Lynne Abe discusses our new In office meeting procedures 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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Too Much Togetherness: Divorce and Estate Planning in the Time of COVID-19
Among the tales of unfortunate fall-out from COVID-19 are those I hear from my family law colleagues about the number of couples deciding to divorce. Not surprisingly, three months of home confinement with your spouse will bring some clarity to how compatible two people really are. For those who are going through a divorce or divorce mediation, or those advising them, it is important not to lose sight of the importance of an up-to-date estate plan amidst the emotional and legal challenges a divorce brings.
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, an important interim step for divorcing parties is to create updated Powers of Attorney for legal and financial decision-making, and Health Care Proxies for health care decision-making, so that a trusted individual, and not an estranged spouse, will make those types of decisions in the event of incapacity during the pendency of the divorce.
The law does provide some assistance in “modifying” 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 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 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.
Once a divorce is final, each party should review their existing estate plan and beneficiary designations 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 a 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.
And let’s not forget that many divorced people go on to find love again. Estate planning for blended families is just as important. Re-marriage brings its own set of estate planning challenges, especially if the 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 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.
Whether divorce is a sad event or a welcome new beginning – or maybe both – estate planning is more important than ever during and after a divorce, to avoid unintended results and ensure children and other family members will benefit as you intend.
The CARES Act impacts retirement account withdrawals in 2020 – in a good way!
Attorney Suzanne Sayward talks about how The CARES Act impacts retirement account withdrawals in 2020, for our new Smart Counsel for Lunch Series. Please watch and if you have questions or want to learn more please call us at 781 461-1020.
Five Things To Do Soon After A Loved One Passes Away
Although the number of COVID-19 cases is surging in other parts of the country, thankfully here in Massachusetts we continue to see a slow and steady decline. Hopefully, this trend will continue. Nevertheless, there are sadly still individuals who are becoming infected with COVID-19 and dying from complications due to the virus, reluctance to seek treatment for other health issues, or for a myriad of other reasons. What should I do when a loved one passes away may be a question that you unfortunately have to ask yourself. Whether a loved one’s passing is expected or unexpected, managing his or her affairs can be difficult to think about while dealing with the grief and loss of a loved one. Here are five steps to provide some guidance on what to do soon after a loved one’s death, in no particular order:
1. Arrange Burial and Memorial Services According to the Loved One’s Wishes
If the deceased was forward-thinking enough to pre-arrange and/or pre-pay his or her funeral when also preparing his or her estate plan, then contact the funeral home with which these arrangements were made. If no plan was put in place before death, contact a reputable funeral home to guide you through the burial and memorial service process. Keep in mind that currently funeral homes are open for business but have adjusted to function within the Governor’s pandemic guidelines. This generally means that services may include no more than ten family members. Several of my clients have decided to hold off on a memorial service until such time that it is possible to host a larger gathering in honor of their loved one.
As part of an estate plan, the deceased may have prepared a Directive as to Remains. A Directive as to Remains is a document that instructs the deceased’s Personal Representative (Executor) to arrange the deceased’s burial or cremation and funeral/memorial services as directed in that document. Your loved one alternatively may have written down similar wishes in a letter of instruction. Carefully review your loved one’s estate planning documents to learn if the deceased left such instructions so that his or her wishes are carried out.
2. Find and Organize Important Documents
Hopefully your loved one showed you where he or she keeps important documents like his or her Will, income tax returns, financial account statements and bills that are regularly paid. This information will be necessary for the proper services and administration of the deceased’s estate. Locate a safe but easily accessible place where you can store this information as you will refer to and use it often. Do not throw away any financial records or legal documents until you know you will not need them for tax filings, asset valuation, or other purposes.
3. Secure Property of the Estate
Your loved one may have several different types of assets in his or her estate at death. In every case, the Personal Representative (or Trustee if there is a Trust) is responsible for ensuring the deceased’s property is secure and protected for the beneficiaries of the estate. For example, it is important to safely store valuable jewelry and artwork. Similarly, any real estate should be securely locked (perhaps even change the locks) and regularly visited. In fact, it is an obligation of the Personal Representative to do so, and he or she may be liable if such measures are not taken and damage occurs to the property. The Personal Representative should also maintain or obtain insurance in connection with the deceased’s assets, as necessary, and may need to have some or all of them appraised for estate administration and/or estate tax purposes.
