Attorney Maria Baler introduces our new firm video about the importance of client relationships.
Please watch our firm video below:
Estate Planning
Estate Planning Drama & Challenges
Attorney Suzanne Sayward discusses Estate Planning Drama and Challenges, 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.
To our Clients and Friends:
Please join us for the next presentation in our Smart Counsel Series on Thursday, February 23, 2023, from 6:00 p.m. to 7:30 p.m. virtually via Zoom, hosted by Attorney Maria Baler.
Bob Folsom of Folsom Funeral Services with locations in Dedham, Westwood and Norwood, will be here to discuss everything you wanted to know about funeral arrangements but were afraid to ask! Should you pre-arrange or pre-pay for your funeral and how? What happens when a person dies at home or in the hospital? What choices do families need to make after someone has died if no pre-arrangements are made? How are the Directives you leave taken into account when funeral arrangements are made? And what are Green Burials all about? Bob will give us an overview of green burial options, explain a “modified” green burial, and will discuss the availability of green burials locally and further afield.
We will also be joined by Liz Sandeman, who has been volunteering with New England Donor Services for 8 years, ever since her sister died waiting for a lung transplant. Last year she was awarded the National Donate Life America Ambassador Service Award. She is a frequent speaker at local senior centers, driving schools, community organizations, high schools, hospitals, health fairs, road races and community events. She is the current co-chair of the Massachusetts Lions Organ Donor Awareness program.
Attorney Baler will discuss how we incorporate our clients’ wishes about funeral arrangements and organ donation into the legal documents we prepare for them. Attendees will have an opportunity to ask questions of all speakers. Contact Kenzie Sayward at 781/461-1020 or kenzie@ssbllc.com to reserve a spot for you and a friend.
Suzanne R. Sayward
Maria C. Baler
Abigail V. Poole
Megan L. Bartholomew
Five Ways Matters of the Heart Intersect with Estate Planning
It’s almost Valentine’s Day, and our thoughts turn to reminding those we love how much we care about them. However, sometimes our relationships don’t always go as planned. Either way, it’s important that your estate plan keeps pace with your love life. Here are five ways your estate plan should respond when love is grand, or when love stinks.
1. Show your Love with a Good Estate Plan
Estate planning is about making sure the people you care about will be taken care of if something happens to you. Estate plan documents provide a roadmap for your family, naming decision-makers and people who are in charge of settling your estate following your death, and making sure your assets get to the people you wish to receive them. If you have young beneficiaries or those who can’t properly manage assets for themselves, your estate plan can make sure they are taken care of after your death, naming guardians for minor children, and creating trusts to make sure assets are properly managed and applied for young or immature beneficiaries. Your loved ones will remember you fondly if you leave a well-planned estate.
2. Ensuring Continued Support for Parents or Other Relatives
If you provide support to your parents or other older relatives, planning for their continued support if something happens to you is something you may not consider because you do not expect to predecease them. However, if you do, and if the support you provide is crucial to their well-being, your plan should make provisions for their continued support. An important part of planning for aging relatives is making sure any money left to them is left in trust, in a way that will not impact needs-based public benefits they may be eligible to receive to pay for their care. A trust will also insure that after your older relatives pass away, the remaining funds are distributed to people you choose.
3. When Love Goes Wrong
Unfortunately, relationships are not always all chocolates and roses. For couples in the midst of divorce proceedings, estate planning should be a priority. An important part of estate planning is naming decision-makers in the event you become incapacitated and cannot make legal, financial or health care decisions for yourself. While a divorce is pending, you should consider updating your Power of Attorney (for legal and financial decision-making) and your Health Care Proxy (for health are decision-making), to make sure people you trust will make those decision for you. Chances are your existing Power of Attorney and Health Care Proxy name your spouse as the decision-maker, which may not be the person you want to have that authority under the present circumstances.
If you pass away, your estate plan will determine how your assets are distributed. Because a divorce proceeding, among other things, determines the ownership of a couple’s assets, there are some limitations on this aspect of estate planning while a divorce is pending. During divorce proceedings, an automatic restraining order applies that prohibits either spouse from selling or transferring assets or changing the beneficiary on life insurance and retirement accounts except as permitted by Court order or agreement of the other party. Although asset ownership and beneficiary changes may not be made until after the divorce judgment issues, in the meantime divorcing parties can create updated Wills and Trusts that will distribute their assets as appropriate after their divorce is final, keeping in mind that those instructions may not be effective until the divorce is final.
