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Five Ways Matters of the Heart Intersect with Estate Planning

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It’s almost Valentine’s Day, and our thoughts turn to reminding those we love how much we care about them.  However, sometimes our relationships don’t always go as planned.  Either way, it’s important that your estate plan keeps pace with your love life.  Here are five ways your estate plan should respond when love is grand, or when love stinks.

1. Show your Love with a Good Estate Plan

Estate planning is about making sure the people you care about will be taken care of if something happens to you.  Estate plan documents provide a roadmap for your family, naming decision-makers and people who are in charge of settling your estate following your death, and making sure your assets get to the people you wish to receive them.  If you have young beneficiaries or those who can’t properly manage assets for themselves, your estate plan can make sure they are taken care of after your death, naming guardians for minor children, and creating trusts to make sure assets are properly managed and applied for young or immature beneficiaries.  Your loved ones will remember you fondly if you leave a well-planned estate.

2. Ensuring Continued Support for Parents or Other Relatives

If you provide support to your parents or other older relatives, planning for their continued support if something happens to you is something you may not consider because you do not expect to predecease them. However, if you do, and if the support you provide is crucial to their well-being, your plan should make provisions for their continued support.  An important part of planning for aging relatives is making sure any money left to them is left in trust, in a way that will not impact needs-based public benefits they may be eligible to receive to pay for their care. A trust will also insure that after your older relatives pass away, the remaining funds are distributed to people you choose.

3. When Love Goes Wrong

Unfortunately, relationships are not always all chocolates and roses.  For couples in the midst of divorce proceedings, estate planning should be a priority.  An important part of estate planning is naming decision-makers in the event you become incapacitated and cannot make legal, financial or health care decisions for yourself.  While a divorce is pending, you should consider updating your Power of Attorney (for legal and financial decision-making) and your Health Care Proxy (for health are decision-making), to make sure people you trust will make those decision for you.  Chances are your existing Power of Attorney and Health Care Proxy name your spouse as the decision-maker, which may not be the person you want to have that authority under the present circumstances.

If you pass away, your estate plan will determine how your assets are distributed.  Because a divorce proceeding, among other things, determines the ownership of a couple’s assets, there are some limitations on this aspect of estate planning while a divorce is pending.  During divorce proceedings, an automatic restraining order applies that prohibits either spouse from selling or transferring assets or changing the beneficiary on life insurance and retirement accounts except as permitted by Court order or agreement of the other party.  Although asset ownership and beneficiary changes may not be made until after the divorce judgment issues, in the meantime divorcing parties can create updated Wills and Trusts that will distribute their assets as appropriate after their divorce is final, keeping in mind that those instructions may not be effective until the divorce is final.

4. After Your Divorce Is Final

Massachusetts law provides for an automatic modification of an estate plan after divorce, although the result may not be what the divorced person intends.  In Massachusetts by law, a divorce judgment revokes any disposition of property to the divorced person’s former spouse, including trust provisions, beneficiary designations as to life insurance and retirement plans, transfer-on-death accounts, and any other revocable disposition.  If estate plan documents named the former spouse or family members of the former spouse as a fiduciary – such as a Personal Representative (formerly Executor) or Trustee – those designations are treated as if the former spouse and the former spouse’s relatives predeceased the divorced person.  Although these provisions may seem to do the trick, in reality they can wreak havoc on an estate plan and create unintended consequences.  In addition, in the event a divorced person intends to or is required by their divorce judgment to benefit their former spouse with life insurance or some other asset, steps must be taken to ensure that designation will stick after the divorce occurs.  The law also states that if a financial company is not properly notified of the divorce and it makes a distribution to the former spouse then the company cannot be held liable.

Once a divorce is final, each party should review their existing estate plan and beneficiary designations consistent with the terms of their divorce agreement and with the help of an experienced estate planning attorney and make any changes that may be necessary.  For example, for a couple with young children, a Trust may be appropriate to manage a divorced parent’s assets for the benefit of those children if that parent were to pass away during a child’s minority.  Naming someone that the parent trusts to manage and apply the Trust assets appropriately for the minor children is of the utmost importance for a single parent.  If a Trust is not created, the children’s guardian/conservator will have responsibility for managing any assets inherited by the children, and that person is likely to be the children’s surviving parent.  For most divorced couples, the idea that a former spouse will have control over the inheritance left to the children is unsettling and inconsistent with their intentions.  An estate plan that addresses divorce-related issues can ensure this does not happen, and that the divorced parent’s wishes will be carried out. 