4. Contact an Estate Planning and Administration Attorney
The settlement of an estate can be incredibly complex depending on the assets and beneficiaries involved, and the provisions of the deceased’s estate plan. The Personal Representative should contact an attorney to guide and assist him or her through the process of completing and filing the required documents to be appointed as Personal Representative by the probate court, gathering assets, paying appropriate expenses, and making distributions, to avoid failing to fulfill his or her obligations. This is especially important if the estate assets are valued at over $1 million and a Massachusetts estate tax will be payable, or if it is anticipated that MassHealth (Medicaid) may file a claim against the estate to be reimbursed for any MassHealth benefits (for home care or nursing home care) received by the deceased during his or her lifetime.
Keep in mind that the administration of an estate typically takes at least one year so you may want to take the tortoise’s point of view – slow and steady wins the race.
5. Communicate and Work Together
On top of the issues mentioned above, estate administration can be made more difficult if there are strained relationships between the beneficiaries, which often also includes the person who is serving as Personal Representative. Perhaps there is a history of family disharmony. Perhaps multiple beneficiaries are sentimentally attached to mom’s diamond engagement ring and they must decide who gets to keep it. The only person who wins when there are disagreements between beneficiaries that cannot be resolved is the attorney who gets paid to resolve them via negotiation or court action. Instead, consider embracing the three C’s as much as possible when working with each other: Communication, Cooperation and Compromise.
Estate administration can be a juggling act where the Personal Representative is managing several different responsibilities all at once, including fulfilling the wishes of the deceased and the Personal Representative’s obligations to the beneficiaries. An estate planning attorney knowledgeable in the process of estate administration can guide you through that process in a correct and efficient manner, so that you have peace of mind when all is complete, hopefully with family relationships intact, which is most likely what your loved one would have wanted when setting up his or her estate plan.
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 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.
July, 2020
© 2020 Samuel, Sayward & Baler LLC
Samuel, Sayward & Baler LLC In-Office Meeting Protocols
As we begin to return to some semblance of normalcy, including conducting in person meetings in our office, our primary concern remains the safety of our clients, our team members and anyone else coming into the office. Please read the following carefully before coming into the office and contact us if you have any questions.
- When coming to the office for a meeting, please call the office upon arrival and before coming upstairs to ensure adequate social distancing while in the office.
- Everyone entering the office must wear a face mask (masks are available for client use, if needed).
- Upon entering the office, you will be asked to wash your hands or use hand sanitizer before being seated in the conference room.
- Please respect social distancing measures when seated in the conference room.
- All contact surfaces in the conference room are thoroughly cleaned and sanitized following each appointment.
Before coming to our office, we request that you ask yourself the following questions and if you answer YES to any question, please re-schedule your appointment.
- Do you feel unwell? Do you have a fever, cough, runny nose, sore throat, or are you experiencing shortness of breath or difficulty breathing? Recent loss of taste or smell?
- To the best of your knowledge have you been in close proximity to any individual who has recently tested positive for COVID-19?
- Do you have any reason to believe you or anyone in your household has been exposed to or acquired COVID-19?
Peace of Mind Comes from Estate Planning
What a great phrase, ‘peace of mind’. It evokes feelings of all being right with the world, or at least your world. These days peace of mind is an elusive feeling, and given the state of the world it seems likely that this will remain the case for some time. Many of us are walking around (but only in our houses and neighborhoods!) in a state of perpetual anxiety. If you search the internet you can find a number of websites offering tips for reducing stress and anxiety many of which recommend:
- Getting some exercise
- Meditating
- Focusing on your breathing
- Taking action
Taking action can mean doing something to distract from the anxiety such as calling a friend or watching a video of baby goats (so cute!), or it can mean doing something to address a source of that anxiety. For those of us who are not research epidemiologists, there is not too much action we can take to address the source of our anxiety about COVID 19. However, there are those ‘un-done’ things floating around in our brains that create a level of stress and anxiety that we can take action about. Things like repairing that broken step on the deck, digitizing 20 years’ worth of photographs, or finishing up the income taxes. These circle around quietly in our heads until something happens that brings them to the front of the ‘must-do’ list, such as someone is injured on the step or the deadline for filing the taxes is critically close (hello July 15th).
Estate planning is often one of those ‘un-done’ matters floating around in our brains. Everyone knows they should create a Will and other documents that will make it easier for their families to carry on if they become incapacitated or when they pass away, but that type of estate planning is often put on the back burner where it simmers quietly until it erupts into a full boil because of some triggering event. This event might be the birth of a child, a change in marital status, retirement, diagnosis of an illness, or a global pandemic.
