Attorney Suzanne Sayward discusses our Quarterly 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.
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Planning for a Special Needs Relative: Honoring Special Needs Law Month
It’s fall again and October is the time of year when the Massachusetts Chapter of the National Academy of Elder Law Attorneys (“MassNAELA”) celebrates Special Needs Law Month by hosting valuable legal education programs for attorneys regarding new developments in special needs law. MassNAELA also distributes copies of its Special Needs Advocacy Toolkit, which is accessible to the public and provides tools to help people advocate for the rights and well-being of individuals with special needs. The Toolkit provides important information on financial management, as well as an understanding of Medicare and Medicaid, a student’s right to an independent educational plan, housing options, and other issues. You can find the Second Edition of the Toolkit here: https://massnaela.com/wp-content/uploads/2021/10/MassNAELA-Special-Needs-Toolkit-Second-Edition.pdf
Not only are many of our attorneys here at Samuel, Sayward & Baler active in MassNAELA, our senior associate attorney, Abigail Poole, is the current President! We are proud to be part of an organization of attorneys who are experienced and trained in working with the legal problems of individuals of all ages with disabilities. We would like to honor Special Needs Law Month by providing you with basic information on estate planning for a special needs child, grandchild, or other relative.
Financial and Healthcare Documents for an Individual with Special Needs
1. Durable Power of Attorney
A Durable Power of Attorney is a legal document in which the principal (the person creating the document) designates someone to make legal and financial decisions in the event of incapacity. This document is especially important for a special needs individual because it ensures that the individual’s financial affairs are properly managed in the event of incapacity. However, if the special needs individual is already incapacitated or is unable to understand the legal implications of the Power of Attorney, then another alternative will need to be explored, such as conservatorship.
The person designated in the Power of Attorney is called an attorney-in-fact. The attorney-in-fact should not only be trustworthy and capable of making decisions in the best interest of the principal but should understand the implications of their decisions on the individual’s eligibility for needs-based government benefits. The attorney-in-fact should be informed about the rules and regulations governing such benefits to prevent any action that could jeopardize the individual’s eligibility. The Power of Attorney can be drafted to include specific instructions and guidelines for the attorney-in-fact in accordance with the individual’s circumstances.
2. Health Care Proxy and HIPAA Authorization
A Health Care Proxy is a legal document used to designate a Health Care Agent to make medical decisions on behalf of the principal (person creating the Proxy) if the principal is deemed by his or her medical provider to be unable to meaningfully participate in decision making. As with the Durable Power of Attorney, the special needs individual must have capacity and an understanding of the document in order to execute it.
The Health Care Agent should be someone who the individual can discuss his or her healthcare wishes with and who will follow those wishes. The Health Care Agent’s role is to speak with the individual’s doctors and make healthcare decisions based on the individual’s wishes, including direction regarding life-sustaining procedures.
The HIPAA Authorization allows the persons listed in the document to obtain personal medical information and speak with medical providers. The HIPAA Authorization and the Health Care Proxy are extremely important for special needs individuals over the age of 18. That is because once a person is age 18, they are deemed legally competent to make decisions for themselves. At that point, parents or other caregivers no longer have the right to make healthcare decisions on the individual’s behalf or even to speak with physicians or other medical providers. without written consent.
Guardianship and Conservatorship
If an individual doesn’t have capacity or doesn’t understand the Power of Attorney or Health Care Proxy they are signing, then guardianship and/or conservatorship may be necessary. A guardian is someone who has legal responsibility for an individual’s physical well-being and the authority to make all decisions regarding his or her care, including healthcare decisions, residence, and education. This legal responsibility is created by the Probate and Family Court upon the court’s appointment of the guardian.
Similarly, a conservator is someone appointed by the court to manage the financial assets of a special needs individual if the individual is unable to manage the assets themselves. A conservator may also apply for and manage government benefits on behalf of the individual.
Any person serving as a guardian or conservator should name successor guardians and conservators in their Will. A court will need to appoint the guardian/conservator named in a Will to make decisions for the special needs individual.
