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5 Ways Having Children Changes Your Estate Plan (and Your Life)

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After four months of precious bonding time with my new baby, I’m back at the firm and have returned to my fulfilling career as an estate planning and probate attorney. Having a second child changed my life just as much as having my first child changed my life. Before having each child, as an estate planning attorney I thought I had everything figured out: who the guardians of my children would be, how I wanted my assets distributed to my children should I no longer be around… but, of course, plans change when you have children, and it is important to recognize how such plans—including an estate plan—can change after having children. 

If you recently had a child or you already have children, it is important to include them in your estate plan. Estate planning plays a pivotal role in ensuring that your children are provided for in the event of unexpected circumstances. 

If you have already included your children in your estate plan, it is just as important to review and update your estate plan as your children get older because the plan you made five or ten years ago may not reflect your wishes now. This is especially true if your child is now an adult or if your child has developed a disability and is receiving needs-based government benefits.

 

Here are five ways having children affects your estate plan:

1.Naming a Guardian for Your Child

It is imperative that you name a guardian for your child in the event that you and the other parent die or become incapacitated. A guardian is someone who will take legal responsibility for your child’s physical well-being. A guardian has the authority to make all decisions regarding the care of your minor or incapacitated child, including healthcare decisions, residence, education, and religious upbringing.

You typically name a guardian in your Last Will and Testament to have custody of your minor or incapacitated child. Upon your death and the death of the other parent, the guardian you named will need to go through the court process to confirm their guardianship. The court will evaluate whether the proposed guardian is suitable and whether it is in the child’s best interest to be in the guardian’s care.

Once you name a guardian for your child, you should review your estate plan periodically to determine whether the guardian you picked is still a good fit. Who you thought you wanted to be the guardian of your child may change as your child gets older. Have you moved a significant distance away from the guardian you named? Has the guardian spent time with your child and developed a good, stable relationship with them? The answers to these questions may prompt you to change the guardian you chose.

2. Creating a Parental Appointment of Temporary Agent

Now that you have named a guardian, you should create another estate planning document called a Parental Appointment of Temporary Agent, or PATA for short. 

I’ve mentioned that a guardian named in your Will must go through a court process to be appointed, and that this court process can take a long period of time. What happens during this time that your guardian is waiting to be appointed by a court? Or what happens if you are in the hospital or otherwise incapacitated? Who takes care of your child and makes decisions for them? 

Massachusetts law allows parents of a minor or incapacitated child to designate through a PATA a temporary agent to take care of the child for up to 60 days. This temporary agent has the power that the parent had regarding care, custody, or property of the minor or incapacitated child until a permanent guardian or conservator is appointed by the court. 

Keep in mind that you and the other parent must appoint a temporary agent together unless the other parent consents to the appointment in writing or the other parent’s parental rights have been terminated. Also, keep in mind that like the guardian you named in your Will, you should review your estate plan as circumstances change and your children get older to determine whether the temporary agent is still a good fit.

3. Providing for Your Child in Your Estate Plan

Having a comprehensive Will is the cornerstone of any estate plan, especially for young parents and families. As I mentioned earlier, you can designate a guardian for your minor or incapacitated child in your Will. Your Will also specifies how your assets will be distributed to your child; however, it is important to note that your Personal Representative cannot distribute funds over $5,000 directly to a minor child.

In Massachusetts and many other states, minors under the age of 18 cannot assume control of property given directly to them through an inheritance. If you leave money or assets to your minor child through your Will and you do not specify how those assets are handled, then a conservator will need to be appointed by a court to manage the funds.

This can be avoided by establishing a trust for your minor or incapacitated child. A trust can manage and protect your child’s inheritance and be tailored to your preferences, specifying when and how your child will receive assets. You can also name a Trustee to manage the trust assets on behalf of your child. The Trustee may be a family member or friend, professional fiduciary (attorney or accountant), or corporate fiduciary (such as a bank).