4. After Your Divorce Is Final
Massachusetts law provides for an automatic modification of an estate plan after divorce, although the result may not be what the divorced person intends. In Massachusetts by law, a divorce judgment revokes any disposition of property to the divorced person’s former spouse, including trust provisions, beneficiary designations as to life insurance and retirement plans, transfer-on-death accounts, and any other revocable disposition. If estate plan documents named the former spouse or family members of the former spouse as a fiduciary – such as a Personal Representative (formerly Executor) or Trustee – those designations are treated as if the former spouse and the former spouse’s relatives predeceased the divorced person. Although these provisions may seem to do the trick, in reality they can wreak havoc on an estate plan and create unintended consequences. In addition, in the event a divorced person intends to or is required by their divorce judgment to benefit their former spouse with life insurance or some other asset, steps must be taken to ensure that designation will stick after the divorce occurs. The law also states that if a financial company is not properly notified of the divorce and it makes a distribution to the former spouse then the company cannot be held liable.
Once a divorce is final, each party should review their existing estate plan and beneficiary designations consistent with the terms of their divorce agreement and with the help of an experienced estate planning attorney and make any changes that may be necessary. For example, for a couple with young children, a Trust may be appropriate to manage a divorced parent’s assets for the benefit of those children if that parent were to pass away during a child’s minority. Naming someone that the parent trusts to manage and apply the Trust assets appropriately for the minor children is of the utmost importance for a single parent. If a Trust is not created, the children’s guardian/conservator will have responsibility for managing any assets inherited by the children, and that person is likely to be the children’s surviving parent. For most divorced couples, the idea that a former spouse will have control over the inheritance left to the children is unsettling and inconsistent with their intentions. An estate plan that addresses divorce-related issues can ensure this does not happen, and that the divorced parent’s wishes will be carried out.
Addressing the continued ownership of real estate that will be retained by one member of a formerly married couple is also important. Although a divorce will sever a tenancy by entirety (the form of joint ownership for married couples) and a divorce agreement or order of the court will determine the title, it is still advisable to have a new deed signed conveying the property into the name of the spouse who is retaining it. No matter how sick and tired you are of dealing with your soon to be ex-spouse, don’t walk away until the i’s are dotted and the t’s’ are crossed and that new deed putting the house in your name is signed and filed with the Registry of Deeds. This will ensure you (and you alone) can sell, mortgage or plan with that property going forward, without the involvement of your ex-spouse.
5. Planning for a New Blended Family
And let’s not forget that many divorced people go on to find love again. Estate planning for blended families is extremely important. Re-marriage brings its own set of estate planning challenges, especially if both parties have children from prior marriages or relationships. In such a case, good estate planning is crucial to ensure that if one member of the new couple dies, his or her children from a prior marriage will be provided for appropriately, while the new spouse or partner is also provided for if they do not have sufficient means of their own. It is unfortunate when, because of poor or neglected planning, all of a parent’s assets pass to the new spouse, who then leaves them to his or her own children or family members at death, leaving the deceased’s children with nothing.
When all is well, planning for death or incapacity may not seem to be a priority which means it can be left on the To Do list forever. When a marriage is ending, there are many things that are a priority, and dealing with multiple attorneys at the same time is not a happy prospect (for most people). But estate planning is an important part of taking care of your loved ones. Whether your situation is simple or complicated, whether your relationships are wonderful or not, taking the time to talk through your situation with an experienced estate planning attorney will provide you with options and strategies to achieve your goals, to protect your family, to give you peace of mind, and allow you to show those you love just how much you care.
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 a past 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.
February 2023
© 2023 Samuel, Sayward & Baler LLC
5 Topics To Discuss Around the Thanksgiving Table
Family gatherings for the holidays are traditionally a time of celebration, fun, and family time. However, if you have a family member who is sick, incapacitated, or who has passed away, those gatherings can feel a lot less festive.
Below are five important topics to discuss with parents, grandparents or any person for whom you may be the responsible decision-maker in the future.
- Digital assets: An often-overlooked aspect of today’s estate planning is making sure that a trusted individual knows where to find your online information, such as your usernames, passwords, and your online accounts. If you are concerned about the security of your computer, store this information the old-fashion way by writing it on a piece of paper. In our office, we provide clients with a Digital Assets Memorandum, which is a handy tool for organizing and memorializing this type of information. It can be stored with your estate plan documents for easy access or maintained electronically. Your family will be grateful to have this information if you become incapacitated or when you pass away.
