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Five Things To Do Soon After A Loved One Passes Away

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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

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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

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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

Five Requirements of a Valid Will

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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:

    • 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.

Julia Abbott, Esq. is an estate planning and elder law attorney and a partner with Samuel, Sayward & Baler LLC, a law firm based in Dedham. She is also a member of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA). 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 Are Five Things You Wish You Had Done Before The Pandemic?

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Like so many of you, I am connecting with friends and family by telephone and videoconference to maintain my sanity and do my best to stay at home for the safety of our vulnerable community members and frontline workers during the COVID-19 pandemic. During a few of my calls, I have noticed that some of my friends and family are now thinking about creating a legacy plan or updating their estate plan along with other things they wish they had done before the pandemic.  Luckily, it is not too late to accomplish many of those things, and hopefully it is simply a matter of time and patience before they can do the others.  Here are a few of the (somewhat tongue-in-cheek) things my friends and family have mentioned they wish to have done before the pandemic:

1. Prepare Estate Planning Documents

Several family members and friends are using the pandemic as the impetus to take their estate plan out, brush off the dust, and review it to confirm it reflects their current family circumstances and wishes for their legacy. Others are creating an estate plan for the first time.  Regardless of which situation applies to you, it is important that you have the basic “don’t leave home with them” documents in place. You should have a Power of Attorney that appoints a person to make financial decisions on your behalf if you are incapacitated.  Likewise, a Health Care Proxy that names an individual to make health care decisions if you are unable to do so yourself is imperative.  A HIPAA Authorization form, which allows the people you name on it to receive medical information about you is particularly relevant, too.  Lastly, a Last Will and Testament that appoints a person to manage your assets and distribute them according to your wishes is a must have for most people, and remember -where there is a will, there is a way!

2. Discuss Wishes with Agents and Family Members

Let’s face it – thinking about your own demise can be saddening, depressing, scary and difficult.  Talking about it can be even more so. However, the pandemic is causing many of my family members and friends to think seriously about their wishes in case they become ill and do not recover.  They are having conversations with or providing written instructions to the individuals appointed in their estate planning documents (their agents) and family members about what they would want to happen in the event they become incapacitated or pass away. One way to ease into the conversation is to create a list of resources that you want your family to reach out to if you fall ill or pass away, such as care management agencies, attorneys, rehabilitation centers, or funeral homes you favor. Doing so may give you a sense of control during these uncertain times and the peace of mind that you, your family, and your estate will be taken care of the way you intend if something happens.

3. Be Prepared: Maintain a Well-Stocked Pantry (and Other Useful Non-perishables – Toilet Paper, Anyone?)

The pandemic has highlighted the importance of being prepared for the unexpected and emergencies.  One way to be prepared is to maintain a supply of items you consider necessities as best you can. I have a much greater appreciation now for readily available toilet paper, hand soap, cleaning supplies, flour and yeast. Beyond pantry items and cleaning items, basic medical supplies such as gloves, masks, bandages, antibiotic ointment, medication, etc. are clearly helpful to have on hand. Of course, it is important to thoughtfully collect items – keep in mind to purchase only what you require as other people likely need them, too.

Consider what estate planning and legal documents should be accessible to family members, designate a location for the documents and share the location with your family members and/or friends. Perhaps keep electronic copies of your legal documents available on your cell phone or a USB drive. Remember to share a copy of your health care proxy (paper and/or electronic) with your named health care agent(s).

Another way to be prepared is to consider having a “go bag” with essentials you might need in case you have to leave your home suddenly, and/or a family member or friend needs to assist you at home because you are ill.  For example, keep toiletries, clothing, copies of relevant legal documents, an extra cell phone charger, and entertainment materials in the go bag.

4. Embrace Social Events (and Family and Friends!) More Often

Continue to use this opportunity to spend time with family members and friends in innovative ways – virtual game nights, virtual family yoga sessions, or simply sharing your favorite books, movies or television shows with each other. Think about the activities you did in the past that you look forward to enjoying in the future.  For example, some of my friends wish they had swum more often and plan to make time for swimming at their community pool once that is possible again.  Other friends wish they had traveled and explored new places more, whether by visiting a festival in a nearby town, camping in another state, or hiking ancient ruins in a country halfway across the world.