Trusts aren’t only for minor or incapacitated children. You can create a trust for an adult child at your death to manage the child’s inheritance for a period of time, such as until the child turns 30 years of age, or for a child’s lifetime through a so-called “lifetime trust share.” A lifetime trust share helps protect a child’s inheritance from their creditors, such as a divorcing spouse or someone who initiates a lawsuit against your child. Although the protection offered by a lifetime trust share is impacted by the identity of the Trustee, the way the Trust is administered, and the state in which the beneficiary resides, these shares are a great tool to increase the protection of inherited assets in the event of divorce or from potential creditors.

4. Needing a Supplemental Needs Trust for a Disabled Child

While on the topic of trusts, if your child becomes diagnosed with a significant health issue or disability, you should consider whether you need to have a special type of trust called a Supplemental Needs Trust as part of your estate plan. A Supplemental Needs Trust (“SNT”) provides long-term management of the inheritance you leave to a disabled child while allowing the child to qualify for needs-based government benefits should such benefits become necessary for them in the future. SNTs can pay for and supplement medical and travel expenses, entertainment, pet care, and other expenses that can enhance an incapacitated person’s quality of life, especially when parents or grandparents are no longer around. 

5. Considerations As Your Child Becomes an Adult

Soon enough, and all too quickly, your child will grow up and become an adult. When that happens, there are different considerations for your estate plan than when your child was a minor. You may consider naming your child in a fiduciary role, such as your attorney-in-fact under your Durable Power of Attorney, your healthcare agent under your Health Care Proxy, or even the Trustee of your trust or a trust you create for your child after your death. Although a child who is a beneficiary of a SNT cannot be their own Trustee, your adult child can be the Trustee or Co-Trustee of their own separate trust share if you believe your child is mature enough to do so.

On the other hand, what if your child is not mature enough to handle their own Trust? Is your child on the brink of a messy divorce, or does your child spend every dollar they make the minute they receive it? You can name someone else to handle the inheritance you leave to your child or otherwise specify exactly how you want your child’s inheritance handled after your death.

There are numerous other considerations as well, such as whether you would like to provide for a grandchild in your Will or Trust or whether your child has moved far from home and retaining the house after your death is no longer be feasible. 

These are tough decisions that require thoughtful consideration and planning. As you have children and your family grows, the last thing you want to think about is what happens to your child if you are no longer around. Unfortunately, life is unpredictable, and taking proactive steps now will provide peace of mind knowing that you have taken care of your child’s well-being, no matter what the future holds. Estate planning is crucial in securing your child’s future and addressing the unique needs of your family, particularly as those needs change over the course of you and your child’s lifetimes.

Attorney Brittany Hinojosa Citron is a senior associate attorney with the 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. 

July 2025

© 2025 Samuel, Sayward & Baler LLC

Attorney Suzanne Sayward’s Smart Counsel interview with Steve Pepe from Longbridge Financial, LLC.

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This week we feature Attorney Suzanne Sayward’s Smart Counsel interview with Steve Pepe from Longbridge Financial, LLC. Sue and Steve discuss Reverse Mortgages and how you might use one to help you in your planning. We appreciate Steve taking the time to share his experience and knowledge with us.

Longbridge Financial, LLC is a leading lender devoted to responsibly advising retired homeowners in reshaping their retirement plans by educating them on Home Equity Conversion Mortgages (HECM) — and assisting them in unlocking the strength of their home.

Learn more: https://agents.longbridge-financial.com/steve-pepe/

LGBTQ Concerns for Estate Planning

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Happy Pride Month!

Estate planning clients who are part of the LGBTQ community often face unique considerations when making their estate plans. In honor of pride month, here is a quick dive into some of these issues.

