Estate Planning is important for anyone over the age of 18. College-age children should have Durable Powers of Attorney and health care documents that will allow someone to make financial and health care decisions for them, and have access to information if they are ill or incapacitated. Please watch and if you have any questions or want to learn more please call us at 781 461-1020.
Blog
Update on Credit Shelter Trusts
Attorney Maria Baler details a new position taken by the Massachusetts Department of Revenue on Credit Shelter Trusts regarding the inclusion of half of the value of a house funding the credit shelter trust of the first spouse to die in the taxable estate of the surviving spouse for Massachusetts estate tax purposes when the house was previously owned by both spouses. Please watch and if you have any questions or want to learn more please call us at 781 461-1020.
Smart Counsel Series – The Do’s and Don’ts of Serving as a Trustee – A Study in Contrasts
Please watch our pre-recorded webinar in our Smart Counsel Series which aired on Thursday, May 18, 2023 virtually via Zoom. Attorneys Suzanne R. Sayward and Megan L. Bartholomew presented the Do’s and Don’ts of serving as a Trustee.
If you have been named to serve as Trustee for a family member or friend, or if you have created a Trust in which you have named someone to serve in that role should you become incapacitated or when you pass away, you may be wondering what is involved in taking on such a commitment. The answer is – A LOT!
The presenters discussed the specific tasks a Trustee must undertake along with the general duties and responsibilities of a Trustee. Examples of the right way – and the wrong way – of carrying out the duties of serving as a Trustee can help you understand what is involved in serving in this important role.
How is Estate Planning Similar to Gardening?
It’s that time of year when gardeners are breaking out their trowels and sunhats, and perusing nurseries for plants to create their gardens for the summer. I love gardening and have spent that last couple of weekends planting seeds and seedlings of tomatoes, peppers, green onions, potatoes, kale, spinach, radishes, cabbage and Swiss chard. And I still have more to plant! While digging in the soil, it occurred to me that gardening and estate planning are similar in a few ways.
Last year, I planted several tomato plants on my deck and patio. Mid-way through the summer, the tomato plants on the deck were decimated by an infestation of spider mites. By the time I took action, it was too late to help the deck plants but luckily, I was able to save the tomatoes on the patio. Now I am more knowledgeable and better prepared to stop the pests in their tracks if I encounter the same problem this year. Creating an estate plan requires the same perspective. Your estate plan should be rooted in the present based on your finances, family and health, but prepared to address both expected and unexpected circumstances. In short, your estate plan should have a solid foundation and the flexibility to branch in several directions depending on the situation that arises.
I also planted yellow squash and zucchini for the first time last summer. The zucchini grew spectacularly; the yellow squash did not, despite fertilizer, more water, etc. I plan to plant yellow squash again this year, however, it will be a different variety and in another location with the hope that it will grow better. Similarly, you should adjust your estate plan regularly through the years. If you or your loved ones have major changes in health or finances, your estate plan may need to be updated. For example, if you name an adult child as your Personal Representative and she passes away, your Will should be updated to replace her and name a successor. Additionally, you may want to direct that her inheritance is distributed differently than what is in your current Will.
For years, I have planted basil and marigolds with my tomatoes. Besides the bright yellow, orange and red marigolds drawing attention to the cherry tomatoes hiding in the green foliage, the flowers also provide protection from several pests that can damage the tomato plants (except spider mites apparently). Beyond pest control, some plants provide beneficial nutrients to the soil for other plants. Like strategically growing certain types of plants together, it is important to consider the relationships of the individuals you appoint to manage your estate after your death. I often have clients ask if their adult children can serve together as fiduciaries (Personal Representatives, Trustees, Attorneys-in-Fact) when the real question is should they serve together. If one of your goals is to preserve a harmonious relationship between your adult children and minimize conflict that could cause estrangement for the rest of their lives, it may be better to name one at a time, depending on your particular circumstances and their dynamics.
These are just a few examples of how estate planning and gardening are similar. At Samuel, Sayward & Baler LLC, our knowledgeable attorneys will meet with you to thoughtfully assist with developing a foundational estate plan or adjusting your estate plan because of changes in your life. And after meeting, I will return to playing in my garden.