Addressing the continued ownership of real estate that will be retained by one member of a formerly married couple is also important.  Although a divorce will sever a tenancy by entirety (the form of joint ownership for married couples) and a divorce agreement or order of the court will determine the title, it is still advisable to have a new deed signed conveying the property into the name of the spouse who is retaining it.  No matter how sick and tired you are of dealing with your soon to be ex-spouse, don’t walk away until the i’s are dotted and the t’s’ are crossed and that new deed putting the house in your name is signed and filed with the Registry of Deeds.  This will ensure you (and you alone) can sell, mortgage or plan with that property going forward, without the involvement of your ex-spouse.

5. Planning for a New Blended Family

And let’s not forget that many divorced people go on to find love again.  Estate planning for blended families is extremely important.  Re-marriage brings its own set of estate planning challenges, especially if both parties have children from prior marriages or relationships.  In such a case, good estate planning is crucial to ensure that if one member of the new couple dies, his or her children from a prior marriage will be provided for appropriately, while the new spouse or partner is also provided for if they do not have sufficient means of their own.  It is unfortunate when, because of poor or neglected planning, all of a parent’s assets pass to the new spouse, who then leaves them to his or her own children or family members at death, leaving the deceased’s children with nothing. 

When all is well, planning for death or incapacity may not seem to be a priority which means it can be left on the To Do list forever.  When a marriage is ending, there are many things that are a priority, and dealing with multiple attorneys at the same time is not a happy prospect (for most people).  But estate planning is an important part of taking care of your loved ones.  Whether your situation is simple or complicated, whether your relationships are wonderful or not, taking the time to talk through your situation with an experienced estate planning attorney will provide you with options and strategies to achieve your goals, to protect your family, to give you peace of mind, and allow you to show those you love just how much you care.

 

Maria Baler, Esq. is an estate planning and elder law attorney and partner at Samuel, Sayward & Baler LLC, a law firm based in Dedham. She is also a former director of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA), and 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.

February 2023

© 2023 Samuel, Sayward & Baler LLC

 

What’s New at Samuel, Sayward & Baler LLC – Don’t Miss Our January 2023 Newsletter

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Don’t Miss Our January 2023 Newsletter

Attorney Abigail Poole 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.

Five Estate Planning Resolutions for the New Year

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It’s that time of year again when we resolve to do better in the coming year than we did in the past year.  Exercise regularly, eat healthy, and get better sleep are common January pledges.  The new year is also a good time to resolve to take action on your estate plan.  Read on for five estate planning resolutions for 2023.  

1. Create or Update your Estate Plan

If you don’t currently have an estate plan (Will, Power of Attorney, health care documents and maybe a Trust), resolve to remedy that situation in 2023.  Creating an estate plan is important for everyone age 18 and older.  Even if your assets are modest, it is vital to appoint people who are legally authorized to make decisions for and about you if you experience a period of incapacity. If you have young children, a large estate, a beneficiary with disabilities, a second marriage, multiple properties, or other more complex situations, a Trust may be advisable to meet your planning goals.  If you have an estate plan but it has been more than five years since you reviewed your plan, resolve to meet with your estate planning attorney to review and update your plan as needed. 

2. Check your Beneficiary Designations

Many of your most significant assets – life insurance, retirement accounts, annuities – will be paid to a designated beneficiary at your death.  Properly designating those beneficiaries is more complicated than it may appear.   If you have minor children to provide for, or if you want to benefit a person with disabilities who receives, or may receive, needs-based governmental benefits, it is best that assets pay to a Trust for those beneficiaries. Understanding how distributions from retirement accounts work after the death of the account owner, and how different beneficiary designations will impact the size, frequency and income tax payable on those distributions is crucial to making appropriate designations. Ensuring your beneficiary designations are consistent with your overall estate plan is critical to accomplishing your estate planning goals.

