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Five Situations Where an Estate Is Ripe for Catastrophe

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“Handling my father’s estate after his death was a nightmare – I don’t want to leave the same kind of mess for my children.”  This is a comment I regularly hear from clients who are meeting with me to create their own estate plan because they want to make it as easy and painless as possible for their family to settle their estates after they pass away. The good news is that there are steps you can take now to ensure the administration of your estate goes smoothly.  Here are five situations where difficulties commonly arise during the administration of an estate, and what you can do now so that your children aren’t saying the same thing after your death. 

1. Unclear Tangible Personal Property Distribution Wishes

Surprisingly, or perhaps not so surprisingly, tangible personal property distribution can prolong the administration of an estate.  Tangible personal property consists of your personal items – for example, vehicles, clothing, furniture, art work, collectibles, and jewelry. I regularly assist Personal Representatives who encounter conflict among beneficiaries (recipients of estate assets) over the distribution of tangible personal property because of its sentimental value. 

One way to reduce potential conflict over the distribution of tangible personal property is to create an itemized list of your important tangible personal property and the beneficiaries to whom you wish those items to be distributed. Another way is to give away the items while you are alive and able to do so.

2. Out-of-Date Estate Plans

Your financial assets, goals and who you designate to manage your estate when you are 35 years old is likely to be different when you are 50 years old and then again when you are 70. If you appointed a family member, friend or professional as your Personal Representative or Trustee who has since died or become incapacitated, it may be difficult to find someone else willing to take on the responsibilities of administering your estate.  Additionally, the beneficiaries to whom you wish to distribute your estate after your death may be very different. Perhaps your adult children are now financially well-off and you want only your grandchildren to benefit from your estate assets. Or perhaps you intended a certain asset, such as a house, to be distributed to one of your adult children but you are now estranged from that child and prefer your house to be distributed to another. 

A good rule of thumb is that you should review your estate plan to ensure it has the appropriate people designated to administer your estate and receive your estate assets whenever the relationship, health or financial circumstances of you and/or your beneficiaries change, or about every five (5) years.

3. Blended Families with Adult Children

One specific situation that is ripe for conflict is a blended family. Oftentimes the spouses of a second or third marriage bring with them significant assets and adult children who may expect to inherit their parent’s assets soon after their parent’s death. You may unintentionally create strife between your surviving spouse and your adult children by giving your assets to your surviving spouse who uses them to pay for significant health care expenses and leaves nothing for your adult children. Or, your adult children may have poor interpersonal relationships, known or unknown to you, which may have a negative impact on the administration of your estate if an adult child is selected to be Personal Representative or Trustee.  

You can reduce the likelihood of conflict among your children and surviving spouse after your death with a prenuptial agreement and estate plan. You can enter into a prenuptial agreement that outlines what happens to your assets at your death as well as divorce. The prenuptial agreement informs and works hand-in-hand with your estate plan documents. Some couples create an estate plan together with the same estate planning attorney and others prefer to retain separate estate planning attorneys.

4. A Voluminous Number of (Forgotten) Assets

Take a moment to think about all of your assets.  Do you have any old bank accounts in another state? Or stock certificates or savings bonds tucked away somewhere?  What about one or more life insurance policies stashed in a safe deposit box only you can access? How about an ownership interest in real estate in another state with another family member? The more assets you have, the more time-consuming and complicated the administration of your estate will be.  

To make things easier on your Personal Representative or Trustee after your death, there are a few things you can do now.  Carefully consider if you need to have multiple savings accounts or if you can consolidate them.  Periodically check the unclaimed property divisions of states in which you have resided for stock dividends or forgotten bank account balances and file a claim to obtain the property. Create a list of all your assets, update it regularly and let a trusted family member or friend (and your estate planning attorney!) know where to find the information in case something happens to you.

5. Do Nothing

A guaranteed, surefire way to make the administration of your estate difficult is to do absolutely nothing. It may result in forgotten assets appearing later which will require a late and limited probate proceeding. Doing nothing could lead to your estate assets passing to distant relatives, if any, or to the Commonwealth of Massachusetts. Doing nothing may cause a public administrator to be appointed to administer your estate in a way you did not intend.

Do something. If you are reading this article, you have already taken an important first step to learn more. Now take the next step and meet with an experienced estate planning attorney to create or update your estate plan. 

