Wills

Five Reasons to Plan if your Estate is More than $1 Million

November 1, 2016 by Attorney Suzanne Sayward

Sue_144px Estate planning is important for every adult regardless of the size of your personal fortune. If your estate is more than $1 million, you have additional planning concerns and goals to address. When you consider the high real estate values in Massachusetts and the recent stock market trends, estates of $1 million or more are not as unusual as they used to be. Here are five reasons estate planning is especially important for larger estates.

Estate Tax. The Estate Tax is a transfer tax imposed on the value of assets that an individual owns at his or her death and is “transferred” to beneficiaries at death. There is a federal estate tax that very few people need to worry about since it is only imposed on taxable estates in excess of $5,450,000 (2016 amount). However, many people are not aware that Massachusetts imposes its own estate tax and that it applies to estates that are $1 million or more. Since the $1 million exemption is granted to each taxpayer, this means that a married couple has the opportunity to pass on $2 million free of Massachusetts estate tax. However, they can only do that if they do some estate planning. Since this planning will save about $100,000 for beneficiaries, it is worth doing, unless of course the Commonwealth of Massachusetts is your beneficiary of choice!

Preserving Privacy. Avoiding probate is a common estate planning goal because clients have heard that probate is expensive and takes a long time (both true!). There is another important reason to pass your estate to your intended beneficiaries outside of probate and that is to preserve your privacy. The Personal Representative of an estate must prepare an Inventory itemizing all of the probate assets and a detailed statement called an Accounting reporting all of the revenue received by the estate and all of the disbursements from the estate. This information must be filed with the Probate Court if the Personal Representative wants to obtain a decree declaring that the Personal Representative has completed the settlement of the estate satisfactorily. Many Personal Representatives want this blessing from the court as it means that no one can sue the Personal Representative for matters related to the estate settlement. The issue is that Probate Court records are, for the most part, public records available for perusal by anyone who wants to look at them (think nosy neighbors and greedy relations!). For those with larger estates (which may include a business, commercial real estate, or rental property), avoiding probate takes on an additional benefit in that it makes it much harder for someone to make a claim against an estate or challenge the provisions of a Will. Estate planning will allow you to pass your estate to your beneficiaries outside of probate, which will reduce the time and expense associate with estate settlement and preserve your privacy.

Asset Protection. Let’s face it – the more you have the more there is to protect. If you have worked hard your whole life and built an estate of $1 million or more, or if you have had the good fortune to receive an inheritance, you don’t want to lose it to a lawsuit, nursing home, or taxes, and you don’t want your children to lose their inheritance because of any misfortunes or a divorcing spouse. Assessing the risk to your estate from various “creditors and predators”-’ and exploring the options for minimizing or eliminating those risks is part of the estate planning process. Just as there are a myriad of risks, there are a variety of ways to address those risks. Each person’s situation is unique and the perfect solution for one person is not necessarily the right solution for the next person.

Easing the burden for the people who will settle your estate. One of the most common goals clients have is to make it as easy as possible for their families to settle their estates. Although not always the case, larger estates are usually more complex to settle. Putting your affairs in order by making sure your estate plan is up to date, that you have funded your Trust if you have created one, and that your instructions are clear is the best way to ease the burden on those left behind.

Leaving a legacy. For many people, leaving a positive and lasting impact on the world is very important. Whether it is touching lives as a teacher, performing relief work in a third world country or creating a reading program at the local library, leaving a legacy means creating a lasting impression for good. A legacy is not about money, but money can allow a person to create a foundation or make a gift that will continue to touch lives long after the giver is gone.

If you have an estate of $1 million or more, you no doubt worked hard to acquire it. If you haven’t taken steps to preserve your fortune for your intended beneficiaries from risks such as estate taxes, probate costs, and creditors and predators, don’t wait to do so. Meet with an experienced estate planning attorney who can advise you about your particular situation and help you ensure that your goals are met.