Attorney Abigail V. Poole is a senior associate attorney with the Dedham firm of Samuel, Sayward & Baler LLC which focuses on advising its clients in the areas of trust and estate planning, estate settlement and elder law matters. She is an active member and current President of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (NAELA). 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, 2023
© 2023 Samuel, Sayward & Baler LLC
5 Reasons to Engage an Elder Law Attorney
May is Elder Law Month and was established by the National Academy of Elder Law Attorneys (NAELA) as a way to bring attention to the particular legal needs of the older adult community. While all adults should create an estate plan to ensure that their wishes are carried out if they become incapacitated or when they pass away, the needs and concerns of older adults are different than those of younger people. Elder law attorneys are attuned to the issues that impact older adults and skilled at addressing those issues. Read on for five reasons why engaging an elder law attorney as you age is important.
1. A Durable Power of Attorney is a legal document in which the maker (the Principal), designates a person (the Attorney-in-fact) to have the authority to manage the Principal’s financial affairs. For estate planning purposes, a Durable Power of Attorney is created to insure that should the Principal become incapacitated, the Attorney-in-fact will have the legal authority to act on behalf of the Principal with respect to legal and financial affairs and non-medical matters. For many older adults, protecting assets from having to be spent down on long-term care costs is important. In order to ensure that their Attorney-in-fact has the authority to undertake long-term care planning, a Power of Attorney must specifically authorize actions that are typically needed to protect assets from spend down. These include granting the Attorney-in-fact the authority to make gifts of the Principal’s assets, create an irrevocable Trust, and so-called ‘self-dealing’ authority. Elder law attorneys are knowledgeable about the importance of these provisions for older adults.
2. Older adults often worry about protecting assets from the high cost of long-term care; something that is not a concern for younger people. Elder law attorneys can advise clients about their options for protecting assets from having to be spent down on long-term care costs along the with the advantages and consequences of such planning.
3. As they age, parents may feel more financially secure – the children are grown and living on their own, college is paid for, there is no longer a mortgage on the house – which may make them more inclined to make gifts to children and grandchildren. While most estate planning attorneys are skilled in advising clients about the tax aspects of gifting, elder law attorneys will also advise clients about the impact that gifting will have on their eligibility for long-term care benefits. This can avoid a serious ‘trap for the unwary’ in the event long-term care benefits are needed.
4. Long-term care insurance can be an excellent ‘tool’ in a person’s long-term care planning tool-box. While elder law attorneys do not sell long-term care insurance, they often work closely with individuals who are specialists in long-term care insurance. Elder law attorneys can advise clients as to how long-term care insurance would work as part of a long-term strategy for payment of care costs as the client ages.
5. Health Care documents consisting of Health Care Proxies, Living Wills and HIPAA Authorizations are important components of every estate plan. For seniors, making sure that their Health Care Proxy includes provisions permitting their appointed agent to make decisions regarding end-of-life care, administration of certain types of medications, and to contract for care givers or care facilities on behalf of the Principal is critical to ensuring that trusted family members, and not a probate court, are the ones making decisions in times of crisis.
Making sure that one’s affairs are in order is a primary goal of estate planning. For older adults, working with an elder law attorney means working with an attorney who is attuned to their particular legal needs. If you are an older adult, ‘celebrate’ Elder Law Month by contacting an elder law attorney to review your estate plan documents to ensure they are consistent with your current goals and concerns.
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, 2023
© 2023 Samuel, Sayward & Baler LLC
What’s New at Samuel, Sayward & Baler LLC – Don’t Miss Our April 2023 Newsletter
Don’t Miss Our April 2023 Newsletter
Attorney Suzanne Sayward discusses our current 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.
Smart Counsel Series – The Do’s and Don’ts of Serving as a Trustee – A Study in Contrasts
To our Clients and Friends:
Please join us for the next presentation in our Smart Counsel Series on Thursday, May 18, 2023, from 6:00 p.m. to 7:30 p.m. virtually via Zoom, hosted by Attorneys Suzanne R. Sayward and Megan L. Bartholomew who will be presenting on the Do’s and Don’ts of serving as a Trustee.
If you have been named to serve as Trustee for a family member or friend, or if you have created a Trust in which you have named someone to serve in that role should you become incapacitated or when you pass away, you may be wondering what is involved in taking on such a commitment. The answer is – A LOT!
Join us for this Smart Counsel presentation during which the presenters will discuss the specific tasks a Trustee must undertake along with the general duties and responsibilities of a Trustee. Examples of the right way – and the wrong way – of carrying out the duties of serving as a Trustee will help attendees understand what is involved in serving in this important role.