Once the pandemic is over, say yes to invitations and events, no matter how big or small. And give and get hugs! In short, engage and embrace your loved ones and living life fully again.

5. Remember That You Are A Member of A Community

One of my friends remarked that she wishes she had paid more attention to the news. Her insightful comment illuminates the larger message that is currently being heard far and wide: we are all connected and in this together.  Invest some time in being an observant, active and considerate participant in your town, state, country and the world, and leave a legacy of kindness. Listen or watch local and international news and contribute when and where you are able. There are countless examples of people helping others by delivering groceries to elderly neighbors to musicians sharing hopeful songs on social media. How can you safely help others?

I hope you are finding productive and helpful (and enjoyable) ways to manage the “new normal” caused by the pandemic. Whether you are taking this time to focus on your estate plan and preparedness, or discussing the serious and silly stuff with family and friends, or helping others, please be safe and well.

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. 

May, 2020

© 2020 Samuel, Sayward & Baler LLC

Remote Notarization Is Here!

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For those of you hoping to sign your estate plan documents from the comfort of your home, we have some good news to report.  After weeks of hard work by a number of Massachusetts attorneys including our own Abigail Poole, we finally have a law that will allow notaries to acknowledge signatures via video conference.  On Monday, Governor Baker signed the Virtual Notarization Act into law, a temporary measure effective only during and for three days after the current COVID-19 state of emergency.  This law permits attorneys (or paralegals under the supervision of attorneys) to notarize estate planning and real estate documents remotely using video conferencing, without being in the physical presence of those signing the document.

There are many technical requirements that must be followed in order for the document to be validly notarized, including:

  • the signers must state on the video that they consent to the session being recorded
  • the notary and all witnesses must observe the signing via video conference
  • all parties be physically located in Massachusetts at the time of the signing
  • the signers must disclose who is in the room with them and provide visual evidence on the video of everyone who is physically present in the room with the signers
  • the signers must present their identification to the Notary during the video session and must send a copy of that identification to the Notary
  • the video conference must be recorded and retained for 10 years
  • the documents being notarized must contain special language stating that they were notarized in this manner
  • a separate affidavit be completed and signed by the Notary regarding the session
  • the documents must be returned to the Notary for notarization before they are complete and effective
  • real estate documents signed in this manner require a second video conference between the Notary and the signer after the documents are received by the Notary before they can be validly notarized.

Although we are happy to have this option for clients who are unable to leave their homes or do not wish to do so, our curbside signings – variously referred to as “Car Hop” signings or “Wills on Wheels” – are also a popular and efficient way to sign documents in this time of physical distancing.

Maria Baler, Esq. is an estate planning lawyer 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 currently serves on the Board of Directors of the Massachusetts Forum of Estate Planning Attorneys. For more information, please 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.

April 2020

© 2020 Samuel, Sayward & Baler LLC

Silver Linings! A Chance To Pause, Plan, And Act To Save Money On Long Term Care!

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Despite the uncertainty, pain and loss associated with COVID-19 there are some opportunities that have emerged in the long-term care space as well.  This ordeal is affecting us all – requiring that we slow down, re-evaluate our priorities, take care of ourselves, our families and friends, and importantly attack that closet that’s been exploding with junk! This is also a great time to re-evaluate financial and estate plans with respect to long-term care.  If I or my loved one needs nursing home care or long-term care, assets will be consumed in no time.  Can we do anything to prevent that?

The answer is yes, and this is the time to do it!  Right in the middle of COVID-19, believe it or not, when the market is depressed.

Although it may not feel good now, we can actually take advantage of this decrease in the market by protecting assets from the cost of long-term care.  How can we do this? By creating and funding an irrevocable trust now with “depressed assets” which are likely to increase in value when the market rebounds.

Let’s look at the numbers around long-term care in Massachusetts.

Nursing homes are expensive!

*        According to a study conducted by Genworth in 2019, the monthly median cost of a semi-private room in Massachusetts was $12,473 and a private room was $13,212.  So, roughly $150,000 per year on the low end!

*        52% of people over age 65 will require long term care/nursing home care

*        62% of all nursing home beds are paid for by Medicaid

What is the difference between Medicare and Medicaid?

