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Smart Counsel Webinar – Fraud Prevention in the 21st Century – What You Need to Know to Keep Your Information Safe

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Join us for our next Smart Counsel webinar on Thursday, February 24th when Norfolk County District Attorney Michael Morrissey and Senior Affairs Coordinator Gayle Bellotti, will share their expertise on fraud prevention, cyber hacking, scams and identity theft. 

Attorney Maria Baler will round out the panel and will speak to the importance of having updated estate plan documents that permit trusted individuals to assist you if necessary, including the ability to access your digital assets. 

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

Join us virtually for this presentation on Thursday, February 24, 2022 from 6:00 pm to 7:30 pm.  

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  

Francis R. Mulé

Megan L. Bartholomew

Ugly Sweater Contest Results and Probate Court Delays Persist

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The recent increase in positive COVID-19 cases in the Commonwealth of Massachusetts due to the significantly contagious nature of the latest variant and other factors have led to a reduction of in-person staff at the trial courts, including the probate courts. As ordered by the Chief Justice of the Trial Court, the probate courts have decreased the in-person staff to fifty percent (50%) or less of the total number of staff, and placed staff members on teams that rotate between working remotely and in-person at the office for the health and safety of staff and visitors.  This Order is in effect from January 3, 2022, until further notice. The courts remain open to the public for in-person visits unless they are temporarily closed, which closures are noted on this Massachusetts government website, and this Twitter account.

Why Does This Matter to You?

If you are already experiencing holdups in the progress of a probate matter, please be aware that there may be further delays. Likewise, if you are about to file pleadings (the documents that are filed with the Court asking the Court to take some action) in an ongoing matter with the probate court, it may take much longer than usual to receive the response or documentation requested.  In our experience, where the initial appointment of a Personal Representative of an estate may have taken 3 to 4 months in the past, we are now waiting up to 6 months or longer for this to occur.

What Are We Doing About It?

Once we submit pleadings to the probate court, we track the progress of your case electronically. We also contact the probate court representatives regularly by telephone, video conference and in-person when possible to be proactive in the event there is an issue that may be easily resolved, and to gently but firmly encourage forward movement on your behalf.

What Can You Do About It?

Have patience.  The courts are aware of the frustration and impact caused by the delays as they struggle to address the backlog of cases and meet increased demand while keeping their staff and visitors healthy and safe. 

Also, seriously consider completing your own estate plan that avoids probate by creating and funding one or more Trusts, which will allow your estate to bypass the probate court at your death. 

Now more than ever is a good time to include a Trust as part of your estate plan.  At Samuel, Sayward & Baler LLC, a knowledgeable attorney will explain how a Trust works and the steps you need to take in order to ensure your estate avoids probate at your death.  If probate is necessary, Samuel, Sayward & Baler LLC will diligently work with the probate court to advance your probate case through the administration process as quickly as possible.

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 trust and estate planning, estate settlement and elder law matters. She is an active member and current 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 ssbllc.com or call 781/461-1020. 

January, 2022

© 2022 Samuel, Sayward & Baler LLC

5 Frogs to Eat in 2022

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Mark Twain is attributed with saying, “Eat a live frog first thing in the morning and nothing worse will happen to you the rest of the day.” This advice is commonly interpreted to mean that in prioritizing the tasks that need to be completed to achieve a goal, you should tackle the task that is hardest first. ‘Hardest’ in this context does not necessarily mean most difficult – it means hardest for you. ‘A frog’ could be something you find extremely boring to do, or a task you just don’t like to do such as filling out forms.

In my practice, I meet with clients to help them achieve their estate planning goals. A paramount goal for many clients is to make the estate settlement process as easy as possible for their loved ones when they pass away. Creating an estate plan (Will, Trust, etc.) with an experienced estate planning attorney is a critical component to achieving this goal. However, simply signing a Will, Trust, and other estate plan documents is generally not sufficient to achieve the goal of making the settlement process as easy as possible. Read on for five important tasks that you can do to make things easier for those you leave behind.

1. Review and Update your Beneficiary Designations. The owner of assets such as life insurance, retirement accounts, and annuities, may designate beneficiaries to receive these benefits when the owner dies. Beneficiaries may be individuals or Trusts. When we work with clients to create or update their estate plan, we provide written instructions for designating beneficiaries. Following that advice and properly completing and filing the forms with the financial institution or life insurance company is critical to ensuring that the estate plan works as intended. It is a good idea to confirm those beneficiary designations from time to time as well since it is not uncommon that when financial advisors move from one company to another, or when employer-sponsored retirement plans change custodians, the beneficiary designation does not carry over. Requesting written verification of your beneficiaries and maintaining that confirmation with your records is advisable.