- Beneficiaries for Retirement Accounts: While you are sitting around the Thanksgiving table with your family, consider the topic of naming beneficiaries on assets such as retirement accounts. Naming beneficiaries on IRAs and employer retirement plans is easy to do and doing so will not only ensure that these assets pass to your intended beneficiaries but will avoid the need to probate these assets. If no one is named, you should name a beneficiary immediately. Make sure to re-evaluate your beneficiary designations on your retirement accounts and ensure those are still the people you wish to benefit. Seeing everyone at the table can be a great reminder of who you currently have as beneficiaries and if you want to make any changes.
- Health Care Documents: While everyone loves a good game of backyard football after the Thanksgiving meal, injuries can occur and this can lead to chaos and confusion if someone needs treatment. All adults should have a HIPAA Authorization and Health Care Proxy. Sharing copies of these documents with your appointed agents and storing them on your phone so they are readily available in an emergency situation (such as needing to rush someone to the hospital if they injure themselves on the football field for the post-Thanksgiving game), will ensure decisions can be made in an emergency.
- Tangible personal property: Believe it or not, the personal property items are often a source of conflict during estate settlement. Personal property includes items such as jewelry, antiques, art, and other ’stuff”. If you have something special, such as a carving knife for the turkey or a gravy boat that has been passed through your family for generations, you should designate the person to receive that item so there is no fighting over that family heirloom later on.
- Updating Your Estate Plan: The past couple of years have been pretty crazy and a lot of families have not had the opportunity to gather around the table and see one another for the holidays. This year, if you are able to spend Thanksgiving with your family, you should talk about whether your family members have estate plans in place and if so, how long it is since they have been updated. Now that the world is opening back up and we are able to come together, it is a great time to remind family members if they are your appointed fiduciaries and make sure they are still able to fill that role for you (and that they are still the right people for you).
Thanksgiving is a time to be grateful and to celebrate with loved ones. It is also the perfect time to talk to one another in-person about these topics not only because these are important but because they also might be easier to talk about over a pumpkin pie. If we can help you with your estate planning, please do not hesitate to contact our office and set up a time to speak with one of our attorneys.
November, 2022
© 2022 Samuel, Sayward & Baler LLC
What’s New at Samuel, Sayward & Baler LLC – Don’t Miss Our October 2022 Newsletter
Don’t Miss Our October 2022 Newsletter
Attorney Suzanne Sayward discusses our most recent newsletter, for our Smart Counsel for Lunch Series. Please watch and if you have any questions or want to learn more then call us at 781 461-1020. Please find our newsletter below.
Life Estates
Five Life Events That Merit a Review and Update of your Estate Plan
Creating an estate plan (Will, Trust, Power of Attorney, etc.) is a key step in making sure that your wishes are carried out and that your family is taken care of in the way you wish when you pass away. But an estate plan is not a ‘one-and-done’ proposition. Life happens and when it does…well, it may be time to adjust your plan.
Read on for five situations that call for a review and update of your estate plan.
- Your marital status changes. In Massachusetts, a change in your marital status impacts your current estate plan (even if you haven’t created an estate plan!). Marriage confers certain rights, including the right of spouses to inherit from each other. How much of your estate your spouse is entitled to inherit depends on whether you have children together, whether either of you has children from a prior relationship, or whether neither of you has any children. Regardless of your situation, most people prefer to decide for themselves what their new spouse will inherit rather than have the government make that decision. Similarly, divorce impacts your estate plan in that your former spouse is effectively ‘deleted’ as a beneficiary under your Will and removed from fiduciary positions. While this is usually the desired outcome as to a former spouse, the law also removes any of your former spouse’s relatives as beneficiaries and from fiduciary positions which may not necessarily be the intention. For example, a former spouse’s sibling may still be the person you would name as the guardian for your minor children. Further, although the law may “remove” these individuals from your plan, you should update your plan to include appropriate people in their place as beneficiaries and fiduciaries.