Attorney Suzanne R. Sayward 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. She is a partner with the Dedham firm of Samuel, Sayward & Baler LLC. This article is not intended to provide legal advice or create or imply an attorney-client relationship. No information contained herein is a substitute for a personal consultation with an attorney. For more information visit www.ssbllc.com or call 781/461-1020.

November 2016

Five Facts to Know about Wills

September 1, 2016 by Attorney Suzanne Sayward

Sue_144px Your Last Will and Testament is an important estate planning document that most adults should have and update from time to time. Although I have never met anyone who does not know what a Will is, I do hear many misconceptions from clients about Wills. Here are five facts to know about Wills.

Having a Will does not mean that your estate will avoid probate. Many times when I am meeting with new clients they tell me that they don’t need to worry about probate because they have Wills. Whether or not you have a Will is irrelevant to the question of whether or not your estate will need to be probated. Probate assets are accounts or real estate titled in your individual name that do not have a beneficiary designated to receive the asset at the death of the owner. Your Will controls the distribution of your probate assets and does not affect your non-probate assets. For example, if you have a Will that leaves your estate (i.e. probate assets) to your spouse and a life insurance policy that names your sister as the beneficiary, the life insurance proceeds will be distributed to your sister not your spouse. A probate proceeding will be necessary to transfer any probate assets to your spouse under the terms of your Will.

In Massachusetts we do not use joint Wills; each spouse needs to have his or her own Will. A joint Will is one in which two people (typically a husband and wife) sign one document that purports to be the Will of both signers. Massachusetts does not recognize joint Wills and even if it did, I would not advise creating a joint Will. A joint Will becomes irrevocable following the death of the first spouse, meaning that the surviving spouse could not change the Will. As we know, life is long and things change. The best decisions made today may be wholly inappropriate ten years from now. Robbing the surviving spouse of the flexibility to update the Will based on family, financial and other situations that arise following the death of the first spouse is likely to result in some very bad outcomes.

A Will is the most common way to name a guardian for your minor children. If you have minor children, you will designate a guardian and conservator for your children in your Will. The guardian is the person who will have actual custody of your children and will make decisions about your children’s health care, education, religious upbringing, and residence. The conservator is the person who will have legal authority over your child’s money. Your child’s money is the money he has in the bank, in a Uniform Transfers to Minors Account ( UTMA) or a Uniform Gifts to Minors Act (UGMA) account, or his inheritance if assets are left directly to the child instead of in trust (note, this is generally a bad plan). If you leave assets to your children in trust, the Trustee will manage and control the trust assets, not the conservator.

The Personal Representative named in your Will has no authority to act until the Probate Court approves the Personal Representative’s appointment. The Personal Representative (formerly called Executor in Massachusetts), is the person you name in your Will to settle your estate. It is not uncommon for a person who is named as the Personal Representative in a Will to believe that she can present a death certificate and the Will to the bank or other financial institution and that this will allow her to access the decedent’s bank accounts on behalf of the estate. This is not the case. The Personal Representative does not have authority to act until the Probate Court approves the appointment and issues “Letters of Authority.” Petitioning the Court for that approval and obtaining Letters of Authority is the start of the probate process.

A Will must be properly signed and witnessed. A document that is titled “My Last Will and Testament.” but is not properly executed will not be recognized as a Will by the Court. In order to be recognized as a valid Will in Massachusetts, the Will must be in writing, signed by the testator (the person making the Will), and witnessed by two different people. A Will does not need to be notarized in order to be valid. However, estate planning attorneys commonly attach a self-proving Affidavit to a Will so that the Will may be allowed by the Court without requiring the testimony of the witnesses following the death of the testator. The self-proving Affidavit recites the requirements of a valid Will: the testator is over age 18, is of sound mind, intends to sign his Will, is signing it willingly and voluntarily, and is not under any constraint or undue influence. The self-proving Affidavit does need to be notarized.

If you are over 18 years of age and do not have a Will, contact an experienced estate planning attorney to advise you as to the best plan for your particular situation. You can be sure that creating a Will will be part of those recommendations!