2. Organize your Asset Information/Documentation. We work with many clients on estate and trust settlement matters who find the most frustrating aspect of this process to be their inability to find information and documentation about the decedent’s assets, debts, or benefits. To make this process easier for your family, maintain a comprehensive list of your assets including bank accounts, IRAs, brokerage accounts, life insurance, annuities and any other assets you have or that your family or estate would be entitled to receive at your death. Keeping a complete copy of a recent statement for each account with that list is extremely helpful for those who will be handling your affairs if you become incapacitated or following your death. Including contact information for advisors and agents is also very helpful.

3. Make sure your assets are properly titled in your Trust. A Trust is an excellent estate planning tool for many people because it can be used to accomplish many goals including probate avoidance and estate tax savings. However, simply creating a Trust will not in itself achieve those goals; it is necessary to “fund” the Trust by titling assets in the name of the Trust or designating the Trust as the beneficiary of assets such a life insurance. Avoiding probate really does make the estate and Trust settlement process much easier, so take that the time to fund your Trust. Your estate planning attorney should provide you with instructions for funding your Trust consistent with your estate plan.

4. Maintain an updated file with information that would be useful to your family. In addition to maintaining a file with asset information and account statements as noted above, here is some other information that will be useful for your family to have if you were suddenly unavailable:

a. A list of the bills you pay each month (i.e., mortgage, car loan, utilities) along with those paid less frequently (i.e., life insurance, real estate taxes, etc.);
b. A list of employers from whom you receive, or from whom your beneficiaries may be entitled to receive, pension or other group benefits;
c. Information regarding your health insurer, including any long-term care insurance policies;
d. A list of your active credit cards, along with any rewards programs;
e. Access information for safe deposit boxes or storage facilities;
f. A list of your online accounts, user names and passwords; and,
Home alarm codes and contact information for the alarm company.

This is not an exhaustive list, but is intended to help you start thinking about what your family would need to know. Pay attention to the tasks you handle for your household and ask yourself, what would someone need to do this?

5. Meet with your estate planning attorney every 5-7 years to review your estate plan and update it as necessary. Your estate plan is not a ‘one and done’ event. As long as you’re alive, your situation will change, the laws will change, and your goals may change. It is important that your estate plan reflect your current situation if you want your wishes to be carried out and to make settlement of your estate as easy as possible for your loved ones. Reviewing your estate plan with your attorney every 5-7 years is a good benchmark timeframe, but reviewing things more frequently may be appropriate if your situation warrants it.

Many will view the above tasks as ‘frogs’ and you are not wrong in that view! However, undertaking these tasks will go a long way toward achieving that goal of making the settlement of your estate as easy as possible for your family. So, take the advice of Mark Twain and resolve to eat one of those frogs first thing every morning until they are all gone – you (and your family) will be glad you did.

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, 2022
© 2022 Samuel, Sayward & Baler LLC

Congratulations to Our Amazing Associates

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We know that our Associate Attorneys Abigail Poole and Frank Mulé are smart, thoughtful and caring people and excellent attorneys, but it is good to know that others have noticed that too and that they are being recognized for it!

We want to take this opportunity to congratulate Frank and Abby for the recognition they have received this year:

  • Both Abby and Frank have been chosen as Massachusetts Super Lawyers / Rising Stars for 2021 in the area of Estate Planning.  Rising Stars are attorneys under the age of 40 who have distinguished themselves in their practice area.
  • Abby has been named the Chapter Member of the Year by the Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA).  Abby has been an active member of MassNAELA for many years, and currently serves as the Chapter’s Vice President, as the co-chair of the Membership Committee, as a member of the Special Needs Steering Committee. Abby is the President-Elect of MassNAELA for 2022, and will become the Chapter’s President in 2023.  
  • Frank has been named as the 2021-22 Chair-Elect of the Young Lawyers Division of the Massachusetts Bar Association, and will assume the Chair in 2022-23. The Young Lawyers Division has over 2,600 member attorneys and organizes regular continuing legal education programs and networking events in support of members of the Bar who have been practicing for 10 years or less.

We are proud of Frank and Abby, and happy that they are receiving the recognition they deserve as up-and-coming leaders and knowledgeable and experienced attorneys in the areas of Estate Planning and Elder Law.

Congratulations!

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.