- You have a child. The law in Massachusetts provides that if a person dies with a child surviving (or more remote descendants in cases where a child has predeceased the parent) the child will inherit from the parent before assets would pass to anyone else (other than a surviving spouse who is first in line to inherit). However, the law also deems that adult-hood is reached at age 18. That means children who inherit from parents who have not created an estate plan that provides otherwise, will be entitled to receive the full amount of their inheritance at age 18. Prior to reaching age 18, a child’s inheritance will be managed for her by a court-appointed conservator if the parents have not created a Trust to manage their estate for their children. Most parents: 1) would prefer to decide who should be in charge of managing assets for their children rather than have the probate court make that decision; and, 2) do not want their children to have full, unfettered access to the inheritance they leave them at age 18. Creating a Trust that designates the people who will manage assets for their children at their deaths and specifies the ages, or events, at which a child will be entitled to full access to their inheritance allows the parents make these decisions rather than the Commonwealth of Massachusetts.
- You or your spouse are diagnosed with a serious illness. While having a child and getting married (and for some, getting divorced) are joyous life events that merit a review and update of an estate plan, not all life events are good. If either you or your spouse is diagnosed with a terminal illness, or with a serious disease or condition such as Alzheimer’s, Parkinson’s, or dementia, that could result in the need for long-term care, reviewing and updating your estate plan is not just important but often urgent. There may be actions needed to reduce taxes or to preserve assets from being consumed by expensive long-term care costs that should be implemented right away. In addition, it is important to make sure there is documentation in place such as a robust durable Power of Attorney and a comprehensive, up-to-date Health Care Proxy so that you are able to make decisions for a spouse who may lose the ability to do so as a result of the illness. These documents need to be created while the maker still has the capacity to do so.
- Your spouse passes away. Reviewing and updating your estate plan when a spouse passes away is a prudent action to take.
People usually name their spouse to the primary fiduciary roles of Personal Representative, Attorney-in-fact, Health Care Agent, and Trustee. While there is often a back-up named to those roles, reviewing your estate plan to re-visit whether that designated alternate is still the right person to serve and updating your plan to designate a successor to your new primary fiduciary is a smart thing to do. - One of your fiduciaries or beneficiaries dies or becomes ill. When someone you designated as a fiduciary in your estate plan passes away or becomes ill such that they would no longer be able to carry out those duties, it is time to update your estate plan. Similarly, when a beneficiary dies or becomes ill, a review of the provisions of your estate plan as they relate to that person is sensible. Your estate plan most likely includes a provision directing what should happen to the share of a beneficiary who predeceases you. However, it has been my experience that clients’ thinking often changes when one of their beneficiaries predeceases them and they want to update their plan to change their distribution provisions. Similarly, if a beneficiary of your plan is diagnosed with a disease or condition such as Alzheimer’s or dementia, meet with your estate planning attorney to consider whether leaving money to that person is still a good idea. Many individuals who need long-term care are eligible for needs-based governmental benefits to pay for that care. Receiving an inheritance can cause them to lose that eligibility.
Above are just five of the life events that merit a review and update of an estate plan. Other changes such a significant increase in the value of your estate, relocation to another state, a disability affecting one of your beneficiaries, or even the passage of more than five or six years since your last estate plan review, are additional examples of life events that merit a review of your plan. If any of the above situations applies to you, don’t wait to contact your estate planning attorney to schedule a time to review and update your plan. If you have never created an estate plan, now’s a good time to do so. If we can help you create or update your estate plan, please contact our office to schedule a time to meet with one of our experienced estate planning attorneys.
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, elder law, estate and trust settlement and probate. 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.
September, 2022
© 2022 Samuel, Sayward & Baler LLC
Smart Counsel Series: The Nuts and Bolts of Reverse Mortgages and When to Use Them
To our Clients and Friends:
Please join us for the next presentation in our Smart Counsel Series on Thursday, September 15, 2022, from 6:00 p.m. to 7:00 p.m. virtually via Zoom.
Learn about reverse mortgages and when they may be beneficial in connection with long-term care planning by joining us for this program, The Nuts and Bolts of Reverse Mortgages and When to Use Them.
Reverse Mortgage (HECM) Loan Specialist Stephen R. Pepe, JD, of Reverse Mortgage Funding LLC and Attorney Abigail V. Poole will discuss the basics of reverse mortgages and when they may be a good option to protect assets from being spent-down on long-term care costs. Attendees will have an opportunity to ask questions.
Contact Holly Hayes at 781/461-1020 or hayes@ssbllc.com to reserve a spot for you and a friend.