September 2016

Five Examples of DIY Estate Planning Gone Bad

May 6, 2016 by Attorney Suzanne Sayward

Sue_144px Self-sufficiency and resourcefulness are admirable traits – knowing how to change a tire, wallpaper a bathroom, or use duct tape to fix any number of problems can save both time and money. However, not all tasks should be tackled at home – dental work, anything to do with electricity, and getting bats out of the attic are examples of tasks for which most people should hire a professional. With the proliferation of DIY (do-it-yourself) kits and forms available online these days, estate planning may seem like one of those items that could be handled at home and save a lot of money. Beware – the consequences of not getting it right can be worse than a do-it-yourself root canal! Here are five real examples of DIY estate planning gone bad.

DIY Power of Attorney resulted in the need for a court conservatorship. The children of an elderly woman who was in a nursing home contacted me to undertake planning to protect assets against complete spend down on long-term care costs. Because of this family’s situation, there was an opportunity to preserve the home by transferring it out of mom’s name even though she was already incapacitated and in a nursing home. Unfortunately, a few years earlier, the children had helped mom “save money” by having her sign a Power of Attorney form they found on the Internet. The Power of Attorney did not include the authority they needed to undertake the planning that would allow them to preserve mom’s $800,000 home against a lien for long-term care Medicaid benefits. Because mom no longer had the capacity to execute a new Power of Attorney, we had to file for a Conservatorship with the probate court. This took a long time, required a number of medical certificates from mom’s doctors, and was expensive. Further, the court appointed another attorney to represent mom’s interests, paid for by mom. All told, it cost more than $7,000 and took approximately eight months to accomplish what could have been done in less than a week for a fraction of the cost if there had been a comprehensively drafted Power of Attorney in place (which would have cost far less than $7,000).

DIY long-term care planning meant loss of home to Medicaid lien. I recently had a very sad situation where a family lost the home that had been in their family for more than 100 years because they did not seek the advice of an elder law attorney when the mother of my client went into a nursing many years ago. Although Medicaid imposes a period of ineligibility for long-term care nursing home benefits if assets are given away within five years prior to applying for benefits, there are exceptions to that rule. This family would have qualified for one of those exceptions and the home could have been transferred to my client without any penalty. Had that been done, the home would have belonged to my client free and clear of any claim by the state for the cost of the mother’s nursing home care. Unfortunately, I was not consulted until after the mother had passed away. At that point, the Commonwealth had a lien against the ancestral home for an amount that exceeded the value of the property. Once the mother passed away, the opportunity to transfer the home to the daughter under one of the exceptions to the transfer rules and free of the Medicaid lien was lost. The house was sold and the family received nothing – all of the proceeds went to the state.

DIY estate planning meant loss of benefits for beneficiary with disabilities. I had a client contact me to help her settle the estate of her brother who had passed away at the age of 45 having never married and leaving no children. The brother had prepared his own Will leaving his estate to his two siblings. While it was good that he had the foresight to create a Will, it was not so good that he did not consult with an estate planning attorney. It turned out that one of the siblings was receiving needs-based governmental benefits because of a disability. Unfortunately, this sibling’s entitlement to an inheritance caused him to lose those benefits. While we were eventually able to requalify him for those benefits, we needed to go to court to do so. Further, the solution to the situation most likely means that a large part of the inherited wealth will be taken by the state when the disabled brother dies. With planning, the deceased brother could have created a trust that would have provided for his disabled sibling and ensured that any amounts remaining at his sibling’s death were distributed to his sister and not to the state.

DIY Will Necessitated Court Permission to Sell Real Estate. I had a client who came to see me because he was named as the Personal Representative (Executor) of his aunt’s Will. The Will left everything to four nieces and nephews, including my client. It was a fairly simple estate – aunty had only her home and a bank account. However, the Will did not grant the Personal Representative the authority to sell real estate. That meant that in order to sell the house, we had to file a petition with the court seeking permission to sell the real estate. This delayed the process and cost the estate several thousand dollars more than it would have cost to have a proper Will prepared by a lawyer.

