, Sayward & Baler LLC which focuses on advising its clients in the areas of estate planning, elder law, estate and trust settlement and probate. She is certified as an Elder Law Attorney by the National Elder Law Foundation, a private organization whose standards for certification are not regulated by the Commonwealth of Massachusetts.  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 our website at www.ssbllc.com or call 781/461-1020.

September, 2022

© 2022 Samuel, Sayward & Baler LLC

Trustee, Beneficiary, Grantor, and more – What do they all mean?

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As in most professions, lawyers speak their own language that is often meaningless to non-lawyers (think, ‘tort’, ‘habeas corpus’ and ‘nunc pro tunc’). Even worse, within the broad category of the law, there are the specialized areas (personal injury, criminal defense, patent law), each of which also has its own lingo. Estate planning attorneys are no different. We use terms such as ‘Personal Representative’, ‘Attorney-in-fact’, and ‘Trustee’ when speaking with our clients without always taking the time to fully explain what those terms mean.

Here’s a primer on some of the more common terms associated with Revocable Living Trusts.

A Trust is an agreement among three parties in which one party entrusts a second party with assets that are to be managed for a third party. A Living Trust is a Trust created by someone during their lifetime and which can be funded with assets during lifetime. The person who creates a Revocable Trust reserves the right to modify the Trust terms at any time and retains access to the Trust assets. While there is such a thing as an oral trust, most Trusts are in writing. A well-written Trust will clearly define the rights and responsibilities of each of the parties to the Trust.

The person who creates a Trust may be called the Grantor, the Donor, the Settlor, the Trustor or even the Trust Maker. This is the person who is entrusting his or her assets to the other party.

The Trustee is the person to whom the assets are entrusted and who accepts the assets and agrees to hold and manage them for the benefit of a third party upon the terms and conditions set out in the Trust. A Trustee is a fiduciary which means that the Trustee owes the highest duty of good faith and fair dealing to the beneficiary.

The Beneficiary is the person for whom the entrusted assets are being held and managed. The benefits which the Beneficiary is entitled to received will be determined by the person who creates the Trust (i.e., the Grantor) and stated in the Trust document. For example, a Grantor may decide that a beneficiary is entitled to receive only the income generated by the assets in the Trust during the beneficiary’s lifetime, and that the Trust assets will be distributed to a different person (the remainder beneficiary) upon the death of the income beneficiary. A Trust may state that a beneficiary is entitled to receive some or all of the principal held by the Trustee at certain times (i.e., when the beneficiary turns 25) or upon the happening of a certain event (i.e., the beneficiary graduates from college). Sometimes a Grantor will grant the Trustee complete discretion to decide if and when and for what reasons distributions may be made to a beneficiary.

Who typically serves in these roles? Well, it is quite common when creating a basic estate planning Trust (a Revocable Living Trust), that the roles of the Grantor, Trustee and Beneficiary are the same person upon the initial creation of the Trust.

Here’s an example of the parties to a typical Revocable Living Trust. Mary Jones creates a Trust she calls the Mary Jones Trust and names herself as the Trustee. During Mary’s lifetime, the Trust assets may be used only for Mary’s benefit. Mary is the Grantor, Trustee and Beneficiary. In her Trust document, Mary names her sister Lily as the successor Trustee.

When Mary become incapacitated, Lily steps into her shoes as Trustee. During Mary’s incapacity, Lily as Trustee, will manage the Trust assets for Mary who is still the beneficiary.

Mary’s Trust states that when she passes away, her children Allison and Barry are the Beneficiaries. Mary is still the grantor of the Trust even when she dies. After Mary’s death, Lily continues to serve as the Trustee for Allison and Barry as Beneficiaries and manages the Trust assets for them in accordance with the instructions in Mary’s Trust.

Don’t let unfamiliar terminology scare you away from creating the plan that is right for you and your family. Consult with an experienced estate planning attorney who will explain complex concepts and specialized terms in an understandable manner, and help you create a plan that reflects your wishes.