December, 2021

© 2021 Samuel, Sayward & Baler LLC

Five Things to Discuss with Your Aging Parents This Holiday Season

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Though it may be hard to believe, it is once again December, the time of year when the days grow shorter, the weather grows colder, and a variety of religious and secular holidays and traditions call on us to get together to celebrate with family and friends, many of whom we may only see once or twice a year. For those who live far from family, this time of year frequently involves traveling to see relatives in person, possibly for the first time in a long time in light of the fact that the COVID-19 pandemic meant that many of us had to scale back or even cancel our cherished celebrations last year. I personally am looking forward to seeing many relatives and friends who I have not seen since 2019. 

Although it’s not always the easiest topic to discuss, this time of year can be a great opportunity to talk to your parents (and/or other close relatives) about ensuring that they have plans in place for what happens both after they die and in the event they become incapacitated during life. In particular, you should consider discussing:

1. Your Parents’ Comprehensive Estate Plan. Having a comprehensive, up-to-date estate plan in place is important both because it puts your parents in control of what happens after their deaths and during periods of incapacity and because, if properly structured, it avoids costly, intrusive, and time-consuming court proceedings.

A comprehensive estate plan consists of, at a minimum, Wills to dispose of your parents’ probate assets after death, durable powers of attorney to permit someone chosen by them to manage their financial affairs if they become incapacitated, health care proxies to permit someone chosen by them to make medical decisions on their behalf if they become incapacitated, and HIPAA release authorizations to permit your parents’ health care providers to disclose and discuss their protected medical information with those listed in the document. A comprehensive estate plan often also includes one or more revocable living trusts, which can allow the creator(s) of the trust(s) (the “Grantor(s)”) to avoid the probate process after death and streamline the management of assets during life. Properly structured revocable trusts can also, in the case of a married couple, minimize or even eliminate the estate taxes due upon the death of the surviving spouse.

If your parents do not have an up-to-date, comprehensive estate plan in place, you should encourage them to speak with an attorney who practices in the area of estate planning to set one up.

2. Your Parents’ Plans Regarding Long-Term Care. The seemingly ever-increasing cost of long-term care, not to mention the different options available, is often a source of significant stress and worry for people as they age. Generally speaking, there are three ways to pay for long-term care: (a) paying privately; (b) purchasing long-term care insurance to cover a portion of the costs; or (c) qualifying for needs-based government assistance through Medicaid, which has strict financial requirements. Each option has its own pros and cons, and not every option is available in every situation. Medicaid, for instance, will typically cover 24/7 long-term care in a nursing home and will often cover some amount of home care (though usually not 24/7 home care), but will only very rarely cover care at an assisted living facility. 

If your parents are concerned about long-term care or would like to know more about their options, you should encourage them to speak with an experienced elder law attorney about these issues. It is important to understand the different long-term care options as well as what advance planning strategies are available and appropriate.

3. Your Parents’ Wishes Regarding End-of-Life Medical Care. Modern medicine is rather miraculous in its ability to keep people alive longer and longer, but these advances mean that it is more important than ever to think ahead about what types of measures you would want to be taken to prolong your life if you are, for instance, terminally ill. In Massachusetts, there are two primary documents that can be used to express these wishes. The first is a living will, which is not legally binding and is usually a general statement of intent regarding end-of-life care (e.g., “Do everything you can to keep me alive as long as possible,” or “Do not use “extraordinary” methods such as a feeding tube to extend my life.”). Although this document can often be prepared as part of a comprehensive estate plan, since it is not legally binding, it can also be prepared by the individual without the involvement of a legal professional.

The second document is a Medical Order for Life-Sustaining Treatment (commonly abbreviated as a “MOLST”). Unlike the other documents discussed in this article, this document is prepared in consultation with a physician and, once signed, becomes a medical order regarding certain types of end-of-life care which is placed in the patient’s medical record. Although MOLSTs have traditionally only been used with patients who are terminally ill and/or have a severe chronic illness, some physicians have started discussing them with a wider array of patients.

4. Your Parents’ Wishes Regarding Funeral Services and the Disposal of Their Remains. A crucial task that generally falls to children after the death of a parent but is rarely talked about in an estate planning context is the disposal of the parent’s remains and the planning of their funeral. These decisions generally need to be made very quickly after death, at a time when family members may still be in shock and/or not thinking clearly. This makes it especially important to discuss your parents’ wishes ahead of time rather than trying to guess at what they would want after they’re gone, when you could be vulnerable to exploitation. While traditionally funerals have been relatively somber affairs and the options for the disposal of bodily remains were limited to a traditional burial or cremation, newer options, such as green/environmentally friendly burials and memorial services that are more celebratory as opposed to mournful, are becoming more common and widely available.

