Attorney Suzanne Sayward discusses Fiduciaries, for our Smart Counsel for Lunch Series. Please watch and if you have any questions or want to learn more please call us at 781 461-1020.
Choosing Fiduciaries
How is Estate Planning Similar to Gardening?
It’s that time of year when gardeners are breaking out their trowels and sunhats, and perusing nurseries for plants to create their gardens for the summer. I love gardening and have spent that last couple of weekends planting seeds and seedlings of tomatoes, peppers, green onions, potatoes, kale, spinach, radishes, cabbage and Swiss chard. And I still have more to plant! While digging in the soil, it occurred to me that gardening and estate planning are similar in a few ways.
Last year, I planted several tomato plants on my deck and patio. Mid-way through the summer, the tomato plants on the deck were decimated by an infestation of spider mites. By the time I took action, it was too late to help the deck plants but luckily, I was able to save the tomatoes on the patio. Now I am more knowledgeable and better prepared to stop the pests in their tracks if I encounter the same problem this year. Creating an estate plan requires the same perspective. Your estate plan should be rooted in the present based on your finances, family and health, but prepared to address both expected and unexpected circumstances. In short, your estate plan should have a solid foundation and the flexibility to branch in several directions depending on the situation that arises.
I also planted yellow squash and zucchini for the first time last summer. The zucchini grew spectacularly; the yellow squash did not, despite fertilizer, more water, etc. I plan to plant yellow squash again this year, however, it will be a different variety and in another location with the hope that it will grow better. Similarly, you should adjust your estate plan regularly through the years. If you or your loved ones have major changes in health or finances, your estate plan may need to be updated. For example, if you name an adult child as your Personal Representative and she passes away, your Will should be updated to replace her and name a successor. Additionally, you may want to direct that her inheritance is distributed differently than what is in your current Will.
For years, I have planted basil and marigolds with my tomatoes. Besides the bright yellow, orange and red marigolds drawing attention to the cherry tomatoes hiding in the green foliage, the flowers also provide protection from several pests that can damage the tomato plants (except spider mites apparently). Beyond pest control, some plants provide beneficial nutrients to the soil for other plants. Like strategically growing certain types of plants together, it is important to consider the relationships of the individuals you appoint to manage your estate after your death. I often have clients ask if their adult children can serve together as fiduciaries (Personal Representatives, Trustees, Attorneys-in-Fact) when the real question is should they serve together. If one of your goals is to preserve a harmonious relationship between your adult children and minimize conflict that could cause estrangement for the rest of their lives, it may be better to name one at a time, depending on your particular circumstances and their dynamics.
These are just a few examples of how estate planning and gardening are similar. At Samuel, Sayward & Baler LLC, our knowledgeable attorneys will meet with you to thoughtfully assist with developing a foundational estate plan or adjusting your estate plan because of changes in your life. And after meeting, I will return to playing in my garden.
Attorney Abigail V. Poole is a senior 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 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.
May, 2023
© 2023 Samuel, Sayward & Baler LLC
How To Choose A Fiduciary When There Is No Obvious Choice
Attorney Suzanne Sayward discusses how to choose a fiduciary when there is no obvious choice, for this edition of our Smart Counsel for Lunch Series. Please watch and if you have any questions or want to learn more please call us at 781 461-1020.
And don’t forget….
to 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.
Five Planning Considerations for Blended Families
The recent death of my teenage heartthrob David Cassidy got me thinking about Friday nights in the 1970’s when The Brady Bunch and The Partridge Family were must-see-TV. The Brady Bunch were and may still be TV’s most famous blended family. Mike and Carol Brady met, fell in love, married, and combined their individual families of three children apiece into one harmonious blended family of 6 children which encountered no problem that could not be resolved in a half-hour episode.