Suzanne R. Sayward
Maria C. Baler
Abigail V. Poole
Megan L. Bartholomew
What’s New at Samuel, Sayward & Baler LLC – Don’t Miss Our July 2022 Newsletter
Don’t Miss Our July 2022 Newsletter
Attorney Maria Baler discusses our most recent newsletter, for our Smart Counsel for Lunch Series. Please watch and if you have any questions or want to learn more then call us at 781 461-1020. Please find our newsletter below.
Pay Attention to your Deed
A Deed is a document that determines the ownership of real estate. When you purchase your home or other real estate, or if property is given to you, the person transferring the property to you (the Grantor) gives you (the Grantee) a Deed to the property, which is signed by the Grantor and recorded at the Registry of Deeds. For most people, that is the last time they look at their Deed.
In the old days, an original Deed (or Certificate of Title for registered land) was an important document, and people often kept them in their safe deposit box. Over the past decade, land records in Massachusetts have become fully electronic. Once a Deed is recorded at the Registry of Deeds, the electronic copy of that document is the one that matters.
It is possible for you to look at the most recent Deed to your property (or to your neighbor’s property for that matter), your most recent mortgage, homestead, or any other document that has been recorded at the Registry of Deeds on the website for the Registry of Deeds for the county in which your property is located. Go to www.masslandrecords.com, select your county from the state map, and then search for your name.
From an estate planning perspective, your Deed determines the ownership of what is probably your most valuable asset – your home. As part of creating an estate plan, your estate planning attorney should review your Deed to make sure the way your property is owned is consistent with your estate planning goals.
There are various ways to own real estate in Massachusetts if two or more people own property, and the form of tenancy is generally noted after the name of the Grantee. For example:
- A Deed to “John Smith and Jane Smith as tenants in common” means that John and Jane each own a 50% interest in the property independent of each other. If John dies, his interest will not pass to Jane, and will instead pass according to his Will, or if he does not have a Will according to the intestate laws.
- A Deed to “John Smith and Jane Smith as joint tenants with rights of survivorship” means that if John or Jane dies, his or her interest will pass automatically to the surviving owner, and will not be controlled by the provisions of John or Jane’s Will.
- A Deed to “John Smith and Jane Smith, husband and wife as tenants by the entirety” is the form of joint ownership for married couples in Massachusetts, and as above in the case of “joint tenants”, the property will pass to the surviving spouse on the death of the first spouse.
- A Deed to “John Smith and Jane Smith”, with no tenancy indicated after the names of the Grantees, means the property is owned as tenants in common. Not indicating a tenancy on a Deed to two or more people is often an oversight that can have serious consequences. A probate proceeding will be required at the death of an owner of the property. This is particularly unfortunate when the lack of tenancy on the Deed goes unnoticed until just prior to the sale of the property, in which case the sale will be significantly delayed, if not lost, until a probate proceeding is commenced and a Personal Representative can be appointed for the deceased owner’s estate.
For estate planning purposes, property may be transferred from an individual’s name to a Trust to avoid probate, or for estate tax savings or asset protection reasons. However, if your Deed is and will remain in your individual name, it is important to make sure the way you own your property is consistent with your planning goals.
It is important that the Deed to your property not be changed by anyone but an attorney who is experienced in real estate matters. Mistakes in the names of the Grantor or the Grantee, in the type of tenancy indicated, or in the legal description of the property being purchased or transferred, can create serious title issues, delays, expense and no end of headaches.
I was recently surprised to hear from a client that a bank, in connection with a mortgage loan transaction, changed the deed to the client’s property to add a child on to the deed. This change, although accomplishing the bank’s objectives regarding the mortgage transaction, changed the manner in which the property will be owned following the client’s death in a way that was not at all consistent with the client’s wishes or the client’s estate plan. Transferring title to real estate falls under the category of things you should not undertake on your own, nor should you sign a Deed prepared by someone else without having an attorney review the Deed and discuss with you any implications of the change in ownership.
Changing a Deed can also have tax implications, can expose the property to the creditors of a new owner, and can void Homestead protection. There is no end to the headaches and unintended consequences that can result from changes to your Deed, whether properly drafted or not. Take a look at the Deed to your home, make sure that the ownership reflected on the Deed reflects your wishes, and if it does not, or if you are not sure, ask your estate planning attorney to review it with you to be sure it is consistent with your planning goals for that property.
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 immediate past 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.
June 2022
© 2022 Samuel, Sayward & Baler LLC