In short, Medicare is the federal health insurance program designed principally for Americans age 65 years of age or older.  Medicare Part A is hospital insurance that covers part of the cost of inpatient hospital care, hospice care and limited time in a skilled nursing home facility.

If you ask a Medicare attorney, What nursing home costs will Medicare cover? The short answer? Not a lot.

Medicare will cover 100% of the cost for the first 20 days you are in a nursing home IF, AND ONLY IF:

  1. You had a recent inpatient hospital stay of at least 3 days;
  2. You are admitted to a Medicare-certified nursing facility within 30 days of your hospital stay; and
  3. You need skilled care such as physical therapy or skilled nursing services.

If all three criteria are met, Medicare will pay 100% of the costs for the first 20 days of your stay in the nursing home.  For days 21-100, you pay up to $170.50 per day and Medicare pays at least a portion of the balance.  There are criteria that must be met and Medicare can end sooner than 100 days.  After 100 days, you are fully responsible for the entire cost for each day that you remain in the facility.

Let’s talk about Medicaid now.

Medicaid is a federal public assistance program (MassHealth is the state program) for low income people. Medicaid/MassHealth pays for health care services for people with very low income or high medical bills relative to income and assets.  Eligibility is based on income and assets.

In order to qualify for Medicaid/MassHealth as a single person, a single applicant can have no more than $2,000 in resources (this includes retirement accounts, stocks, bonds, CDs, life insurance policies with a cash value and bank accounts).  Real estate that is your primary residence is exempt up to an equity value of $893,000 in 2020.  Married couples can retain an additional $128,640 in assets (unless both spouses are in the nursing home).

So now what? What can we do? What’s the strategy?

Although it is not the right planning strategy for everyone, a long-term care planning strategy that is appropriate for some people to protect assets from having to be spent on long-term care costs is to create and fund an irrevocable trust.  You and your long-term care attorney (and perhaps your financial advisor) will decide what assets and how much of those assets to transfer into this irrevocable trust, keeping in mind that once assets are transferred to an irrevocable trust, you cannot take them back or use those assets in any way that benefits you.

If you don’t apply for Medicaid/MassHealth for at least five (5) years after the date you transferred assets to the Trust, the entire value of the trust assets will not be included when MassHealth determines your financial eligibility (remember $2,000 for a single person and an additional $128,640 for a married couple), and will be protected for distribution to your family or intended beneficiaries following your death.

The silver lining in all of this Medicaid estate planning (and what makes this is a perfect time to implement some proactive planning) is that when the market rebounds, that gain or increase in value in your assets titled in your irrevocable trust is also protected from the cost of long term care if you apply for Medicaid/MassHealth.

So, while the stress of COVID-19 is difficult, it is also presenting a unique opportunity to capture some upside for your long-term care planning from this downturn in the market.  Take advantage of this opportunity to protect your assets (or those of your loved ones), and proactively plan for the future.  This will yield yet another silver living during this ongoing crisis – peace of mind and the knowledge that you will have taken a big step in protecting assets for your children, your spouse or other beneficiaries.

Attorney Julia Abbott is 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. 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. 

April, 2020

© 2020 Samuel, Sayward & Baler LLC

Five Answers to Your Estate Planning Questions in Uncertain Times from An Estate Planning Attorney

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In light of the COVID-19 pandemic, many people have questions about what will happen if they get sick or pass away.  As estate planners, these are questions we think about and answer every day.  Our goal as estate planning attorneys is for everyone to have an updated estate plan that will ensure you and your family are taken care of in the event of illness or death.  However, there are many folks for whom estate planning has not made it to the top of their To Do list.  Here are five answers to many of the questions we are hearing (over the phone and online), and some steps you can take in the short run to give yourself some peace of mind.

  1. If I am hospitalized, who will decide what type of treatment I receive?

If you are able to make and communicate your own health care decisions, the doctors will look to you to make those decisions for yourself.  If your illness is such that you are no longer able to make or communicate your own decisions, and if you have signed a Health Care Proxy, the doctor will look to the Health Care Agent you named in that document to make health care decisions for you.

Hopefully, if you are hospitalized, you already have a Health Care Proxy. If you do not have a Health Care Proxy, consider downloading, printing and completing the Massachusetts Health Care Proxy form here, and follow the instructions carefully.  When the form is completed and signed, give a copy to your primary care physician and to each of your health care agents.