3. Resolve to Fund your Trust 

If you have created a Living Trust as part of your estate plan, follow through and retitle your assets as directed by your estate planning attorney.  Two of the main reasons for creating Trusts include probate avoidance and estate tax savings.  However, your Trust will not achieve these goals if you do not change the ownership of your assets during your lifetime from your individual (or joint) names to the name of your Trust.  There is no question that this can be a time-consuming task since it may involve meeting with a customer service representative at the bank, calling financial institutions to determine the process for making the change, completing the paperwork, and then following up with the companies to confirm that the changes have been properly instituted.  However, these steps are essential to the success of your plan.  If you are not able to accomplish the trust funding tasks, contact your estate planning attorney to obtain assistance.  Many estate planning law firms offer trust funding services.  

4. Provide copies of your Health Care Documents to your Health Care Agent 

Documents expressing wishes regarding end-of-life-care and instructions regarding medical treatment are a vital part of every estate plan.  In Massachusetts, these often include a Health Care Proxy and a Living Will.  A Health Care Proxy is the legal document used to appoint the person who will make health care decisions for you if you are not able to do so.  The appointed individual is called your Health Care Agent.  A Living Will is not a binding legal document in Massachusetts but is used as a way to express a person’s wish that extraordinary medical measures not be used to prolong life in circumstances where death is imminent. Once signed, copies of these documents should be provided to your Health Care Agent and a copy of your Health Care Proxy should be given to your primary care physician’s office as well as to any other doctors who regularly treat you. We recommend that you provide these documents to your Health Care Agent electronically.  That way your Health Care Agent can save those electronic copies on their phone or in their cloud-storage service (Dropbox, Google drive, etc.) so that they are immediately accessible.  You should save your own Health Care Proxy, as well as the Proxies of anyone for whom you may be named as Health Care Agent, on your phone or in the cloud as well. 

5. Organize your Financial Records 

A primary purpose of estate planning is to make it easier for people to help you if you become incapacitated and to ease the burden on the people who will be dealing with your estate when you pass away.  One of the greatest gifts you can give the people you have named to these positions, is the gift of well-organized records.  We handle a lot of estate and trust settlement matters in my office and one of the hardest parts for family members or others named as fiduciaries is finding information about assets: bank accounts, investment accounts, retirement accounts, pensions, life insurance, etc.  The same is true for debts and monthly bills.  This problem has become worse as more and more people move to paperless status for their accounts and bill pay.  Keeping an up-to-date list of all of your accounts and a file folder with a paper copy of a recent statement will be incredibly helpful to the person who is trying to manage these for you.  Set up a file with folders for your life insurance, long-term care insurance, each retirement account, your pension, each bank account, etc.  Do the same for your bills and don’t forget bills that are paid less frequently than monthly such as annual life insurance, homeowner’s insurance, etc.  Create a folder for your car with a copy of the registration, the title or lease agreement, auto insurance, car loan, etc.  If you have records that are only stored electronically such as income tax returns, create a folder and include information about how to access those electronic records.  Start in January and add to it each month and by next December you will have compiled a complete set of your records.

Good luck with the dieting, exercising and sleeping better in 2023.  If we can help with your estate planning, please contact our office to schedule a time to speak with one of our attorneys.  Happy New Year and best wishes for a happy and healthy 2023!  

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.

January, 2023

© 2023 Samuel, Sayward & Baler LLC

‘Tis the Season for Gifting

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The end of the year is often a time when people think about making gifts to loved ones for the holidays or for year-end tax planning.  Since we are in December, what better time to talk about the Gift Tax?  

Here are a few things to know about the gift tax.