People in the queer community are more likely to want to disinherit family members, and these kinds of disinheritances can be done via a Will and/or a Trust. When you pass away without an estate plan, your assets pass according to a system called “intestacy” to your next of kin. Massachusetts’ intestacy law provides that some of your assets will pass to your parents, even if you are married, so long as you do not have children. It’s very common for queer people to not have children and want to disinherit their parents. An estate plan is needed to get this result. 

On a similar note, many queer people, including those in long-term relationships, will choose not to marry at all. In order to provide for your partner in case of your death, an estate plan will need to be set in place. It’s also important to include your partner on your “incapacity” documents like powers of attorney and health care proxies. This will allow your partner to be the primary legal, financial, and medical decision-maker for you when you are incapacitated, instead of allowing the Court to appoint a decision-maker for you.

Married queer couples can benefit from estate planning too, of course, including estate tax planning which is important in a state like Massachusetts which imposes a separate state estate tax. Although same-sex marriages are currently protected under Massachusetts and federal law, it’s a good idea to include language in your estate plan that considers what would happen if your marriage is no longer considered valid. Such language can affirm that you wish for the documents to consider you a married couple, regardless of the state of the law on same-sex marriage. 

Trans people also have a few unique considerations. Although you may go by a different name in your day-to-day life, your estate planning documents must include your present legal name to be valid. You can, however, include an “aka” after your legal name and list your preferred name. Alternatively, you can seek a legal name change with the court before creating your estate plan. You can also include language in your documents to ensure gender-affirming care when your named fiduciaries are acting on your behalf. A health care proxy can direct your agent to seek care that respects your pronouns and current gender-affirming care. If you wish to be buried upon death, you can include specific instruction in a Declaration as to Remains concerning the outfit, makeup, and hairstyle you wish your body to have.

Finally, a point regarding same-sex married couples who have children. When a child is born to a married couple, both spouses are presumed to be the child’s parents, regardless of the spouses’ genders. However, this legal presumption is not as strong or universally recognized as a legal determination of parentage. In places where same-sex marriage is not recognized, this legal presumption will also not be recognized. A work-around for this is something called a confirmatory adoption whereby the two parents adopt their own child. An adoption creates a one-to-one parent-to-child legal relationship that is recognized throughout the world and thus adds an additional protection. Many male same-sex couples will do an adoption as part of their surrogacy agreement, so confirmatory adoptions are most often used by female same-sex couples where one of the mothers carried the child herself.

I hope to see some of you at the Boston Pride for the People Festival and Parade this Saturday! https://www.bostonprideforthepeople.org/

Attorney Sean M. Downing is an 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. 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.

Five Estate Planning Topics for Sunny Summer Days

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Summer is one of the most beloved seasons here in New England.  We wait for it all winter, eagerly anticipating its arrival through the wet and cool spring months, and lament its short-lived existence.  But precisely for these reasons we appreciate our summers here in New England more than those who live in other parts of the country who have warmth and sunshine for many more months of the year.  Here are five things to think about as you are enjoying these fleeting summer days.

1. Planning for Children Leaving for College

For all you parents with graduating seniors, a friendly reminder that once your child turns 18 they are considered an adult in the eyes of the law. This means that, as a parent, you no longer have the legal authority to make decisions on your child’s behalf or to access their medical or educational information without permission. If you want to be able to assist your child with financial and medical decisions, or make those decisions for them if they are unable, and want to speak with your child’s health care providers and school, your child should speak with an attorney and have a few key documents prepared and signed before they go away to college.

A Durable Power of Attorney will give one or both parents the legal authority to act on a child’s behalf to handle their legal and financial matters, such as banking snafus, credit cards, student loans and tax issues.  A Health Care Proxy will designate a parent to make health care decisions for a child in the event they have a serious health issue and are unable to make their own health care decisions.  Without these documents, court authority may be required to make legal, financial or health care decisions for your child.