If you do not have a Health Care Proxy and your illness makes it impossible for you to create one, your family or the medical facility where you are resident may need to ask the Court to appoint a guardian for you.  Your court appointed guardian would have the legal authority to make health care decisions on your behalf.

If you name a Health Care Agent in a Health Care Proxy, take the time to communicate your health care wishes to your Health Care Agent.  There are many online tools available to facilitate these discussions.  You can find a lot of good information and tools that will help you create a Health Care Proxy and discuss your health care wishes with your Health Care Agents on the Honoring Choices website. Additional tools can be found on the website of the American Bar Association’s Commission on Law and Aging. For discussions about end of life care, check out the Conversation Project.

  1. Who will make financial decisions for me if I can’t make them for myself?

Financial decision-making is an important part of our daily life.  If you are unable to make these decisions yourself, you will need someone to pay your bills, file your income tax returns, manage your investments, sell or mortgage real estate, take distributions from your retirement accounts, and a variety of other things that arise on a daily basis.  A Power of Attorney designates a person to handle financial matters on your behalf.  The designee is called your attorney-in-fact.  Many people name their spouse or an adult child as their attorney-in-fact.  A so-called “durable” Power of Attorney permits action even after the person who created the document becomes incapacitated.

The law requires that the Power of Attorney specifically authorize the actions your attorney-in-fact may undertake on your behalf.  For this reason, Powers of Attorney are typically drafted by an estate planning attorney who will tailor the powers granted to address your particular situation.

If you do not have a Power of Attorney and you become incapacitated, your family may petition the court to appoint a Conservator for you.  A court-appointed conservator will have the legal authority to manage your financial affairs under court supervision.

  1. If I die and do not have a Will, what will happen to my assets?

If you pass away and have not signed a Will, the distribution of your assets depends on how your assets are owned, or whether a beneficiary has been designated to receive that asset at your death.

Assets that are jointly owned with another person (for example, your home that is owned jointly by you and your spouse) will (usually) pass automatically to the surviving joint owner.

Assets for which a beneficiary is designated (for example, your life insurance policies and retirement accounts) will be paid to the beneficiary you have designated to receive that asset at your death.

While joint ownership can seem like an easy way to ensure a person receives an asset at your death, keep in mind that adding a joint owner to an asset carries with it tax, ownership, liability and other implications, and should not be done before consulting with an attorney.  Beneficiary designations are also best made in consultation with your estate planning attorney to ensure the designations do not disrupt the other provisions of your estate plan.

If you do not have a Will, for assets owned in your individual name without a joint owner or beneficiary, those assets will be distributed at your death according to the Massachusetts intestate laws.

If you are married, all of your assets will pass to your spouse if (a) you have no children or parents living, or (b) all of your children are also your spouse’s children, and your spouse has no children that are not your children.

If you are married and have no children, but you have parents living, your spouse will receive $200,000, plus three-quarters of the remaining assets, and your parents (or your surviving parent) will receive the rest.

If you are married and you have children who are also your spouse’s children, and either you or your spouse has a child who is not your spouse’s child, your spouse will receive $100,000, plus one-half of the remaining assets, and your children will receive the rest.

Without a Will, if you are not married, all of your assets will go to your descendants.  If you have no descendants, all of your assets will go equally to your parents, or to your surviving parent.  If you have no descendants or surviving parents, your assets will go to your siblings.

If a person is under the age of 18, any assets they inherit cannot be legally owned by them.  The court will appoint a Conservator to manage those assets for the minor’s benefit until the minor reaches age 18, at which time the minor will receive ownership of the assets.

  1. What will happen to my minor children if I pass away?

If you don’t have a Will appointing a Guardian for your minor children, the court will appoint a Guardian who will have physical custody of your children, make decisions about where your children will live and go to school, their religious upbringing, and also make health care decisions for them.

If you have a Will, your Will will name the people you wish to be appointed as Guardian of your children.  In all cases, the Court will determine who to appoint as Guardian based on what the Court determines is in the best interests of the child at the time.

Parents of minor children should also have a document that appoints a temporary guardian who will have authority to take temporary physical custody of a child until the permanent Guardian can be appointed by the Court.