Supplemental Needs Trusts
Parents and grandparents can create trusts for their special needs children or grandchildren with the assistance of an estate planning attorney with expertise and experience in planning for beneficiaries with special needs. This is preferable to leaving money directly to the beneficiary because Supplemental Needs Trusts (“SNT”) provide long-term management of the inheritance you leave to disabled beneficiaries while allowing them to qualify for needs-based government benefits. Special needs trusts can pay for and supplement medical and travel expenses, entertainment, pet care, and other expenses that can enhance a beneficiary’s quality of life especially when parents or grandparents are no longer around. The Trust creator names a Trustee to manage funds in the Trust who could be a professional or a trusted family member.
It is important to us at Samuel, Sayward & Baler to develop a plan that ensures that your family member with special needs is cared and provided for in the event you are unable to. It is also important to know about these basic legal tools so that you can be an effective advocate for the special needs child or relative in your life. Keep these things in mind when thinking about your family member with special needs and consult with an estate planning attorney with expertise in special needs planning to advise you about these important matters.
Attorney Brittany Hinojosa Citron is an associate attorney with Samuel, Sayward & Baler LLC in Dedham, Massachusetts, which assists and advises clients who have family members with special needs and focuses on trust and estate planning 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.
October, 2023
© 2023 Samuel, Sayward & Baler LLC
Updates to the Massachusetts Estate Tax Exemption
Attorney Maria Baler discusses Updates to the Massachusetts Estate Tax Exemption, 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
Read some of the Frequently Asked Questions about Updates to the Massachusetts Estate Tax
Five Ways to Protect your Estate
When we meet with clients for their estate planning, I ask them about their goals. One of the most frequent answers I hear is that they want to ‘protect their estates.’ Of course, my next question is, from what? There are a variety of risks that estate planning can address when timely and properly undertaken. Read on for five ways to protect your estate from risks that can negatively impact the estate, and legacy, you intend to leave.
1. Protect your assets from long-term care costs.
One of the biggest concerns people have when they are planning their estates is that their assets will be consumed by their long-term care costs. Given the very high cost of such care, whether provided at home or in a long-term care facility, this is a valid concern. While many people think Medicare will cover long-term care costs, it does not. Advance planning to protect assets from spend down on long-term care costs often includes creating and funding an irrevocable trust. Depending on age, health and financial circumstances, purchasing a long-term care insurance policy which provides financial assistance for services like home care, assisted living, or nursing home care is another excellent way to protect a legacy from loss to long-term care costs.
2. Protect the inheritance you leave your beneficiaries
It is essential to thoughtfully decide how your assets will be distributed upon your passing. If you have minor children or beneficiaries with special needs, it is critical that assets not pass directly to these beneficiaries but instead pay into a Trust for them. A person with a disability who is receiving or may be entitled to receive public benefits may lose those benefits if they receive an inheritance.
Under the law, a minor is not legally able to receive assets. As such, if a minor is named as a beneficiary, a court appointed conservator will be required to collect the benefit on behalf of the minor. The conservator will need to manage the assets and report to the court on an annual basis – time consuming and expensive. Once a beneficiary turns age 18, the beneficiary is entitled to receive the asset – often another bad result.
Leaving an inheritance to beneficiaries in trust is often beneficial even if your beneficiaries are non-disabled adults. An inheritance that passes outright to beneficiaries is subject to the easy reach of their creditors such as a divorcing spouse, failed business, lawsuit, etc. Structuring your estate plan to leave the inheritance to your beneficiaries in trust will protect it from the easy reach of those creditors.
3. Protect your estate from avoidable costs and taxes
One key aim of estate planning is to minimize expenses and taxes that can diminish the value of your estate. Estate taxes can significantly reduce the assets you leave behind. Strategies like creating trusts, gifting assets during your lifetime, and making use of tax exemptions can help reduce the impact of estate taxes.
Furthermore, the way your assets are titled and structured can affect administrative costs. Proper titling of assets and careful planning can avoid probate and streamline the estate settlement process, saving both time and money for your beneficiaries.
4. Protect your unique assets
If you possess unique assets like a vacation home, valuable art, or collectibles, it’s crucial to incorporate them into your estate plan. These assets often hold sentimental value and can be a significant part of your legacy. The last thing most people want is to have their heirs fighting over their possessions following their deaths.