DIY Realty Trust created defect in title to property. In the course of updating an estate plan for an new client whose husband had passed away and who had done all of their legal documents for them (no, he was not a lawyer), it was discovered that he had created a defect in the title to their home as a result of a series of transactions conveying their real estate in and out of trust. We had to engage the services of a real estate attorney to clear the title and record a variety documents with the Registry of Deeds. The cost of this was about $4,000 – far more than it would have been to engage an attorney to do it correctly from the beginning.

The above are just five examples of what I see in my practice on a regular basis. While it’s great to save money, be careful about being “penny-wise and pound-foolish” – getting it right the first time will usually save a lot of time and money in the long run. And remember, getting it right the first time requires seeking the assistance of an experienced estate planning attorney. Next to DIY documents, documents created by attorneys who do not practice primarily in this area can also create more problems than they solve.

Five ‘Don’t-leave-home-without-them’ Estate Plan Documents

May 1, 2016 by Attorney Suzanne Sayward

Sue_144px When it comes to long-term planning, everyone’s family and financial situation is unique. There is no “one-size-fits-all” formula that applies to the masses, which is why it is so important to obtain advice from an experienced estate planning attorney about your particular circumstances. However, there are some basic estate plan documents that every adult should create and update every three to five years, or whenever a major life change occurs. I often refer to these documents collectively as “the-don’t-leave-home-without-it” plan. Here are the five essential estate plan documents.

Durable Power of Attorney. A durable Power of Attorney is used to appoint a person to act on your behalf with respect to your financial affairs. The person who creates the Power of Attorney is called the “principal,” and the person who is appointed to serve is called the “attorney-in-fact.” The term “durable” means that the Power of Attorney will remain in effect even if the principal becomes incapacitated. The purpose of a durable Power of Attorney is to authorize someone to handle tax matters, sign checks, access financial accounts, sell a car, make decisions about investments, manage retirement accounts and enter into contracts on behalf of the principal most often in a situation where the principal is ill, injured or incapacitated. In situations where a person is incapacitated and has not created a durable Power of Attorney, family members must file a petition with the Probate Court and ask to be appointed as the incapacitated individual’s conservator in order to obtain authority over financial assets and decision making. This is expensive, time consuming, and requires a public proceeding. Plus, the Court may appoint someone who you would not have wanted to serve in that position.

Health Care Proxy. A Health Care Proxy is the legal document used in Massachusetts to appoint a person to make health care decisions on behalf of another. The person signing the Health Care Proxy is called the “principal.” The appointed person is called the “Health Care Agent.” It is a good idea to appoint one or more alternate health care agents to serve in case the primary agent is unavailable. The Health Care Proxy is by law a “springing” document. That means that the authority of the Health Care Agent does not arise until the principal’s attending physician determines that the principal lacks the capacity to make or communicate health care decisions. Once that determination is made, the Health Care Agent will have the authority to confer with doctors, nurses and other caregivers, have access to medical records, and will be able to make all medical decisions.

HIPAA Authorization. As noted above, the authority of the Health Care Agent to make decisions about your care, gain access to your medical records, or obtain information from your doctor or other caregivers arises only after your physician has made a determination that you are not able to make or communicate health care decisions yourself. While it makes sense that no one should be able to make health care decisions for someone who is capable of making his own decisions, when someone is ill or elderly, it can be helpful if family members are able to consult with doctors and other caregivers. However, the federal Health Insurance Portability and Accountability Act (HIPAA) imposes monetary fines on caregivers who disclose medical information without authorization to do so. While this sounds like a good idea, unfortunately it can result in family members being denied any information about a loved one’s status. A HIPAA Authorization is used to list the people you would want your doctors to speak with in the event you are ill.