If you have young children, consider creating a letter of instruction that provides important information about each child – the name and contact information for the child’s physician, allergies, other important medical information, food preferences, schedule, friends, activities,  and other things you think someone should know if they had to care for your child unexpectedly.

  1. Where will my family begin if something happens to me?

One of the most important things you can do is get organized.  Take the time to identify a place in your house where you keep important information and documents and let trusted family members know where that is.   Consider a well-organized filing cabinet with clearly labeled folders and treat that as your estate planning repository.  Include copies of your legal documents such as Wills, Trusts, Powers of Attorney and Health Care Proxies, as well as the contact information for your estate planning attorney, accountant and financial advisors.  Also included should be recent account statements, life insurance and homeowner’s insurance policies, retirement account information, etc.

Compile and include a list of your assets (bank accounts, investment accounts, annuities, life insurance, retirement accounts, etc.) that includes the institution where each account is located, the account number, your contact person at that institution (if any) and their contact information. Also include a list of usernames and passwords for any important online accounts – financial, photo storage, email, social media, document storage accounts.  Keep these lists updated and in the place where you keep other important papers so that they can be found.

If you have a safe deposit box, make sure at least one other trusted family member’s name is on the box so that they will have access after your death. This is especially important if your original Will or other estate plan documents are in the box.

A comprehensive estate plan drafted by an estate planning lawyer will address all of these issues – name guardians for your children, specify how your assets will be distributed at your death, designate decision-makers for financial and health care decisions if needed, and so much more.  If you are concerned about not having legal documents in place, contact an estate planning attorney.  Resist the urge to create these documents yourself. Whether on the back of a napkin or online at Legal Zoom, there is no substitute for the advice of an experienced attorney who will provide advice tailored to your particular family situation, your assets, and the tax and probate laws of your state of residence.  If you are feeling concerned about the state of your estate plan, or lack thereof, give your local estate planning attorney, including our office, a call – we are here to help.

Maria Baler, Esq. is an estate planning lawyer 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 currently serves on the Board of Directors of the Massachusetts Forum of Estate Planning Attorneys. For more information, please 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.

April 2020

© 2020 Samuel, Sayward & Baler LLC

Three Things You Can Do Now

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Dear Clients and Friends,

We hope this finds you all well and safe!  We want to give you an update on our plans and assure you that we’re here for you.  While we may need to close our physical office, please be assured that our team members are well-equipped to work from home and to attend to the important work we are doing for you.  You are welcome to reach out to us by phone or email.

Over the past week, we have been thinking about how we can best serve our clients during this uncertain time. Here are three things we can do to help you now:

1. Provide Access to Your Health Care Documents Electronically Contact us if you would like us to send you or your health care agents your health care documents in electronic format.  You and/or your named health care agents should store the documents on your smart phone so you have them on hand at all times. Here are our directions for doing so. Please contact Jennifer Poles at poles@ssbllc.com with the names and email addresses of the people to whom you would like us to send your health care documents.

2. Meet with you by Phone or Video Conference Contact us if you would like to schedule a phone or video conference to discuss your estate plan and any updates that may be necessary.  We are offering flexible hours – early in the morning, during business hours, or in the evening – to allow you to have these calls at a time that is convenient for you.

3. Provide Answers to Your Long-Term Care Planning Questions Contact us if you have concerns about planning for long-term care needs for yourself or a loved one.

While the new realities of social distancing, sheltering in place, and self-quarantining are consuming our thoughts right now, the important issues addressed by estate planning are still there, and in fact, are more important than ever.   We will get through this crisis.  During this time and after, we want you to know that we are here to help you, so please don’t hesitate to reach out.

We wish you and your family health and safety during these uncertain times.

Suzanne R. Sayward

Maria C. Baler

Julia K. Abbott

Abigail V. Poole

Imaginative and Unique Estate Planning Provisions

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As part of our work as estate planning attorneys, we draft and review a lot of Wills and Trusts.  For the most part, they are pretty standard.   The testator of a Will and the Grantor of a Trust tend to leave assets to a surviving spouse, and then to children.  Of course, there are some variations – a “specific bequest” to a certain person or charity (a certain amount of money usually), or perhaps a child is disinherited due to a chemical dependency, a rocky marriage or a spending problem.  But the majority of our clients’ Estate Planning goals and objectives are to provide for their spouse and children and that the will and trust documents they need are drafted accordingly.  They tend not to include much humor or any “unusual requests” for the most part.