Contact Kenzie Sayward at 781/461-1020 or kenzie@ssbllc.com to reserve a spot for you and a friend.
Suzanne R. Sayward
Maria C. Baler
Abigail V. Poole
Megan L. Bartholomew
Updates to the Massachusetts Homestead Law
The Massachusetts homestead law protects a homeowner’s primary residence from forced sale by an unsecured creditor. What this means is that if you are sued and a creditor obtains a judgment against you, you cannot be forced to sell your home to pay the creditor unless the equity in your home is greater than the amount of your homestead protection. If the equity in your home is greater than the homestead protection, the home may be sold but the creditor will receive only what is left after you first receive proceeds equal to the amount of the homestead protection. The protection extends to the homeowner’s family which is defined as spouse and minor (under age 21) children.
How much is the homestead protection? Under the “new” homestead law enacted in 2011, a homeowner is entitled to automatic homestead protection of $125,000. However, 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 to $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.
In November of 2022, the Massachusetts legislature updated the homestead law to clarify a few of its provisions, notably:
- The 2011 homestead law allowed the holder of a life estate interest in real estate to have homestead protection, but not the holder(s) of the remainder interest in the property. The 2022 updates to the homestead law have made it clear that both the life estate holder and the remaindermen are entitled to homestead protection, provided the property is their primary residence.
- For all you co-op owners out there, the 2022 updates also made it clear that a lessee-shareholder of a residential cooperative housing unit is entitled to homestead protection.
If you are the owner of a home in which another person has a life estate, you are now entitled to Homestead protection. Both the life estate holder and the remaindermen should file a declaration of homestead at the Registry of Deeds to ensure the entire property is protected from creditors’ claims. Similarly, co-op owners should now file for homestead protection.
Keep in mind that a Declaration of Homestead will not protect you from all types of liability that may impact your home. It will not protect the home from a Medicaid/MassHealth lien for benefits paid on behalf of the homeowner, including benefits paid for nursing home care. A Homestead will not protect against governmental liens such as tax liens. A Declaration of Homestead will not prevent your mortgage lender from foreclosing if you do not pay your mortgage.
Interestingly, the homestead law protects the proceeds from the sale of a home for up to one year following the sale, and insurance proceeds received as a result of a fire or other casualty from the reach of creditors for a period of two years.
Keep in mind that if you filed a Declaration of Homestead and then refinanced your mortgage after your Homestead was filed and before March 16, 2011, your mortgage transaction may have voided your homestead protection. However, beginning March 16, 2011, a mortgage transaction does not impact your homestead protection even when the homeowner signs a mortgage that includes a waiver of homestead provision. The waiver of homestead provision in the mortgage relates only to the mortgage itself (which the homestead does not protect against anyway).
If you have questions about homestead protection, please feel free to give us a call, or get the advice of an experienced real estate or estate planning attorney. And if you have not filed a Declaration of Homestead on your home, make sure you do so!
Maria C. 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 a 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.
April 2023
© 2023 Samuel, Sayward & Baler LLC
Five Ways to Make It Easier For Your Family After You Pass Away
I often hear clients say they want to make it as easy as possible for their loved ones to handle their estate after they pass away for a wide variety of reasons. In particular, they want to minimize the hassle and time spent by their family members in dealing with “the business of death”. Here are a few ways that you can make it simpler and faster for your family members and friends to take care of settling your estate.
1. Create and Fund a Trust
A tried-and-true method to make it easier for your loved ones to access and settle your estate after your death is to create and fund a Trust. By creating a Revocable Living Trust and transferring assets into it during your lifetime, you can avoid the time-consuming, public, and costly process of probate. This means your family members will be able to administer and distribute your estate in a more timely manner.
2. Prepare Written Burial and Funeral Wishes
To streamline the process after your death, there are two things that you can do. First, you may memorialize your burial or cremation wishes and funeral instructions in writing. A Directive as to Remains accomplishes this goal and is tailored to fit your wishes. Second, you may arrange services now by completing a prepaid funeral plan with a reputable funeral home.
3. Ensure You Have Beneficiaries Designated
It is important to designate appropriate beneficiaries on your life insurance policies and retirement accounts. That means confirming you have a primary beneficiary and a contingent (back-up) beneficiary designated on those assets. If you don’t, it may be necessary for your family members to go through probate after your death to gain access to those assets.