A knowledgeable estate planning attorney will guide you through the steps necessary to avoid leaving a mess for your family to deal with after your death. From advising you to designate the appropriate beneficiaries of your retirement accounts to creating an estate plan for your blended family to periodically getting in touch with you to remind you to review and update your estate plan, the attorneys at Samuel, Sayward & Baler LLC are here to assist you so that the next generation will visit their attorney and say, “my father had his estate plan in place and made it easy for us to administer – I want to do the same for my children.”

Attorney Abigail V. Poole is an 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 Vice President of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (NAELA).  This article is not intended to provide legal advice or create or imply an attorney-client relationship. No information contained herein is a substitute for a personal consultation with an attorney. For more information visit www.ssbllc.com or call 781/461-1020. 

November, 2021

© 2021 Samuel, Sayward & Baler LLC

October is National “Special Needs” Law Month!

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October is Special Needs Law Month, the purpose of which is to to educate those with special needs, their families, and caregivers about ways to protect their rights and advocate for those with special needs.

For estate planning attorneys, it is an opportunity for us to remind those who have a loved one with special needs, of the importance of planning for that individual’s future. In particular, parents of special needs children should ensure that their estate plan will make appropriate provisions for the special needs child when they are no longer living, and for any assets that child will inherit, to ensure the inheritance does not adversely impact any benefits the child may be receiving.

The attorneys at Samuel, Sayward & Baler are active members in the Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA). Established in 1987, NAELA is a non-profit association whose mission is to be the premier provider of legal advocacy, guidance and services to attorneys to help them enhance the lives of individuals with special needs, and individuals as they age. MassNAELA’s mission is to be a leader in both elder law and special needs law in Massachusetts. In celebration of Special Needs Law Month, MassNAELA has created the Special Needs Advocacy Toolkit to help individuals and families promote the rights and well-beings of those with special needs.

At Samuel, Sayward & Baler, we assist clients who have family members with special needs, in designing an estate plan that will ensure their family member is provided for in ways that protect eligibility for public benefits, and address other important issues. We also work with disabled individuals to ensure they have appropriate planning documents in place to allow loved ones to assist them as needed, and to manage their own assets if appropriate.  Special needs trusts, powers of attorney, health care proxies and HIPAA authorizations, are all important documents that we discuss and implement for these clients. If you have questions about the legal documents that you or a family member with disabilities should have in place, please make an appointment to meet with one of our attorneys.

Better Late than Never: What Happens When You Wait More than 3 Years to Administer an Estate

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Dealing with the death of a loved one is often a stressful, emotionally draining experience. In the midst of grieving the loss, going through the steps necessary to clear title on Aunt Jenny’s house or ensure that dad’s checking account is taken out of his name is often the last thing a person wants to deal with. Frequently, once the grief is less acute, loved ones will circle back and take the necessary estate settlement steps to ensure that everything is out of the decedent’s individual name, but occasionally this does not happen and assets are instead allowed to linger on in the decedent’s name.

In such situations, there is usually a “triggering event” that causes someone to realize that no action was taken. Maybe everyone was content to let cousin Becky live in grandpa’s house (which he held in his individual name) for a while after his death, but now that she’s moved out everyone agrees it’s time to sell, or maybe Mark decided to check the state’s unclaimed property site (www.FindMassMoney.com, FYI) and on a lark entered mom’s information only to discover mom had a bank account in her individual name that everyone forgot about. Whatever the reason, it’s now been several years since the person died and the question on the table is “What can be done to get access to this asset?”

If the loved one died prior to March 31, 2012, then the answer is likely simple: file for a standard probate proceeding just as would be done if the death occurred yesterday. This is because under the law in effect through March 30, 2012, probate proceedings could be initiated in Massachusetts up to 50 years after a person died. However, on March 31, 2012, the Massachusetts Uniform Probate Code went into effect, substantially overhauling the laws governing probate proceedings in Massachusetts. Among the changes was a drastic shortening of the time limit to initiate standard probate proceedings for those who die on or after that date – from 50 years after death to just three years after death.

Fortunately, this 3-year deadline does not mean that grandpa’s house is destined to stay in his name forevermore, unable to be sold or conveyed ever again. Nor does this deadline mean that the state gets a windfall in the form of mom’s unclaimed checking account. Although the deadline to file standard probate proceedings is three years after death, the law permits a special type of probate proceeding, known as a “late and limited” proceeding, to be filed more than three years after death.

As can be gleaned from its name, a late and limited probate proceeding is, well, limited in its scope. Unlike a standard probate proceeding, where the Personal Representative (formerly known as the Executor) has broad authority to deal with the decedent’s probate assets, including taking possession of them and, in some circumstances, selling them, a Personal Representative in a late and limited proceeding only has the authority necessary to confirm that the assets held in the probate estate are now owned by the decedent’s heirs (if the decedent died without a will) or devisees (if the decedent died with a will).