Last Will and Testament. It may be surprising to readers that I did not list a Will as the number one “don’t-leave-home-without-it” document. The fact is, for many people, a Will is not the most important estate plan document. Don’t misunderstand me – I definitely advise clients that they should create a Will as part of their estate plan. However, a Will only controls the distribution of probate assets, which are accounts or property titled in a person’s name alone and for which there is no designated beneficiary. Many married couples have no probate assets when one spouse dies because all of the assets are either jointly owned, held in a trust, or the surviving spouse is named as the beneficiary of assets such as IRAs, life insurance and annuities. Even if you plan to leave no probate assets, a Will is still recommended, as you may not be able to control whether you have probate assets. For example, your employer may owe you salary or vacation pay, your estate may receive a refund on your car insurance or health insurance premiums, you may be owed money on a contract, etc. Also, your Will is the document used to appoint the Personal Representative (formerly called Executor) of your estate. Your Personal Representative is usually charged with the task of distributing your tangible personal property and filing final income tax returns. Lastly, if you have minor children, you would name the individuals who you want to serve as guardian and conservator of your children in your Will.

Living Will. A Living Will is the document used to express a person’s wish that no extraordinary measures or artificial means be used to prolong life in circumstances where the individual is suffering from a fatal or terminal illness and where such measures would not improve the quality of life. We do not have a Living Will law in Massachusetts, meaning that your physician will not act on the wishes you express in your Living Will, but will only take direction from your health care agent named in your Health Care Proxy regarding these types of decisions. Despite that, many people choose to sign a Living Will because they want to give their health care agent and other family members guidance regarding end-of-life decisions if they are not able to make those decisions for themselves.

While no one likes to think about these types of situations, it’s important to keep in mind that creating or updating these documents now will help alleviate worry later on and allow you to focus on your loved ones — not unfinished administrative work. Everyone’s situation is different and your estate plan is no doubt very different than your neighbor’s or your sister’s plan. Consult with a qualified estate planning attorney to make sure these documents are reflective of your own needs, wishes, and goals.

May 2016

Five Reasons to Update Your “I Love You” Will

February 10, 2016 by Attorney Maria Baler

In the spirit of Valentine’s Day, our topic for this month is “I Love You” Wills – a Will that leaves everything you own to your spouse outright at your death. This is the most basic form of Will — one that many couples create when they are young and never consider changing. On its face, it appears that there would be nothing wrong with such a simple Will. However, “I Love You” Wills are not appropriate for all couples, and in many cases deprive your spouse and family of the benefits a more sophisticated estate plan can provide.

Here are reasons why your “I Love You” Will may not be the right match for you:

Estate Tax Savings. If you leave all of your assets to your spouse at death, there will be no federal or Massachusetts estate tax payable because of the unlimited estate tax marital deduction available both federally and in Massachusetts. However, upon the surviving spouse’s death, all of the assets will be subject to estate tax. An estate tax will be payable to the Commonwealth if the value of those assets exceeds $1 million. If, instead of leaving all of your assets to your spouse, you left your assets to a properly drafted Trust for your spouse’s benefit, you could shelter up to $1 million of assets from Massachusetts estate tax. For many families, this can save $100,000 or more in estate taxes that your children or heirs would otherwise have to pay at your spouse’s death.

Long-Term Care Planning. If your “I Love You” Will leaves all of your assets to your spouse at your death, those assets (with limited exceptions) will be considered “countable” assets if your spouse requires long-term nursing home care and applies for MassHealth (Medicaid) benefits to pay for that care. A single person can have no more than $2,000 of countable assets in order to qualify for MassHealth. This means your spouse will need to spend down all of those countable assets on his or her care before being eligible for MassHealth benefits. Alternatively, you can create a Will that leaves your assets to a so-called “testamentary trust” for your spouse’s benefit. A properly drafted testamentary trust will allow the trust assets to be used for your spouse’s benefit during your spouse’s lifetime, but those trust assets will not be countable should your spouse require long-term nursing home care after your death. This not only makes qualification for MassHealth benefits easier, but means the trust assets can be used to provide items or services for your spouse that MassHealth does not provide. This may improve the quality of your spouse’s life long after you are gone.