If you have questions about creating a Trust or serving as Trustee, please contact us to schedule an appointment with one of our firm’s attorneys.

Attorney Suzanne R. Sayward is a partner with the Dedham firm of Samuel, Sayward & Baler LLC which focuses on advising its clients in the areas of estate planning, estate and trust administration, probate, and elder law matters. She is certified as an Elder Law Attorney by the National Elder Law Foundation, a private organization whose standards for certification are not regulated by the Commonwealth of Massachusetts. This article is not intended to provide legal advice or create or imply an attorney-client relationship. No information contained herein is a substitute for a personal consultation with an attorney. For more information visit www.ssbllc.com or call 781/461-1020.
July, 2022
© 2022 Samuel, Sayward & Baler LLC

Estate Planning and Elder Law 101

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Estate Planning Lawyer - Weston Ma presenation

Attorney Suzanne Sayward spoke on June 17th 2022 at the Westin Council of Aging on Estate Planning 101. She began the presentation with common estate planning documents that are important for people to know about which included: Wills, Powers of Attorney, Health Care proxies, Living Wills, HIPAA Authorizations, Trusts, Deeds with Life Estates and Declaration of Homestead.

She continued on with pertinent issues for those who already have an estate. Those included Avoiding Probate, Why not Joint ownership?, How to pay for long-term care, Eligibility for long-term Medicaid, What if no pre-planning has been done and long-term care is needed?, Life Estate Deeds, Avoiding Probate, Revocable Living Trusts, Estate Taxes and how to reduce them, What’s in a Taxable Estate, and Gift Taxes.

Click here to watch the video

Suzanne Sayward is a partner with the Dedham Massachusetts law firm of Samuel, Sayward and Baler LLC where she concentrates her practice in the areas of estate planning, estate and trust administration, elder law, and probate. She is a certified as a Elder Law Attorney (CELA) by the National Elder Law Foundation.* Attorney Sayward is a member of the Massachusetts Chapter of the National Academy of Elder Law Attorneys where she served on the Board of Directors for many years and as the Chapter’s President in 2009. 

Attorney Sayward was named to Boston Magazine’s annual list of “Massachusetts Super Lawyers” for the years 2010 through 2022.

 

Top 5 Reasons to Create an Estate Plan During National Elder Law Month

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Welcome to May!  Not only is it the month of flowering trees, flowering shrubs, and well, flowering flowers, it is also National Elder Law Month.  Elder law attorneys advise clients about a variety of issues, one of which is estate planning.  However, estate planning is not just for older adults.  As an estate planner and elder law attorney, I can cite a number of reasons why everyone over the age of 18 should have an estate plan.  But what motivates most people to pick up the phone and make an appointment with an attorney to create their Will?  I conducted a very un-scientific study of why clients decide to create or update their estate plan.   

Here are the top five reasons that people decide to create or update their estate plan – in descending order. 

5. They want to provide instructions for end-of-life care.  Many people feel strongly about how they want to be cared for at the end of their lives.  So long as someone is healthy enough to articulate instructions for their own care, they may direct the course of their care.  But if a person is unwell and unable to articulate those instructions, then the only way their wishes can be carried out is if they have provided advance instructions about the care they wish to receive and appointed someone who has the legal authority to implement those instructions.  

4. They want their estate to avoid probate.  Probate avoidance is one of the primary reasons that people create an estate plan and rightfully so. Probate is the process of changing the title on assets when someone passes away from the deceased person’s name to the name of the legal representative for the estate.  Probate is costly, it is a public proceeding, it invites contests and it takes a long time.  Luckily, avoiding probate is fairly easy.  Only assets that are in a person’s individual name at the time of death and that do not have a joint owner or beneficiary designated to receive them need to be probated.  Owning assets jointly with another person (when appropriate), making sure there are beneficiaries designated on assets such as IRAs, 401Ks, annuities, and life insurance, and creating and funding a Living Trust, are all ways to avoid probate. 