As an example, a standard Personal Representative generally has the authority to unilaterally sell real estate without the consent of the estate’s beneficiaries. A late and limited Personal Representative, on the other hand, generally cannot sell real estate. Instead, the late and limited Personal Representative would confirm that the real estate is now owned by the beneficiary(ies) of the estate, and the beneficiary(ies) would then have to sell the property.

Of course, the best option is to establish an estate plan ahead of time that avoids probate and having the deceased’s estate go through the probate process at all. If that has not been done, and the deceased owned assets in his or her individual name at the time of death, it is generally better to initiate probate proceedings within three years of death. If that’s not possible, worry not, late and limited proceedings are still available to gain access to assets when necessary.

October, 2021

© 2021 Samuel, Sayward & Baler LLC

Ask SSB

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Q: What is probate and why does everyone want to avoid it?

A: Probate is the court process of changing the title on an asset when someone passes away. Real estate, bank accounts, and investment accounts owned in a person’s individual name at death which do not have a beneficiary designated are examples of assets that need to be probated. The term ‘probate’ is often used to describe the process of administering someone’s estate after death. This typically involves marshalling the probate assets, paying debts, taxes and expenses, and ultimately distributing the estate assets to the beneficiaries entitled to receive them.

Delays, costs, aggravation, and loss of privacy are all good reasons to avoid probate. If an asset needs to be probated, that means no one will have access to that asset until the court has allowed the probate petition and a Personal Representative has been appointed. A delay in being able to access money to pay expenses such as funeral costs or to make mortgage payments creates a difficult and aggravating situation for surviving family members who are trying to manage matters after someone has passed away. In Massachusetts, the probate court system is currently in serious disarray and delays are significant. Probate can be costly, with attorney fees and court filing fees that must be paid. Finally, probate is a public proceeding meaning that anyone who wants to snoop into the business of a decedent’s probate estate has the opportunity to do so.

Avoiding probate is relatively easy. For example, if you own assets jointly with your spouse or child, the asset will pass automatically and entirely to the survivor when the first joint owner passes away; no probate would be needed. Assets that have a named beneficiary to receive them also avoid probate provided the named beneficiary survives the owner of the asset. IRAs and other retirement accounts, life insurance, and annuities typically fall into this category. Assets that are titled in the name of a Trust also avoid probate. While owning assets jointly with another person is a way to avoid the need to probate the assets there are some downsides to joint ownership that should considered before adding someone else as an owner on your account.

Probate: Haunting Your Family from Beyond the Grave – Webinar October 28th 6PM

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Grab your coziest blanket and mulled spiced cider to settle in for a spooky presentation about probates of the deceased that haunted their families from beyond the grave! Join Attorney Abigail V. Poole for our next Smart Counsel webinar where she will discuss probate and non-probate assets, the different types of probate, the process of probate, and how to avoid probate so that your family is not haunted by your ghostly presence forevermore.

In addition to hearing from her, attendees will have the opportunity to ask questions.

Join us virtually for our next Smart Counsel presentation on Thursday, October 28, 2021, from 6:00 p.m. to 7:00 p.m.

Contact Victoria Ung at (781) 461-1020 or ung@ssbllc.com to reserve a spot for you and a friend.

The program is free but registration is required.

Suzanne R. Sayward
Maria C. Baler
Abigail V. Poole

Samuel, Sayward & Baler LLC Supports Westwood Council on Aging with Dining Out Gift Basket

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Samuel, Sayward & Baler LLC will be participating in the Westwood Council on Aging’s Fifth Annual Holiday Raffle, which begins today and runs through mid December. Each basket is worth over $250. Tickets are $1 each or $10 for 12 tickets and can be bought at the Westwood Senior Center.

Samuel, Sayward & Baler LLC is donating a “Dining Out Gift Basket” made up of $50 Gift Cards to Anthony’s Coal Fired Pizza, Conrad’s, One Bistro, The Chateau & The Toast Office. Valued at $250.  100% of the donations will be used to underwrite Westwood Council on Aging programs and to help seniors in Westwood.