To protect and preserve these unique assets, your estate plan should clearly outline how they should be managed or distributed. You might consider creating a family trust to oversee the vacation home’s usage and maintenance, or specifying how your art collection should be appraised and distributed among your heirs.
By planning for these unique assets, you preserve your legacy by ensuring they continue to hold value and significance for your loved ones in the years to come.
5. Protect your privacy
Maintaining privacy is a fundamental aspect of estate planning. When you work with an estate planning attorney, you can establish measures to safeguard your personal and financial information.
One critical tool for privacy protection is the revocable living trust. Assets titled in a trust will avoid probate, a public court process that exposes your estate details to the public record. This means your assets can be distributed privately, without the need for public disclosure.
Additionally, working with professionals who understand the importance of confidentiality ensures that your affairs remain private during the estate settlement process. Protecting your privacy not only shields your financial matters from unnecessary public scrutiny but also preserves your family’s confidentiality during a potentially challenging time.
In conclusion, protecting your estate and preserving your legacy involves a comprehensive estate plan that considers various factors, from minimizing long-term care costs and taxes, safeguarding the inheritance you will leave, and planning for your unique assets. Working with an experienced estate planning attorney will help you tailor a plan that aligns with your specific goals and priorities, ensuring that your legacy is preserved and passed on as intended.
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.
October, 2023
© 2023 Samuel, Sayward & Baler LLC
Leaving A Legacy of Love (& Money)
A client recently asked me, “Is there anything that can be done now to protect my daughter and grandchildren’s inheritances?” Happily, I was able to explain that there are two tools available to safeguard the client’s legacy for her loved ones. These tools are prenuptial agreements and lifetime trust shares, which allow people to protect their wealth and ensure that their hard-earned assets are preserved for future generations.
If your adult child is not yet married, the best way to protect an inheritance is to execute a prenuptial agreement. A prenuptial agreement is a legally binding contract that is completed prior to marriage. It outlines the assets and rights of each person in the event of divorce or death which will supersede state law so long as the prenuptial agreement is determined to be valid. The prenuptial agreement can “carve out” assets, such as potential inheritances and gifts from parents, which will remain with your child in the event of a divorce instead of being divided between your child and the divorcing spouse. Your child and fiancé must each be represented by separate attorneys to provide advice and negotiate the prenuptial agreement. The prenuptial agreement should be started at least six to nine months prior to the date of the marriage ceremony.
In addition to your child executing a prenuptial agreement, you can take action by creating an estate plan that includes a lifetime trust share for your child. You can prepare a Trust now that upon your passing will hold and manage assets for your child for that child’s lifetime, or even for the lifetime of a child’s descendants (your grandchildren). Although your child (and grandchildren) can benefit from the funds held in the trust share during their lifetime according to the terms that you put in place, the assets are not as vulnerable to division between your child and a divorcing spouse because your child does not have total ownership and control of the assets.
To best preserve family wealth for multiple generations, your child should execute a prenuptial agreement and you should create an estate plan containing a lifetime trust share for your child. At Samuel, Sayward & Baler LLC, we strive to provide you with the peace of mind that you are taking all the steps necessary to afford your family financial security and stability, and protect your legacy for generations to come.
September, 2023
© 2023 Samuel, Sayward & Baler LLC
Community Resources Smart Counsel Webinar from September 14th
Our latest Smart Counsel Series Webinar took place on Thursday, September 14, 2023, from 6:00p.m. to 7:30 p.m. virtually via Zoom, and was hosted by Attorney Maria Baler who moderated a panel on community resources. Our local cities and towns and regional organizations offer a wealth of programs, resources, and assistance to residents.
These include educational, wellness and social programs, home care services, caregiver support, Medicare counseling, assistance with money management, and providing veterans with assistance to gain access to health care and financial benefits that may be available to them. Many residents are not aware of the availability of these resources until they are in need. This webinar explored these resources in detail. Watch the webinar to learn more about what is available and how they can be accessed.
We were delighted to be joined for this discussion by three individuals who assist local residents every day: Lina Arena-DeRosa, the Director of the Westwood Council on Aging, Sheryl Leary, the Director of Planning and Community Development for HESSCO (the Aging Services Access Point (ASAP) and Area Agency on Aging (AAA) for Southern Norfolk County, and TJ Tedeschi, U.S. Marine Corps (Ret.), the Veteran Service Officer (VSO) for the West Suburban Veterans District which encompasses the Towns of Needham, Wayland, Wellesley, Weston and Westwood.