4. Share Where to Find Important Information
We generally suggest that you store the physical copies of your estate plan documents in a secure but accessible location for safekeeping. You should tell a select few family members and/or friends the location so they may find that important information right away after your death. As part of your estate plan, you should also create and maintain a paper or electronic list of all the financial accounts, email accounts, social media accounts, and other accounts you access online along with their associated usernames and passwords. Your fiduciary (Personal Representative, Trustee) will need that information to manage and close the accounts.
5. Share Your Estate Planning Attorney’s Contact Information
If nothing else, make sure to tell your family members that you have an estate plan in place and provide your estate planning attorney’s contact information. I often suggest that contact information is shared via email so that when they are searching for it (hopefully) many years in the future, it is still electronically saved.
Those are just a few of the steps you can take now to make it easier for your loved ones to settle your estate after your death. At Samuel, Sayward and Baler, LLC, an experienced attorney can guide you through other ways to leave your family members and friends clear directions regarding your wishes and make it simpler and faster for them to manage your estate after you pass away.
Attorney Abigail V. Poole is a senior 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. She is an active member and President of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (NAELA). 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.
April, 2023
© 2023 Samuel, Sayward & Baler LLC
Don’t Get Fooled by Estate Planning Pitfalls this April Fool’s Day!
With April Fool’s Day fast approaching, keep an eye out for increased attempts to trick you into giving up information or assets; these tricksters exist even in the world of estate planning! The rise of scams, “do it yourself” templates, and the sharing of well-meaning but uneducated advice can fool individuals into paying fraudulent companies unnecessarily or creating estate plans that are ineffective and do not accomplish their goals. Read on for some tips to avoid getting tricked in the world of estate planning this April Fool’s Day!
Neighborly Advice:
Neighbors are often eager to share their opinion on estate plans and what they think you should do without knowing your situation and your needs. Some will even claim they were able to create their plan themselves and that you do not actually need an estate planning attorney to help you. Watch out for this seemingly well-meaning advice and don’t get fooled into thinking what someone else did for themselves will work for you!
There is no effective “cookie cutter” estate plan. Your estate plan should be tailored to your circumstances and assets, account for the various unique factors in your life, as well as take into account your goals in order to work most effectively. Keep in mind that many “do it yourself” estate plan templates fail to account for changing circumstances or events and often become problematic or ineffective as a result. Working with an estate planning attorney is key to ensure your documents account for various circumstances that may arise and therefore remain effective as circumstances change. In addition, working with an attorney gives you the opportunity to ask questions and tailor your plan specifically to your goals.
Deed Scams:
Deeds and mortgages are public information and are published and accessible to all on the Registry of Deeds website for each Massachusetts county. Unfortunately, as a result, there are companies who will try to use this information to exploit unsuspecting individuals. These companies will copy your name and address from the public records and then send you a document claiming you need to pay them a significant amount of money in order to get a copy of your deed. This document often looks official and uses intimidating language to convince you to pay them right then and there. Don’t let these scammers fool you! Your deed is public record, and you can obtain a copy online through the Registry of Deeds for your county for no to nominal cost. Don’t be fooled into paying these companies for your deed when you can access it yourself online!
Estate Plan Timing:
You may hear the Irrevocable Trust and Medicaid informercials on the radio and assume that estate planning is a necessity reserved for the sick or elderly. Don’t get fooled into thinking that because you are young and healthy right now that you do not need an estate plan! There are plenty of circumstances we cannot predict that can impact us at any age, including getting sick, suffering an accident, or passing away unexpectedly. Having an estate plan in place is key for knowing what will happen should these unexpected circumstances occur and ensuring that your wishes will be followed.
Estate Plan is One-and-Done:
Once you have finished executing your estate plan, it can be tempting to set it up on the shelf and forget about it. Don’t get fooled into thinking your estate plan doesn’t change! An effective estate plan should address circumstances that can arise, but sometimes things happen that are unanticipated, laws change, and plans need to be updated as a result to reflect changes in your life, circumstances, and goals.
April Fool’s Day can be a time of laughter, fun, and pranks! However, the tricksters and scammers often also start coming out of the woodwork around this time of year and attempt to capitalize on the complicated world that is estate planning. The best way to avoid getting tricked and making sure your estate plan is effective is to consult with an experienced estate planning attorney.
Attorney Megan L. Bartholomew is an associate attorney 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. 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.
March, 2023
© 2023 Samuel, Sayward & Baler LLC