Two lesser known but still important documents are a HIPPA Authorization which permits a child’s health care providers to speak with the child’s parents (or any other individual identified on the HIPAA form) about the child’s medical condition even if the child is still able to make their own health care decisions. This can come in handy if your child is in the school infirmary for a minor medical issue or is hospitalized with a more serious condition and you are looking for information.  A FERPA Authorization permits the release of your child’s protected academic and financial information by their college or university to the people listed in the document, which may include, for example, information about courses, financial aid, tuition, and disciplinary matters.

2. Planning for the Family Vacation Home

Vacation homes are special assets that require special planning considerations.  Important things to think about include: 

  • Who will receive the property?  Do all of your children use the property, or want to support the property financially as an owner after your death?  Involve your children in the decision-making process now and encourage them to be honest about their feelings about inheriting the property.  Your children may recognize that because of where they live or because of their personal financial circumstances, ownership of the property is just not realistic.  Knowing who wants to keep the property and who has no interest in owning a second home is vital information in the planning process and will make the plans you make more likely to work.
  • Who will pay for maintaining the home?  It costs money to maintain a vacation home, including paying taxes, insurance, utilities and repairs – and not all inheritors are of equal means.  Enabling your family to keep a vacation home long-term often means leaving some funds to pay for the upkeep of the property for at least a few years following your death.
  • Consider the estate and capital gain tax implications of gifting a vacation home to your children, or passing the property on to them at death.  In the case of estate tax, make sure there are sufficient funds to pay these taxes so that the vacation home will not have to be sold or mortgaged to make these payments when the time comes.
  • Consider putting a system in place for making decisions, including the use of the property, when and if to make major repairs, and when and if the property is rented or sold. Decision-making challenges increase exponentially the greater the number of people involved.  By putting a system in place, you can reduce the friction that may arise among children with competing interests who are trying to work this out after you are gone.
  • If a vacation home is transferred to a trust, make sure you understand local requirements regarding beach stickers and related perks available to owners of vacation properties.  Oftentimes additional documentation must be provided to the town in which the property is located to make sure you can continue to visit the beach without issue as you have done in the past.

3. Special Considerations for Rental Properties

Many owners of vacation homes rent these properties for some or all of the summer months, generating income that helps pay the costs of owning such a property.  As estate planners, in addition to planning for ownership of vacation property after an owner’s death, we also need to take into account the additional liability potential associated with rental properties.  

The first line of defense is always to be sure you have adequate insurance on the property, including liability insurance which will offer some protection if a renter or their guest is injured on the property.  Owning a vacation home in a limited liability company can offer an additional layer of protection for your personal assets against a judgment if your insurance coverage is not sufficient.  Making sure you educate yourself about and follow all local laws and regulations concerning rental properties is also important. 

4. Recreational Vehicles Need Planning Too

Any vehicle that has a title is an asset that should be planned for, as transferring title to such an asset at death can mean the involvement of the probate court.  Because insurance rates can be higher for vehicles held in trust, transferring cars to trust (at least in Massachusetts) is not ideal. Joint ownership may be appropriate, as may be transferring title before an owner’s death.  LLCs may be used for boats where liability protection is a concern.  Additional planning considerations may be involved with larger vessels registered with the Coast Guard.  As with all vehicles, make sure your recreational vehicles are adequately insured and that you have sufficient liability insurance, including an umbrella policy, that will protect you and your other assets in the event of an accident.

5. Plan to do Your Estate Plan When you are Planning Your Vacation, Not When you are About to Leave

As much as we would love to do an estate plan in a week for everyone who is about to leave on vacation and is panicked about getting on a plane without a Will, unfortunately that is not possible.  Good estate planning takes time and careful consideration of the issues involved.  A rushed estate plan is more costly and often does not resolve issues that could be addressed with more thoughtful planning.  

If you are concerned about the state of your estate plan and are planning a trip, contact your estate planner several months in advance to ensure you will have the time to discuss your planning thoughtfully, to have documents prepared and signed that will effectively carry out your planning goals, and to fund your trust and designate beneficiaries appropriately before getting on that plane.