Growing Together, Providing Forever: 5 Things Young Families Should Know About Estate Planning
Starting a new school year comes with a seemingly endless “to-do” list: buy school supplies, meet the teachers, make the school lunches, create a schedule for extracurricular activities, get to those nonstop piles of laundry.
One thing that is always on your mind that may not be written on a list is “planning for the future well-being of your child.” Although a young parent’s “to-do” list may seem daunting, it’s crucial to include estate planning on that list. Estate planning plays a pivotal role in ensuring that your children are provided for in the event of unexpected circumstances.
In Massachusetts, there are specific considerations young parents and families should keep in mind when creating their estate plans. Here are 5 essential things you should know as a young parent (or even as a young grandparent) about estate planning.
1. What is a Guardian?
A guardian is someone who will take legal responsibility for your child’s physical well-being and care in the event that you and the other parent pass away or become unable to care for your child. Your guardian has the authority to make all decisions regarding the care of your minor or incapacitated children, 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 children. 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.
2. What is a Conservator?
A conservator is the person who will have authority over your child’s financial assets. This might be necessary if the child received an inheritance, settlement, or other funds that need proper management until the child reaches a certain age or can manage the assets themselves. This includes Social Security benefits your minor child would receive based on your earnings. If you establish a trust for your children (which I will discuss later in this article), the conservator does not manage the assets in the trust; these assets will be controlled by the person you name as Trustee.
Like naming a guardian, you generally name a conservator in your Will. The conservator can be the same person serving as guardian, but it isn’t required. The conservator will also need to go through the court process to be appointed, which can take a long time and requires a lot of court oversight.
3. Parental Appointment of Temporary Agent
I’ve mentioned that a guardian or conservator 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 or conservator is waiting to be appointed by a court? Who takes care of your child and makes decisions for them?
Massachusetts law allows parents of a minor or incapacitated child to designate 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 the care, custody, or property of the minor or incapacitated child until a permanent guardian or conservator is appointed by the court.
The temporary agent is appointed through a document called a Parental Appointment of Temporary Agent. 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.
4. Create a Will or Establish a Trust
Drafting 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 and conservator for your minor or incapacitated children in your Will. Your Will also specifies how your assets will be distributed to your children; 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).
5. Properly Designate Beneficiaries
You should regularly review and update beneficiary designations on your life insurance policies, retirement accounts, and other assets. Well-intending parents may name their minor or incapacitated children as beneficiaries of their life insurance policies or retirement accounts so that the child receives the assets directly. However, remember that minors under the age of 18 cannot assume control of money. This means that naming your minor child as a beneficiary can result in unnecessary complications and a conservator needing to be appointed by the court. Naming an incapacitated child comes with its own set of complications, which can include the child losing essential government benefits.
It is important to consult with an experienced estate planning attorney about properly designating beneficiaries on your life insurance policies, retirement accounts, and other assets to ensure that the funds are used for your minor child’s care while reducing any unnecessary hurdles or court involvement.
These are tough decisions that require thoughtful consideration and planning. As 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. We are happy to help you ensure that the legal aspects are properly handled so that you can go back to making great memories with your family, and maybe even finishing those piles of laundry.
Attorney Brittany Hinojosa Citron 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.
September, 2023
© 2023 Samuel, Sayward & Baler LLC
Providing for your Pets
As of 2023, almost 66% of U.S. households have at least one pet- and many families have more than one! Many people consider their pet to be a member of the family, and most pet owners want to make sure that if they become incapacitated or pass away, their pet will be provided for. There are a couple ways that you can use estate planning to help make sure your pet is taken care of if something happens to you.
Durable Power of Attorney
When planning for your pet, you should first think about what should happen if you are alive but can no longer care for your pet yourself due to incapacity. In such situations, your Attorney-in-Fact under your Durable Power of Attorney may step in. Your Power of Attorney may direct that your assets may be used to pay for food, medical treatment, and other necessities, including keeping your pet at home as long as possible, as your Attorney-in-Fact decides appropriate.