If your parents have particularly strong wishes about the disposal of their remains and/or their funeral services, they may want to consider adding a Directive as to Remains to their estate plan. This highly customizable document can express wishes regarding the actual disposal of bodily remains (e.g., burial or cremation) as well as wishes about funeral and other memorial services, including whether certain religious services or rites should be performed and whether any sort of service should be held at all.

5. Your Comprehensive Estate Plan and Wishes. While most of this article has focused on what you should discuss with your parents about their wishes and plans, you should also take the opportunity to discuss what your wishes and plans are for yourself. This is especially true if your parents are named in your own estate plan documents, either as beneficiaries or to serve in one or more key roles. As important as it is for you to know your parents’ wishes should something happen to them, it is equally important for your parents to know your wishes should something happen to you. Additionally, taking the opportunity to lead by example may give reluctant parents the push they need to get their own plans in order.

These topics do not qualify as light holiday dinner conversation, and are often difficult, awkward, and/or painful to discuss. Unfortunately, while not discussing it may save you from some difficult, painful moments now, it may be even more painful if these discussions are put off when there’s been an emergency and decisions need to be made quickly either with no plan in place or with a plan that no one knew about beforehand. That said, this is not a discussion that should be rushed into or done haphazardly. Fortunately, groups such as The Conversation Project and the broad “death positivity” movement have resources available online to help families approach these subjects thoughtfully and productively.

 

Francis R. Mulé 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. He is an active member, and the current Chair-Elect, of the Massachusetts Bar Association’s Young Lawyers Division. 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 2021

© 2021 Samuel, Sayward & Baler LLC

Don’t Settle for ‘Just Any’ Estate Plan

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Toyota is currently running a series of ads for their service centers advising Toyota drivers that using genuine Toyota parts and having their cars serviced by Toyota-trained technicians is a much better decision than having ‘just anyone’ do it.  In one ad, the Toyota driver imagines what could go wrong if he hires ‘just any carpenter’- it’s not pretty.  In another commercial, a couple watches as their living room is destroyed after an electrician rewires everything with ‘stuff that will work fine.’  Toyota’s point is that ‘just right’ is better than ‘fine’.  The same is true when it comes to your estate plan. 

There is a proliferation of material on the internet purporting to make the viewer an expert on everything from cutting your own hair, changing the oil in your car, and yes, writing your own Will (I’m not going to share a link for this because I care about you).   While there are some projects that do not require a specialist, there are others that most assuredly should be undertaken by an experienced professional – estate planning falls into the latter category.  

Here at Samuel, Sayward & Baler LLC, we meet with people who come to us with estate plans that were prepared by attorneys who do not concentrate their practice in the area of estate planning or even some clients who prepared their own estate plan.   The reason for this is often cost-savings – ‘my cousin is a personal injury attorney and he did our Will for free’ or ‘I bought a Will form on a legal website for $20’.   This is almost always a case of being ‘penny-wise and pound foolish’ because the cost of having an improper estate plan is high –not just in money – but in the toll it takes on surviving family members.  

Examples of poorly drafted or ‘do-it-yourself’ estate plan fails that we have seen include:

  • A Will that named one beneficiary without stating to whom the estate should pass if that beneficiary died, and in fact, the beneficiary did die before the testator who did not update his Will before he passed away.
  • A Will that did not grant the Personal Representative (executor) the authority to sell real estate, thus necessitating a special petition to the court to obtain permission to sell which was both costly and time consuming.
  • A Power of Attorney that was not durable and as such became void when the maker became incapacitated, thereby requiring a court appointed conservator (expensive and time consuming).
  • A Will that left the assets in the estate to a Trust that did not exist.
  • A married couple whose general practice attorney failed to advise them about simple planning that would have saved their family more than $100,000 in estate taxes. 

Sadly, I could go on and on.  

Working with an experienced estate planning and elder law attorney to prepare a plan that is appropriate for your unique situation and designed to meet your goals is not free and not cheap.  However, the savings that are achieved by avoiding probate, reducing or eliminating estate taxes, or preserving assets from spenddown on long-term care costs is usually many times over the cost of the planning.  Don’t settle for ‘just any estate plan’ – work with an experienced estate planning and elder law attorney to create the plan that is ‘just right’ for you. 

 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.

November, 2021

© 2021 Samuel, Sayward & Baler LLC

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.

Francis R. Mulé 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. He is an active member and the Chair-Elect of the Massachusetts Bar Association’s Young Lawyers Division. 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. 

October, 2021

© 2021 Samuel, Sayward & Baler LLC

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.

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