For many of us, summer is time when life tends to slow down a bit – kids are out of school, some businesses offer shorten work weeks, and the longer days make us feel like we have more time.   These factors can make the summer months a good time to take care of matters that take a back seat during the busier times of the year.  If you would like to discuss any of these summer planning issues, or estate planning in general, we are here to help.  Planning now will give you the peace of mind to enjoy the summer months without worry.

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 the former President and current member 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.

June 2025

© 2025 Samuel, Sayward & Baler LLC

Think Before You Gift: How Medicaid Sees Your Financial Generosity

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“I want to give some money to my child – is that okay to do?” I often hear this question from elderly clients who visit me for the purpose of long-term care planning. The short answer: Yes, you are free to gift a certain amount to your adult children without filing a gift tax return. But here’s the catch – what seems like a generous gesture today could create serious issues down the line if you ever need Medicaid to help pay for nursing home care.   

Let’s break it down. As of January 1, 2025, you can gift up to $19,000 per person per year without needing to file a federal gift tax return.  This is the annual gift tax exclusion amount for 2025.  Annual exclusion gifts may be made to multiple recipients.  For example, you may give $19,000 to each of your children, Alvin, Simon, and Theodore, during 2025. If you are married, each spouse may give $19,000 to each child, meaning that Alvin, Simon, and Theodore may each receive a total of $38,000, allowing you and your spouse to gift $114,000 in 2025 without filing federal gift tax returns. 

Sounds great, right? But here’s where things get complicated.

If you need Medicaid to pay for nursing home care within five years of making those gifts, the money you gave away could come back to haunt you. Medicaid has both medical and financial eligibility requirements. Upon application for such benefits, MassHealth (the agency that administers the Medicaid program in Massachusetts) will require an applicant to provide detailed financial information going back five years. This includes disclosing any gifts made during that period. If you made gifts during the so-called five-year look-back period, Medicaid considers the gifts to be “disqualifying transfers.” The logic is simple: if you’d held onto that money, you could have paid for your own care. By giving it away, you’ve essentially reduced your assets to qualify for government help – and that’s a red flag for Medicaid.

If Medicaid determines the gifts are disqualifying transfers, the person who made the gift will be ineligible for benefits for some period of time.  The only way to avoid the penalty? The gift must be returned – which isn’t always practical or even possible. The real kicker is that the period of ineligibility does not begin until the applicant “would have otherwise been eligible.” That means the disqualification period for making a gift begins after the applicant has run out of money.  And keep in mind, this trap for the unwary doesn’t just apply to cash gifts. Giving away property, like a house, counts too. 

There’s absolutely nothing wrong with wanting to help your children financially – but when it comes to significant gifts, timing and strategy matter. As you grow older or start thinking about the possibility of needing long-term care, it’s essential to consult with an experienced attorney who can help you avoid costly mistakes. Thoughtful planning today can spare you and your family a great deal of stress and financial strain down the road.

Attorney Leah A. Kofos is an 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. 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.

© 2025 Samuel, Sayward & Baler LLC

5 Things to Know about Your Home and Paying for Long-term Care

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May is recognized as Elder Law month by the National Academy of Elder Law Attorneys (NAELA) and members are encouraged to provide education about the particular legal challenges that older Americans face to bring awareness of these to the public at large. One of the most frequent concerns I hear from older clients is about protecting their home from loss to long-term nursing home care costs.  Given that a nursing home can cost $16,000 per month or more, this is a valid concern.  

There are essentially three ways to pay for long-term care:  1) private pay – recipients of care pay the cost from their funds; 2) long-term care insurance – this is insurance purchased and maintained by the care recipient the purpose of which is to pay for long-term care costs; and, 3) Medicaid (sometimes called MassHealth in Massachusetts).  Medicaid is the state and federally funded program that will pay the medical costs, including nursing home care costs, for individuals who are both medically and financially eligible for the program. 