Memorandum and Gifts for Pet Caretaker
Your estate plan should also include a plan for the care of your pet when you pass away. Your Last Will and Testament directs the distribution of your assets after you pass away, including your pets. If you have a specific individual you wish to take custody of and care for your pet after you pass, you may include those instructions in your Will, or on a separate Memorandum referenced in your Will. The Memorandum is incorporated by reference into your Will yet permits you to update it if you later get another pet or change your mind about whom you would like to care for your pet.
Your Will can also include a provision that gives a specific amount of money to the selected pet caretaker in order to assist with anticipated veterinary expenses, food, toys, etc. for your pet. Such gifts are usually small, ranging from $1,000 to $40,000, in my experience, depending on the age of your pet and the pet’s anticipated needs.
Revocable Living Trust Pet Sub-Trust
If you already have a Revocable Living Trust as part of your estate plan and would like to gift a larger amount of money to your pet’s caretaker but prefer that the funds are managed by someone else, then a simple pet sub-trust as part of your Revocable Living Trust may be a good option. Since 2011, residents of Massachusetts have been permitted to create trusts for the benefit of their pets. The trust is legally binding and must benefit a pet that is alive during the trust creator’s lifetime. There is a manager (Trustee) appointed to administer and distribute the trust money to a separate person who is the pet’s caretaker. The trust describes the purposes for which money may be distributed to the caretaker for the pet’s benefit, such as grooming, training, veterinary care, and more. If the amount held in trust is challenged, the court may determine if it is excessive in connection with the needs of the pet and reduce the amount so long as it will not negatively impact the care, maintenance, health, or appearance of the pet. The trust ends at the death of the last surviving pet and directs that the remaining funds, if any, are distributed according to other terms of the trust.
Stand-Alone Pet Trust
If you are contemplating setting aside a large sum to pay for your pet’s expenses because the pet has a long-life expectancy or significant health care needs, a stand-alone pet trust may be a better fit for you. But keep in mind that funding the trust with millions of dollars may spell Trouble – as in the pet trust created for Leona Helmsley’s dog, Trouble, whom the court determined did not require $12 million dollars to pay for the pup’s lifetime care and redirected the distribution of a majority of those funds to others. While the stand-alone pet trust must adhere to the same Massachusetts laws mentioned above, it also allows you to include more complex wishes regarding the compensation of the Caretaker and Trustee, as well as the distributions for your pet’s benefit, such as transportation expenses, boarding, medical care, and more.
At Samuel Sayward & Baler LLC, we recognize that pets are cherished family members. Happily, there are many options available to ensure your pet is well cared for in the event of your incapacity or death, and we will guide you through the process of determining the best way to provide for them in your estate plan. Please visit our website or call our office at (781)461-1020 to learn more or schedule an appointment. Please visit The Humane Society website for more resources and tips for planning for your pets.
August, 2023
© 2023 Samuel, Sayward & Baler LLC
Smart Counsel Series Exploring Community Resources
To our Clients and Friends:
Please join us for the next presentation in our Smart Counsel Series on Thursday, September 14, 2023, from 6:00p.m. to 7:30 p.m. virtually via Zoom, hosted by Attorney Maria Baler who will moderate a panel on community resources.
Our local cities and towns and regional organizations offer a wealth of programs, resources, and assistance to residents. These include educational, wellness and social programs, home care services, caregiver support, Medicare counseling, assistance with money management, and providing veterans with assistance to gain access to health care and financial benefits that may be available to them. Many residents are not aware of the availability of these resources until they are in need. Join us to explore these resources in detail and learn more about what is available and how they can be accessed.
We are delighted to be joined for this discussion by three individuals who assist local residents every day:
Lina Arena-DeRosa, the Director of the Westwood Council on Aging,
Sheryl Leary, the Director of Planning and Community Development for HESSCO (the Aging Services Access Point (ASAP) and Area Agency on Aging (AAA) for Southern Norfolk County, and
TJ Tedeschi, U.S. Marine Corps (Ret.), the Veteran Service Officer (VSO) for the West Suburban Veterans District which encompasses the Towns of Needham, Wayland, Wellesley, Weston and Westwood.
Please join us to learn more about the valuable resources and assistance available to you at the local level.