Five Things to Consider When Choosing a Guardian for Minor Children

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By Attorney Maria C. Baler

For parents of minor children, one of the most important reasons to create a Will is to name a guardian for your children if you pass away while they are still under the age of 18. A guardian is a person who will be appointed by the Court to have custody of your children. The guardian is the person who will make decisions regarding where your children live, where they go to school, and their health care. If one parent dies, there is no need to have a guardian appointed where there is a surviving parent unless that parent is unfit. However, if both of a minor child’s parents are deceased, a guardian needs to be appointed. Here are some things to consider when deciding who to name as guardian for your children

1. No One Will Be as Good as You

Choosing a guardian for your minor children is hard. No parent wants to imagine a world where they are not there for their children as they grow up. However, it is a parent’s job to keep their kids safe and well cared for, and naming a guardian is part of being a parent. It is your one opportunity to choose the person who will raise your children if you can’t. The first thing to remember is that no one will do as good a job as you. Don’t waste time lamenting that you can’t think of anyone that will be the perfect substitute parent for your children – there is likely no one like that. Instead, try to choose a person who shares the values that are important to you – whether those values are around education, religious upbringing, cultural traditions, etc. If your children are old enough, try to choose someone your children know and like and enjoy spending time with. You should also consider the age of the person you are naming and whether they will have the time and energy to be an active participant in your children’s lives until they become adults.

2. Considerations When Naming Married Guardians

If the guardian you have in mind is married or in a long-term relationship, consider whether you want to name both spouses/partners as co-guardians. This is appropriate if you would want both people to make decisions on matters concerning your children, and if you would still want either of them to continue to serve as guardian if the other passes away while your children are still under the age of 18. If only one member of a married couple is the person you want to be guardian, then name only that person as guardian. Your Will should specify who your choice for guardian would be if the first person is not able to serve as guardian for any reason.

3. Considerations for School-Aged Children

When my son was young, I knew that if something happened to my husband and me, I would want him to continue to live in our home and attend the same school he did when we were alive. This type of stability can be important in the aftermath of the death of a parent, especially if a strong support system exists in the community in the form of teachers, coaches, neighbors and friends. The older your children are, the more important this can be given longstanding friendships, sports and other extracurricular activities that your children would want to continue. If it is important to you that your children continue to live in your community and continue to attend school there, consider naming a guardian who would be able to move into your home and continue to live there with your children. If that’s not possible, consider naming a guardian who already lives in your community and who would take your children into their home to live.

4. Considerations for Divorced Parents

If you are a divorced parent of minor children, naming a guardian for your children is no less important. If one parent dies, the child’s surviving parent will be the child’s natural guardian unless it can be shown that the surviving parent is unfit. For many divorced couples who share custody and successfully co-parent their children, this makes sense, and each parent should create a Will naming the other as the primary guardian for their child, and an agreed-upon person as the alternate guardian if both parents are not living or are otherwise unable to act as guardian.

In situations where one parent feels the other parent is unfit to serve as guardian, it is important to make this clear. In your Will, you should name someone other than the other parent as guardian, and be specific that it is your wish that the surviving parent not be appointed as guardian for your child. It is not enough to just make this statement; you would need to leave documentation evidencing the reasons why the surviving parent is unfit. Document these facts in a document separate from your Will, share your knowledge with trusted people and with the Personal Representative you have named in your Will, and ask those people to come forward and share their knowledge if the surviving parent asks the Court to be appointed as guardian instead of those you have named in your Will.

5. Just Name Someone!

Naming a guardian for your minor child is one of the most difficult decisions you will make. Fortunately, it is unlikely that the guardian will ever need to step in, as it is likely you will live until your children are well past the age of 18. However, if you don’t, naming a guardian is arguably the most important thing you can do to ensure your child’s well-being. Despite its importance, I have seen many parents completely paralyzed by this decision – unable to agree on who they should name as guardian for their child. To these parents I say – Just Do It! Come to a compromise and name someone who is right for your children at this moment in time. As your children grow and change, a different person may be more appropriate, and your Will can be changed to name a different guardian at a later date. Naming someone is better than naming no one. If you die without naming a guardian for your children, the Court will have to choose among the people who ask to be appointed. And you know how that goes – undoubtedly, your least favorite sister-in-law will think she is the best candidate to raise your children and if no one objects she will get the job.

You know your children best, and know who you want to raise them if you can’t. So go ahead and make a choice. Get in touch with an estate planning attorney and create a Will that names a guardian for your children. That person will not be perfect, but it will be someone you have chosen. Naming a guardian now will also give you the opportunity to discuss things with the person you name, and create Letters of Instruction for them that describe your hopes and dreams for your children’s future. All of this will give your children the greatest chance of living their best life, even if it is without you.

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 current 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.

October, 2021
© 2021 Samuel, Sayward & Baler LLC

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

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