  • Since there is no gift tax in Massachusetts, residents of the commonwealth need only be concerned about the federal gift tax.
  • There are two ‘exemptions’ or ‘freebies’ under the federal gift tax law:
    • The Annual Gift Tax Exclusion is the amount that each person may gift to any number of other individuals without any impact on the giver’s Lifetime Gift Tax Exemption.  In 2022, the Annual Gift Tax Exclusion amount is $16,000.  As of January 1, 2023, the Annual Gift Tax Exclusion amount will be $17,000. Gifts to any one person in a calendar year in excess of the Annual Gift Tax Exclusion amount will reduce the giver’s Lifetime Gift Tax Exemption by the amount in excess of the Annual Exclusion. 
    • In addition to the Annual Gift Tax Exclusion, each person has a Lifetime Gift Tax Exemption.  This Lifetime Exemption is the amount that each person may gift over and above the annual exclusion gifts.  In 2022, the Lifetime Exemption is $12,060,000.  As of January 1, 2023, the Lifetime Gift Tax Exemption will be $12.9 million. 
  • There is no limit on the amount you may give to your U.S. citizen spouse free of any federal gift tax.  There is an annual exclusion limitation for gifts to non-U.S. citizen spouses.  This amount is $164,000 in 2022 and $175,000 in 2023.  
  • There is no limit on the amount you may pay on behalf of any individual for tuition or medical expenses, provided these payments are made directly to the educational or medical institution.
  • There is no gift tax payable on gifts to qualified charities. 

The gift tax is not the only tax to take into consideration when thinking about making large gifts; there may be income tax, estate tax, and capital gain tax consequences.  And of course, taxes are not the only concern when making large gifts – there may be long-term care ramifications, concerns about a recipient’s ability to handle a large sum, and worries about potential threats to the gift by the recipient’s creditors (divorcing spouse, failed business, lawsuit, etc.).   If you are considering making large gifts to family members, talk with your estate plan attorney to make sure you have a good understanding of all of the consequences.  

 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.

December, 2022

© 2022 Samuel, Sayward & Baler LLC

Happy Holidays from Samuel, Sayward & Baler LLC (Including Our Version of The Twelve Days of Holiday Estate Planning)

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Hello and Welcome to this week’s Holiday Edition of Smart Counsel for Lunch. We want to wish you all a happy holiday and healthy new year! Please enjoy our holiday message along with an additional video below on the Twelve Days of Holiday Estate Planning.

Please enjoy our video on The Twelve Days of Holiday Estate Planning.

Five Things on an Estate Planner’s Holiday Wish List

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My father recently asked me what was on my wish list for gifts this year.  As an estate planning attorney, that got me thinking about what things would be on my wish list for clients to do to ensure they can enjoy the holiday festivities with peace of mind.  Without further ado, here are five things I wish for my clients and their families, and which make great conversation topics over a holiday family supper.

1. Estate Plan Documents for Every Young Adult on your Gift List

If you have a child, niece or nephew, or other young adult you care about who will soon turn age 18 and be heading off to college, it is important that young adult create some basic estate planning documents before heading off to college.  A power of attorney and health care proxy will ensure a parent or other trusted person can make financial and health care decisions for that young adult in the event of his or her incapacity.

2. A Completed Tangible Personal Property Memorandum

When you visited your estate planning attorney, he or she may have discussed with you completing a Tangible Personal Property Memorandum. The Memorandum is a separate document that is incorporated by reference in your Last Will and Testament.  It identifies specific items of personal property and the individuals who you would like to receive each specific item from your estate after your death. For example, the Memorandum might state that your wedding ring is to be distributed to your son Max after your death. If it is important that specific people get specific items from your estate and you have not put that information down in writing on the Memorandum (and sent us a copy of it), now is the time to do it. 

3. A Complete List of Digital Accounts and Passwords

Now more so than ever, it is imperative that you 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 attorney-in-fact, Personal Representative or Trustee will need to access your accounts if you are incapacitated or deceased to manage and/or close your accounts. As more and more information is solely shared and stored electronically, providing a list of accounts and passwords for your fiduciary will help make his or her job much easier when the time comes that he or she must assist you or settle your estate.

4. Written Funeral Wishes

Many of my clients have a pretty good idea about what they would like to happen following their death in terms of funeral and burial or cremation instructions. They may have shared those wishes verbally with family but not put them down in writing.  Now is the time to memorialize your burial or cremation wishes and funeral wishes in writing.  A Directive as to Remains accomplishes this goal and is tailored to fit your wishes.  For example, Aunt Sally might prepare as part of her estate plan a Directive as to Remains that states she wants a green burial and a gathering of friends and family to celebrate her life.