Asset Protection. If your spouse is not experienced at managing money, or if your spouse is among the many people who are vulnerable to spendthrift tendencies or other vices that make it hard for them to hold on to money, an “I Love You” Will is a recipe for disaster. After your death, all of the assets will be in the control of your surviving spouse and will be vulnerable to the survivor’s spending habits and their all-too-frequent trips to Foxwoods. Or perhaps your surviving spouse is just too nice for her own good and would be vulnerable to the pleas of children, grandchildren, or friends who are down on their luck to “loan” funds that are never repaid. Consider whether leaving your assets (or at least a portion of them) in trust for your spouse and naming a Trustee (a responsible family member or friend) to manage money for your spouse may be a better alternative. Your spouse may lose some degree of control, but you can rest easier knowing that assets will be there to meet your spouse’s needs, and that your spouse won’t be the victim of financial exploitation, creditors, or her own spending habits.

Second Marriage – If you are among the lucky ones to have Cupid’s arrow hit home multiple times, an “I Love You” Will is probably inadequate to meet your needs. If you have children from your prior marriage, you may want to leave some or all of your assets to them, and your spouse may want to do the same for his or her children. In such a case, an “I Love You” Will that leaves all of your assets to your surviving spouse is not appropriate even if your spouse promises to leave the assets to your children at her death. The needs of the surviving spouse’s own children, a new spouse, financial exploitation, or long-term care needs can derail even the most sincere of promises, and leave children from a prior marriage with nothing.

Avoiding Probate – Even if you want your surviving spouse to have full control of all of your assets at your death, an “I Love You” Will is a public, costly and time-consuming way to achieve that result. Your Will will be filed with the probate court after your death, and any assets owned by you in your individual name will be subject to a probate proceeding. This process, although effective, can take a year or more to complete and means spending money on attorneys’ fees, publication costs, filing fees, and other expenses. Passing your assets to your intended beneficiaries outside of probate will reduce the time, costs, aggravation and loss of privacy typically associated with the probate process.

If you and your spouse created “I Love You” Wills many years ago, it is definitely time to review them and probably time for a change. Love may be blind, but your estate plan should see you through all of life’s twists and turns. Talk to an experienced estate planning attorney, who can help you create a plan that’s appropriate for your family.

Attorney Maria Baler is an estate planning and elder law attorney and a partner with the Dedham law firm of Samuel, Sayward & Baler LLC. She is also a 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.

February 2016

Health Care Proxies and Hospitalizations

January 8, 2016 by Attorney Maria Baler

A Health Care Proxy is one of the most important estate plan documents you can create. It names an individual to make health care decisions for you in the event a doctor determines that you are unable to make or communicate your own health care decisions. Under those circumstances, the Health Care Agent you name in your Health Care Proxy will step into your shoes and make health care decisions on your behalf. The Agent is required to make decisions based on the agent’s understanding of your wishes.

A Health Care Proxy is crucial in making sure you receive the type of care you want, and that decisions about care, medications, location of treatment, etc. are made by someone you trust and have chosen in advance. If you are unable to make your own health care decisions and you do not have Health Care Proxy, a guardianship proceeding will be required in the Probate Court so that the Court can appoint a legal guardian who will have the authority to make health care decisions for you. As you might suspect, this is a time consuming, expensive, and public process. Worst of all, it may mean that someone whom you would never have chosen to make these types of decisions is given control over your health care.

A Health Care Proxy created by your estate planning attorney will usually be more comprehensive than one you create using a basic Proxy form obtained online or provided by your physician. These more comprehensive Proxies often name multiple agents in succession to address the possibility that the first-named Agent is unable to act, state your wishes about organ donation, and give extensive and important additional powers to the Health Care Agent which allow your Agent to make decisions beyond what the basic Proxy may permit. This additional authority can help avoid a guardianship proceeding to seek authority to take health-care related actions that are not authorized in the basic Proxy form.

If you have a Health Care Proxy it is important that you give a copy of it to your primary care physician, and that you bring a copy of your Proxy with you when you are admitted to the hospital. Hospital admissions folks often ask patients if they have a Health Care Proxy, and if the patient says ‘no’, the admissions clerk offers them one to sign on the spot. If you have an existing Proxy, your doctor or the hospital will gladly accept that document. However, if you forget that you have created a Proxy, or forget to bring the document to the doctor or hospital, you will be asked (or in the case of hospital admission, required) to complete a new Proxy, which will automatically and perhaps inadvertently revoke your existing Health Care Proxy. This is a bad result since the Proxy you carefully and thoughtfully prepared and which is far more comprehensive than the hospital or doctor’s form is invalidated by the hospital’s form.