In the estate planning context, blended families present some planning challenges. The parties may have a prenuptial agreement by which they have already agreed upon how assets will be distributed at death, or they may have not given the issue any thought at all. Here are five issues that deserve consideration when planning for your blended family:
- Division of Assets at Death. Two threshold questions are how do you and your spouse own your assets and to whom do you wish to leave those assets at death? For example, if you married later in life after your children were grown and out of the house, you may own your assets individually and each intend to leave your individually owned assets to your respective children at death. If you married when your children were very young and raised all of your children together, you may have long ago combined your assets and may intend that your assets be divided equally among all of the children. If you intend that your assets pass not only to your biological children but also to the children of your spouse, this must be accomplished by appropriate legal documents. The intestate laws that govern the distribution of estate assets in the absence of a Will do not provide for assets to pass to children that are not legal descendants (the biological or adopted children of the deceased). Those documents can also allocate assets unequally to children and step-children if that is your intention.
- Planning for the Surviving Spouse. If you want to leave assets to your own children at death, will the survivor of you have sufficient assets to live on? A plan that leaves assets to your spouse with the understanding that she will leave any remaining assets to your children at her death can be a recipe for disaster. The surviving spouse can change her estate plan or beneficiary designations after the first spouse dies to leave the assets in whatever manner she chooses. Even if the surviving spouse honors the agreement, liability or long-term illness could cause inherited assets to be lost. In this situation, a trust can be an appropriate arrangement to ensure that the surviving spouse has the benefit of income or assets during the surviving spouse’s lifetime, and that any remaining assets pass directly to the children of the first spouse to die at the surviving spouse’s death.
But do you want your children to have to wait until their step-parent dies in order to receive their inheritance? What if there is a significant age difference between you and your spouse? These are all planning questions that need to be addressed in the context of each particular family’s situation. The best approach may be to split the difference, leaving some assets to children directly at the first spouse’s death, and other assets to the spouse or in trust for the spouse. This can be an especially important issue when planning for the distribution of retirement accounts in such a situation, factoring in the income tax implications of the various planning choices.
- What to do with the Home? A blended family may live in a home that is owned by one spouse, or by both spouses who may have contributed equally or unequally to its purchase and subsequent carrying costs. If the home is owned by one spouse, an important planning consideration is where the surviving spouse will live when the owner-spouse dies, especially if the owner-spouse wants the home or its value to pass on to his children. A well-structured estate plan can allow the surviving spouse to continue to reside in the home for her lifetime, paying carrying costs in lieu of rent, and then pass the home (or the proceeds from its sale) to the owner’s children. If both spouses own the home, similar arrangements can be made, with the proceeds divided between both spouses’ children at the death of the surviving spouse, or when the home is sold.
- Choosing Fiduciaries. Your legal documents may carefully spell out your intentions, but who will ensure those documents are administered properly and fairly? Choosing a fiduciary all members of a blended family feel comfortable with can sometimes be a challenge. This may be best addressed by choosing a third party or a professional or corporate fiduciary. Or there may be a family member who all the other family members are comfortable filling that role. In other families, two children (one from each side of the family) acting as co-fiduciaries is a good solution.
- Planning for Long-Term Care. Paying for long-term care can be challenging in a blended family where spouses have maintained separate assets and do not intend that one spouse should be responsible for the care costs of the other spouse. Unfortunately, public benefit programs do not make exceptions for these circumstances, nor do they respect the terms of a prenuptial agreement the parties may have entered into. Under the rules of those programs all of the assets of both spouses are “available” to pay for the care of either spouse. If this is not the parties’ intention, consideration should be given to other planning strategies that will not leave one spouse responsible for the other’s care costs, leaving no inheritance for his or her children.
Estate planning for a blended family is not as easy as it looks on TV. Each family and its dynamics are different, and there is not one correct approach. However, it is important to take the time to plan thoughtfully for your family, to ensure that the surviving spouse is provided for, and the harmony your blended family has worked hard to achieve continues long after you are gone.
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). 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 2017
© 2017 Samuel, Sayward & Baler LLC