Not having an up-to-date, comprehensive estate plan creates anxiety because we know that this omission puts us at risk and our families at risk. The good news is that like digitizing your photos, or finishing up your taxes, you can create an estate plan that will minimize or eliminate these risks. Move your estate planning and legacy planning from the ‘un-done’ list to the ‘accomplished’ list and find some of that peace of mind that is so elusive these days.
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 http://ssbllc.com or call 781/461-1020.
June 2020
© 2020 Samuel, Sayward & Baler LLC
Smart Counsel Thank You from Attorney Suzanne Sayward
Smart Counsel for lunch presents Attorney Suzanne Sayward thanking everyone for watching and responding to our video series.
Five Requirements of a Valid Will
On June 8, 1948, a Canadian farmer was pinned beneath his tractor. He was discovered 9 hours after the accident and rushed to the hospital, where he later died.
A few days later, it was discovered that the farmer had scratched his Will into the fender of the tractor using his pocket knife. He had written, “In case I die in this mess, I leave all to the wife.” The fender was later removed and submitted to the Canadian court as a valid holographic Last Will and Testament.
What is a holographic will? The definition of a holographic Will, is a will and testament which has been entirely handwritten and signed by the testator. In the document, the testator (the author of the Will) must be expressing a wish to direct the distribution of his or her estate to beneficiaries.
Although the law in Massachusetts does allow handwritten wills, the Will etched by the farmer onto his tractor fender would not have been valid in Massachusetts as it was not executed with the legal formalities required by Massachusetts statutes.
Normally the task of drafting a will is best accomplished by a lawyer for wills and trusts, but when it is not, certain requirements must be met for a will to be legal in Massachusetts. A Last Will and Testament is a document that allows you to determine who will manage your estate at your death, who will inherit your assets, how and when your assets will be distributed, whether assets will be placed in trust, and who will care for your minor children. It is important to draft a will to ensure that your wishes are known and legally acknowledged. Without a Will, the laws of your state will decide who may manage your estate, who will inherit your assets, and how and when your assets will be distributed. This may not align with your intentions so we do not recommend relying on what is called the “Intestacy Statute” of your state.
In Massachusetts, there are several requirements for a Will to be valid:
1. The will must be in writing. This could include handwriting, but generally they are typed. Massachusetts does recognize nuncupative (oral) wills but only if made by a person who is in active military service or a mariner at sea. The oral Will may only be created in order to dispose of personal property. Real property cannot be transferred through a nuncupative will.
2. The will must be signed and dated by the Testator (the person making the will). If the Testator is not able to sign, someone else can sign on the testator’s behalf at the direction of the Testator and in his presence. This person cannot be one of the witnesses.
3. The will must be signed by two disinterested witnesses. Disinterested means they are not beneficiaries or potential beneficiaries of the will. In Massachusetts, a person of “sufficient understanding” shall be deemed competent to be a witness to a Will. If a witness to a will is competent at the time of his attestation, his subsequent incompetency shall not prevent the probate and allowance of such will.
If a Will is witnessed by an “interested person” the Will itself is not deemed to be invalid but the gift/bequest to the interested party and/or his or her spouse is deemed to be void.
4. The person making the will must have the mental capacity to do so. This is often called “testamentary capacity.” More specifically, the following must be true:
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- The testator must be at least 18 years old;
- The testator must be free of undue influence or duress;
- The testator must know he is signing his will and intends to do so;
- The testator must have read, or have an understanding of the provisions of the will; and,
- The testator must be of “sound mind” which generally means he knows ‘the natural objects of his bounty’ (i.e. who his family is) and has a general understanding of the nature of his assets.
5. A handwritten will signed by the testator that meets all of the above requirements can be valid under Massachusetts law. So, in a sense, one might say that Massachusetts does permit handwritten wills or holographic wills but only if the Will was executed with the formalities outlined above.
Although a fender of a tractor might be a unique place to inscribe your final wishes, we would prefer that you work with your estate planning attorney to draft your will and reduce your wishes to plain old paper, and to ensure that the writing of your will is executed properly and in accordance with the legal formalities of the Massachusetts statutes.
This article is from the estate planning and elder law firm of Samuel, Sayward & Baler LLC, based in Dedham. For more information, visit www.ssbllc.com or call (781) 461-1020. This article is not intended to provide legal advice or create or imply an attorney-client relationship. No information contained herein is a substitute for a personal consultation with an attorney.
June 2020
© 2020 Samuel, Sayward & Baler LLC
What’s the difference between a Will and a Trust?
Attorney Suzanne Sayward discusses the difference between a Will and a Trust 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.