Any time you are seeing a doctor to whom you have not already provided your Proxy, going into the hospital, even if it’s only for a test, or beginning a course of treatment such as physical therapy, bring a copy of your Health Care Proxy with you and ask the provider to make it part of your medical records. This is the best way to insure that the person you have selected to make health care decisions for you will be able to so if necessary.

January 2016

What’s New? Samuel, Sayward & Baler LLC Year in Review

December 1, 2015 by Attorney Suzanne Sayward

Season’s Greetings everyone!

This past year has been filled with so many changes at Samuel, Sayward & Baler LLC that I feel like a recap for our clients and friends is in order.

New people!

Attorney Pamela B. Greenfield joined our practice as a senior associate attorney last January and we’re thrilled to have her with us! Pam brings 9 years of experience in the estate planning and elder law areas of practice. If you’re not sure where to turn when a family member needs long-term care nursing home care, make an appointment to see Pam.

In April, Attorney Abigail V. Poole became a member of the Samuel, Sayward & Baler LLC team in a junior associate attorney role. Abby is developing her practice as an estate planning, elder law and estate and trust administration attorney and is a welcome addition.

Victoria Cataloni came on board in May and provides valuable and much needed administrative support to our team. Tori works part-time at Samuel, Sayward & Baler LLC while attending college in pursuit of degrees in French language and philosophy (double major) with a minor in political science. Fun facts about Tori – she is fluent in French and Italian and is thinking about becoming a lawyer!

New space!

With all these new people came the need for more space! Lucky for us, the offices adjacent to our space became available in the spring and we were able to increase our office space without having to move. As part of the expansion, the entrance to our firm has moved from the right side of the building (as to you exit the elevator) to the left side all the way down the hall. If you have not been in to see us in the past 6 months or so, stop by to check out our beautiful new space next time you are in the area.

New website!

We’ve updated our website but retained all of the robust content found on our old site. Check out our new website and read our articles, blogsand newsletters. We welcome your feedback as we continue to add useful content and features to our website.

New logo!

Samuel, Sayward & Baler LLC has a new look! We’re thrilled with our new logo and motto, ‘Smart Counsel, for Life’ which Maria and I feel captures the spirit of our practice. We want to be the ‘go-to’ resource for our clients’ estate planning needs through all phases of their lives.

Looking forward.

We look forward to seeing you in the coming year and continuing to provide the caring, personal service that our clients have come to expect and appreciate from us.

Best wishes for a happy holiday season and the new year from all of us at

Samuel, Sayward & Baler LLC!

Five Reasons to Call Your Estate Planning Attorney

December 1, 2015 by Attorney Maria Baler

Estate planning attorneys try not to feel unloved or neglected. We realize that, although our clients like us, they don’t always enjoy talking to us. The conversations we have with our clients are sometimes difficult, filled with talk of illness, death, taxes, and challenging family situations. These are emotional topics that many people would rather not discuss, and instead ignore and hope the issues will resolve themselves. However, as estate planning attorneys we are able to see firsthand how the advice and guidance we provide makes a difference in the lives of our clients and their families.

Here are five reasons you should call your estate planning attorney:

1. You are diagnosed with a serious illness. If you are diagnosed with a terminal or chronic illness, sitting down with your estate planning attorney to talk about a time when you may become unable to make decisions for yourself or may pass away is probably not at the top of your bucket list. However, now is exactly the time you should be having those conversations, as difficult as they may be. Many types of illnesses will result in a period of incapacity. It is important to plan for your incapacity and death while you are still competent to make decisions about your future. A priority is to sign documents such as a power of attorney and health care documents that will ensure your health care wishes are known and trusted people are named to make financial and health care decisions on your behalf if necessary. Your attorney can also advise you about whether ownership of assets or beneficiary designations should be changed, or estate plan documents should be updated.