5. Confirmation of Beneficiaries on Retirement Accounts and Life Insurance Policies

A crucial step that is sometimes missed during the hectic rhythm of life is designating beneficiaries of your retirement accounts and life insurance policies. There is no time like the present to confirm that you have designated the appropriate primary beneficiary and contingent (back-up) beneficiary on those assets.  Doing so will guarantee that your retirement accounts and life insurance death benefits will pass to the correct individuals outside of probate at your death.

And there you have it, my estate planner wish list for every client to complete this holiday season. Doing so will give you (and me!) peace of mind that you are leaving your loved ones clear directions regarding your wishes and making it easier for them to manage your estate while you are alive or after your death.   

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-Elect 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. 

 

December, 2022

© 2022 Samuel, Sayward & Baler LLC

The Millionaires Tax Comes to Massachusetts

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On Election Day, November 8, 2022, Massachusetts voters approved Ballot Question 1, the so-called Millionaires Tax by a close margin.  Of the 50% of Massachusetts registered voters that voted on Question 1, 52% were in favor of the tax and 48% voted against.

This ballot question approved the adoption of an amendment to the Massachusetts state constitution that was already twice approved by the state Legislature  in 2019 and again in 2021.  Starting with the tax year that begins on January 1, 2023, the Amendment will impose an additional 4% state income tax on a Massachusetts resident’s annual taxable income in excess of $1 million.  The threshold for imposition of the extra 4% tax will be adjusted annually for inflation.  The tax is expected to affect only 0.6% of Massachusetts households. 

The tax revenue raised by this extra 4% tax, estimated at $1 to $2 billion annually, will be used, subject to appropriation by the Legislature, for public education (including public colleges and universities) and transportation (repair and maintenance to roads, bridges, and public transportation.

If income from any source, including wages, interest, dividends, income from the sale of a home or business, and long and short-term capital gains, exceeds $1 million, the portion in excess of $1 million will be taxed at 9%  (the standard Massachusetts income tax of 5% plus the additional 4% tax on income in excess of $1 million). Because Massachusetts taxes short term capital gains at 12%, the effective new tax rate on this income will be 16%.  

For the typical Massachusetts resident, the sale of a home may be the most likely reason you would have $1 million of income in one year, in the form of capital gain realized on the sale of your home.  It is important to keep in mind that you do not pay capital gain tax on the entire sale price of your home.  First, capital gain is calculated by subtracting your “basis” in your home from the sale price. Your basis is the price you paid for the property, plus any capital improvements you have made to the property over the course of your ownership.  If an owner of the property has died, the basis in the property receives a so-called “step-up” in basis  to the value of the property on the date of the owner’s death, which will reduce the capital gain when the home is sold.  

Second, keep the capital gain exclusion in mind.  A single individual can exclude up to $250,000 of capital gain from tax if they sell their primary residence and have owned and lived in the home for two of the last five years prior to the sale.  Married couples can exclude $500,000 of capital gain from tax if one or both of them owned the home and both of them resided in the home for two out of the last five years.  A deceased spouse’s capital gain exclusion can continue to be used up to two years after their death if the home is sold during that time and the surviving spouse has not remarried.  If a homeowner has moved to a care facility and lived in the home for at least one year during the five years prior to sale, the time spent living in the care facility can be used toward the two-year residence requirement. 

Once the final regulations applicable to this tax are finalized its impact may be better understood, and with it the ways in which the tax may be minimized by proper tax planning.  In the meantime, if you anticipate a taxable event such as the sale of a home or business that will result in more than $1 million of income, consult your income tax advisor to understand how this new tax will impact you, and to determine if there are ways to reduce its impact.

Maria Baler, Esq. is an estate planning and elder law attorney and partner at Samuel, Sayward & Baler LLC, a law firm based in Dedham. She is also a former director of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA), and the immediate past President of the Board of Directors of the Massachusetts Forum of Estate Planning Attorneys. For more information, visit www.ssbllc.com or call (781) 461-1020. This article is not intended to provide legal advice or create or imply an attorney-client relationship. No information contained herein is a substitute for a personal consultation with an attorney.

November 2022

 

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

©2024 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.