3. They want to reduce or eliminate estate taxes.   The estate tax is a tax imposed on the value of assets an individual owns (or is deemed to own) at death.  There is both a federal estate tax and a Massachusetts estate tax. The good news is that federal law gives each person a $12 million exemption from federal estate tax.  As such, there are very few people who need to pay federal estate tax. The bad news is that Massachusetts grants its citizens only a $1 million freebie from estate tax.  For many residents of Massachusetts who own a home, have a retirement account, and own life insurance, this $1 million threshold is quickly reached.  Undertaking planning to reduce or eliminate the estate tax that their families will pay from their estates at death is a goal for many whose estate will subject to the estate tax. 

2. They want to protect their assets from having to be spent down on long-term care costs.  Many clients tell us they are concerned about the cost of long-term care and worried that those costs will consume all of their assets.  Given the very high cost of long-term care, whether delivered at home or in a skilled nursing facility, these concerns are warranted.  Learning about the options for planning to protect assets from needing to be spent down on long-term care well in advance of needing such care is vital to the success of achieving this goal.  Learning the pros and cons of such planning, and why for some it may not be necessary, are also important.  Long-term care planning is very specific to each individual, and is an area in which it is especially important for each client to get advice about their own particular circumstances.

1. They want to provide for and protect their loved ones.  The number one concern that clients have is for their families.  Whether it’s parents with young children, older folks with grown children, a married couple with no children, or the favorite auntie or uncle, they all want to make sure their loved ones are taken care of when they are no longer around to do so.  This means different things at different stages of life.  For parents of young children, it means naming guardians for those children and ensuring there are resources available to raise them.  For those with adult beneficiaries, it may mean setting up their plan to provide creditor protection for the inheritance they leave to children or nieces and nephews.  And for older couples, making sure that the survivor of them is left in the best possible circumstances upon the death of the first spouse is of paramount concern.

There are many reasons people make the decision to create or update their estate plan on a given day.  Sometimes it’s circumstantial, such as the death of a loved one or a medical diagnosis.  But underneath those circumstances is a desire to ‘get one’s house in order’.  If we can help you with your estate or long-term care planning, please contact us to schedule a time to speak with one of our experienced estate planning and elder law attorneys. 

Attorney Suzanne R. Sayward is a partner with the Dedham law firm of Samuel, Sayward & Baler LLC which focuses on advising its clients in the areas of estate planning, estate settlement and elder law matters. She is certified as an Elder Law Attorney by the National Elder Law Foundation, a private organization whose standards for certification are not regulated by the Commonwealth of Massachusetts.  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 our website at www.ssbllc.com or call 781/461-1020.

May, 2022

© 2022 Samuel, Sayward & Baler LLC

Demystifying the use of Irrevocable Trusts for Long Term Care Planning

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To our Clients and Friends:

 

Please join us for the next presentation in our Smart Counsel Series on Thursday, May 19, 2022, from 6:00 pm to 7:30 pm in person* at our office at 858 Washington Street, Suite 202, Dedham, Massachusetts OR virtually via Zoom. 

If you have ever wondered whether an Irrevocable Trust for long-term care planning is right for you, join us for this program, Demystifying Irrevocable Trusts for Long-term care Planning. 

Attorneys Suzanne Sayward and Frank Mulé will discuss the advantages and disadvantages of using an Irrevocable Trust to protect assets from having to be spent-down on long-term care costs.   Attendees (both in person and virtual) will have an opportunity to ask questions.

For those who attend in person, we’ll have wine, cheese and other light refreshments.  For those who attend virtually, you’re on your own for snacks! 

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 space is limited if you would like to attend in person, so don’t delay!

Suzanne R. Sayward

Maria C. Baler

Abigail Poole  

Frank Mulé

Megan Bartholomew

 

* Subject to change. If rising COVID cases mean that we have to cancel our in person presentation, registrants will be able to attend virtually.

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

©2022 Samuel, Sayward & Baler LLP. All Rights Reserved. The information presented on this website should not be construed to provide legal advice, nor does it constitute the formation of an attorney/client relationship. Read the disclaimer.