But every so often, we see or read about (or are asked to draft) some more “colorful” provisions.  Here are some of the more creative Estate Planning requests we’ve seen or read about.

1. US comedian Jack Benny included a provision in his Will that a single long-stemmed red rose be delivered to his wife every day for the rest of her life.  And his florist ensured that it happened until Mrs. Benny died eight years later.

2. A donor in Britain in 1928 made a bequest of a half-million pounds for the purpose of clearing the national debt.  The issue was, the donor specified that it can only be paid out once it is sufficient to clear the entire national debt.  Although the bequest is now worth 350M pounds, it is not sufficient to clear the entire national debt so it remains held in trust.

3. The creator of the original Star Trek series, Gene Roddenberry, was understandably obsessed with space and this even appeared in his Estate Planning wishes.  His famous quote was to “boldly go where no man has gone before.”  In keeping with his obsession, his Will requested a celestial burial.   His request was honored and several years after his passing, a portion of his remains were placed on a rocket and shot into space.

4. The magician, Harry Houdini, conducted seances during his life.  His Will included a provision requesting that his wife conduct an annual session with the afterlife.  He further asked her to commit a secret code to memory which, he believed, would provide evidence of communication with the “other side.”  His wife honored this request from his will for ten years following Houdini’s death, always on Halloween (the anniversary of Houdini’s death).

5. Janice Joplin (known to her close friends as Pearl) died at the age of 27 from a drug overdose.  Her Will included a bequest of $2,500 (approximately $16,000 in today’s dollars) to enable her friends to hold a rocking wake party which did happen in California several weeks after her death.  The invitations stated “drinks are on Pearl.”

6. Benjamin Franklin’s Will left a picture frame containing more than 400 diamonds to his daughter with the instruction that she “not engage the expensive, vain and useless pastime of wearing jewels.”  He intended for her to leave the frame intact.  Shockingly, this Estate Planning wish was not honored.

7. Billionaire Leona Helmsley left her Maltese dog “Trouble” the de minimis sum of $12M.  Her Will also instructed that the family mausoleum where she was buried be “washed or steam-cleaned at least once a year,” for which she left $3 million.

8. William Shakespeare’s Will bequeathed his “second-best bed” to his wife, Anne Hathaway and the majority of his assets to his daughter, Susanna.  His Will stated “Item I gyve unto my wife my second best bed with the furniture.”

9. German poet Heinrich Heine left his estate to his wife, Matilda, on the condition that she remarry so that there “will be at least one man to regret my death.”

10. Portuguese aristocrat Luis Carolos de Noronha Cabral da Camara left his sizeable fortune to 70 people selected from a Lisbon phone directory.  They had been chosen at random from the directory, in front of two witnesses at a registry office 13 years before when Luis Carlos made his Will.

11. Napoleon Bonaparte’s last wish was that his head be shaved and the hair divided up amongst his friends, possibly his true heirs.

12. John Bowan, a millionaire from Virginia, constructed a mausoleum to house the remains of his wife and two daughters who predeceased him. Bowman believed that after he died the whole family would be reincarnated together. He passed away in 1891 and in his will left a $50,000 fund to maintain his mansion and the mausoleum. The High Net-Worth will provided that the house staff of the mansion were to prepare dinner every night just in case the Bowman family was hungry after returning from the dead. Additionally, no one was allowed to stay in the house overnight so they wouldn’t disturb the ghostly residents. This was carried out every night until 1950 when the trust fund ran out.

While these examples are entertaining and imaginative (and somewhat dramatic), these types of Estate Planning and Will and Trust provisions can be risky.  It is important to remember that Wills can be challenged (contested) in court.  If a beneficiary successfully challenges a Will, the provisions in the Will could be found to be void in part or in its entirety.  If the Will is found to be void in its entirety, your estate would then be distributed according to the Rules of Intestacy in your state.  Before being witty or creative in your estate planning wishes, check with your estate planning attorney.  It might be possible to draft these types of provisions in a stand-alone letter of direction.

Attorney Julia Abbott is 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. 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. 

March, 2020

© 2020 Samuel, Sayward & Baler LLC

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

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