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
Brittany Hinojosa Citron
Megan L. Bartholomew
From Heirlooms to Hurdles: What is Ademption by Extinction and How Does it Affect My Stuff?
When you are contemplating your estate and how you would like your property distributed to your loved ones after your death, the first thoughts that may come to your mind are “I want my jewelry to go to my daughter and stay in the family,” or “my classic car should go to my brother.”
Ensuring the smooth transfer of your cherished possessions is a significant consideration when creating your estate plan, especially if you want to pass on special family heirlooms. What if you give some of your jewelry to your niece while you are alive, but your daughter expects to receive it after your death? Your actions while alive can significantly impact the distribution of your tangible personal property at your death if you do not give proper direction in your Will.
Understanding Ademption by Extinction
In Massachusetts and in many other states, the legal doctrine of “ademption by extinction” arises when a specific distribution of an asset in a Will cannot be fulfilled because the property no longer exists in the deceased’s estate at the time of death. In other words, if you state in your Will that a particular item goes to a specific person, and that item is no longer owned by your estate at the time you pass away, that person does not receive the item.
For example, if your Will states that your diamond ring will be distributed to your daughter when you pass away, and you sell the ring before your death and do not purchase another one, then your diamond ring is not held in your estate at death and, therefore, it cannot be distributed to your daughter. Under Massachusetts law, this further means she will not receive compensation or replacement for the lost property (the diamond ring), unless the Will specifically provides for an alternative arrangement. In other words, your daughter will be out of luck with receiving a diamond ring or its equivalent from your estate after your death, although there are a few limited exceptions to this rule.
Solutions to Ademption by Extinction
Given the potential complications of ademption by extinction, you should think carefully about how you distribute your tangible personal property in your estate plan. Here are some things to consider:
1. Regularly review and update your Will.
It is important to periodically review the specific distributions you made in your Will to reflect changes in your assets. When you sell your car or notice your aunt’s pearl necklace gathering dust in the jewelry box, you should review your estate plan to make sure it still aligns with your wishes to distribute that tangible personal property after your death. If you acquire valuable items, such as artwork or antiques, make sure to update your Will to specify who should receive them.
2. Provide detailed descriptions.
When distributing specific items, you should provide detailed descriptions that uniquely identify each item. For example, instead of describing an item as “my car,” you may describe it as “my red 2023 Lamborghini.” This can help prevent confusion and disputes among beneficiaries in case you have multiple Lamborghinis.
3. Create a Tangible Personal Property Memorandum.
In Massachusetts, you can create a separate document called a Tangible Personal Property Memorandum that accompanies your Will. This document allows you to specify in detail the distribution of your tangible personal property and can provide guidance to your Personal Representative when it is time to distribute items to specific beneficiaries. This memorandum is typically referenced in your Will and can include provisions that allow the memorandum to be legally binding on your Personal Representative. It is a good idea to work with an experienced estate planning attorney to make sure your distribution wishes are properly expressed in the memorandum.
You can also easily change the memorandum from time to time as you acquire and sell personal property without the need to visit your estate planning attorney every time. Keep in mind that your tangible personal property consists of items such as furniture, clothing, cars, collectibles, artwork and jewelry, and the memorandum does not distribute other assets, such as bonds, cash, treasury certificates, bank accounts, real estate, or retirement accounts.
4. Discuss your intentions.
Communication is key. Have a conversation with your loved ones and Personal Representative to ensure that they are aware of your wishes regarding the distribution of your tangible personal property.
5. Work with an experienced Estate Planning Attorney.
Estate planning laws can be complex. A qualified estate planning attorney can provide valuable guidance to help you navigate the nuances of ademption by extinction and ensure that your distribution wishes are carried out effectively.
It is important to us at Samuel, Sayward & Baler to assist you with preserving your legacy and providing you with peace of mind that your cherished possessions are passed on to your loved ones in accordance with your wishes. We can help you create an estate plan that minimizes the risk of ademption by extinction and other issues that may arise after your death by offering guidance tailored to your specific tangible personal property and how to best distribute it through your Will or otherwise.
Attorney Brittany Hinojosa Citron 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.
August, 2023
© 2023 Samuel, Sayward & Baler LLC