Here are 5 things to know about how the home is treated for purposes of determining financial eligibility for Medicaid benefits to pay for long-term nursing home care costs. 

 

1. You don’t have to sell your home, but there will be a lien.  Many people think that they must sell their home in order to be eligible for Medicaid benefits.  Sometimes they believe this because they have been told so by the long-term care facility caring for their loved one.  This is not the case. The home is so-called ‘non-countable’ asset (up to $1,097,000 of equity in 2025) for purposes of determining Medicaid eligibility.  That means that a person may receive Medicaid benefits to pay for nursing home costs and still own his home.  However, the Commonwealth will file a lien against the property with the registry of deeds.  The amount of the lien is the amount the state pays on behalf of the Medicaid recipient. As such, the house cannot be sold without re-paying the state.   In addition, if the recipient is a single person and dies owning their home after receiving Medicaid benefits to pay for care, the state will file a claim against the recipient’s estate and seek repayment from the estate.

 

2. Keeping the home can be challenging.  Although the regulations permit a Medicaid recipient to own her home, this can be challenging since all but a small amount of the recipient’s monthly income must be paid to the nursing home each month toward the cost of care.  As such, the recipient’s income is not available to pay the real estate taxes, insurance, utility bills and the cost of upkeep on the home.  In some cases, family members will pay these expenses and hope to be reimbursed when the home is eventually sold. In other cases, the home will be rented and the rental income used to pay the property expenses.  Both of these options present challenges and should be thoughtfully considered before embarking on either. 

 

3. Transferring ownership of the house to the spouse in the community is usually advisable.    Many married couples own their home as tenants by the entirety which is a special form of joint ownership for married couples.  This form of ownership means that when one spouse dies, the house belongs entirely to the surviving spouse without the need for probate.  Although the house is a non-countable asset and the state is not permitted to file a lien against the property if there is a spouse residing in the home, it is usually prudent to transfer the home into the name of the community spouse when one spouse needs long-term nursing home care.  The reason for this is to protect the home from a lifetime lien or post-death claim (see #1 above) in the event the community spouse predeceases the nursing home spouse. There is no ineligibility period imposed for transfers of assets between spouses (see #4 below).

 

4. Special rules for certain transfers of the home.    The general rule for eligibility for Medicaid to pay for nursing home care costs is that if the applicant (or his or her spouse) gives away assets within the 5-year period preceding the application for benefits, he or she will not be eligible for benefits.  This penalty applies to transfers of the home as well as other assets even though the home is a non-countable asset.  However, there are some exceptions to this transfer penalty rule.   The most commonly used exception is the exception for transfers between spouses.  The Medicaid regulations permit assets, including the home, to be transferred between spouses without the imposition of any penalty period.  Taking advantage of this exception is a good way for a married couple to protect the home from a Medicaid lien when one spouse needs long-term care.  Other exceptions to the transfer penalty include transfers to a blind or disabled child and to certain types of trusts.  

 

5. Planning 5 years in advance of applying for Medicaid can preserve the home for your beneficiaries.   For people who want to preserve the value of their home for their children or other beneficiaries, planning in advance is the best way to achieve that goal.  Transferring the home to an irrevocable trust that complies with the Medicaid rules is a common planning strategy.  However, there are consequences to such a transfer that need to be considered to determine if this is the right planning for your situation.  

 

For many families, the home is their most valuable asset and they want to pass that value to their beneficiaries when they die.  The prospect of losing one’s home to long-term care costs worries many people.  Being informed of the Medicaid eligibility rules and how those rules apply in your situation is the first step in determining your options for preserving your home from loss to nursing home care costs. If we can help you navigate the rules and your options, please don’t hesitate to contact our office and make an appointment with one of our 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 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 www.ssbllc.com or call 781/461-1020. 

 

May, 2025

 

© 2025 Samuel, Sayward & Baler LLC

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

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