2. There is a death in the family. There is generally no need to immediately call your attorney following a death in the family. However, it is important to touch base with your attorney shortly after the funeral to determine what actions may need to be taken. Real estate may need to be secured, cleaned out or sold. Personal property may need to be distributed. If the deceased owned assets in his or her individual name, a probate proceeding may be required to transfer those assets to the deceased’s heirs. If the deceased created a trust, a successor Trustee may need to be appointed and the trust administered according to its terms. Depending on the size of the estate, an estate tax return may need to be prepared and filed, and estate tax may be due. Although an estate tax return is not due until nine months after death, there can be significant work involved in identifying and valuing the deceased person’s assets before the return can be prepared. Your attorney can assist with all of these matters and is also likely a good resource for referrals to individuals who can assist with non-legal tasks, such as the clean-out of a home or the sale of real estate.

3. Your child is (or You are) engaged to be married. A child’s engagement is often a joyous time. After the initial excitement has subsided, contact your estate planning attorney about whether you should be encouraging your child to enter into a prenuptial agreement prior to marriage. Prenuptial agreements control the division of a couple’s assets in the event of divorce or death. They can be especially effective to protect assets one member of the couple owns prior to marriage (such as an interest in a family business or vacation home that may have been gifted by parents) and to protect inherited assets if a divorce occurs after the child has inherited assets from her parents. The timing of a prenuptial agreement can affect its validity. The further in advance of the wedding the agreement is negotiated and signed, the better. Discussing a prenuptial agreement is not easy when your child may be giddy with excitement over her upcoming wedding and you want to talk about death and divorce. However, a properly drafted and negotiated prenuptial agreement is a family’s best defense against losing important family assets in the event of a divorce. Prenuptial agreements are also important in second marriage situations where each member of the couple has assets they will be bringing to the marriage and may have children from a prior marriage to whom they would like to leave an inheritance.

4. Your child is experiencing difficulties. For many parents, it is difficult to confront the reality that a child may have substance abuse, gambling, or creditor problems, or may be in a bad marriage. When these issues arise, it is appropriate for parents to take a hard look at their own estate plan and make changes if necessary. Consider whether the child is still an appropriate candidate to serve in a fiduciary capacity or if the child’s inheritance should be held in trust rather than distributed outright in order to protect assets for the child’s benefit. Your estate planning attorney can advise you about your options and help you decide what is best for your family’s situation.

5. Minor Changes may still warrant a Conversation. There are many less significant life events that still warrant a conversation with your estate planning attorney. The birth of a child or grandchild should prompt you to check whether the new family member will automatically be included as a beneficiary of your estate (if that is your intention), or whether changes to your documents are necessary. The purchase of a primary residence or a vacation home may necessitate updates to your power of attorney. A conversation about whether or not to hold the new property in trust is also advisable, especially if the property is located in another state.

Even if your life is relatively uneventful and there is no new reason to talk to your estate planning attorney, keep in mind the importance of keeping your plan up to date. If it has been more than five years since you have met with your estate planning attorney, take the time to sit down with your attorney to review your plan and ensure that it is consistent with your current goals.

Five Conversation Starters for the Thanksgiving Table

November 1, 2015 by Attorney Suzanne Sayward

Thanksgiving is often a time when family members both young and old come together to eat too much good food and watch too much football. What better time to start a discussion about estate planning than Thanksgiving, when the family is gathered together? Here are five questions to get the conversation started.

Have you planned for how you will pay for long-term care if it’s needed? Many children find it awkward and uncomfortable to bring up the subject of money with their parents. However, planning ahead for the possibility that a parent will need long-term care is crucial. The cost of long term care, whether at home, in assisted living, or in a nursing home is very high. The monthly cost of a nursing home in Massachusetts is around $12,000 and the cost of round-the-clock care at home is often more than that. Long-term care costs are not generally covered by health insurance (Medicare). These costs are generally paid through a combination of: 1) paying privately for care; 2) long-term care insurance; or 3) Medicaid. Paying privately means that the care recipient simply writes a check for the cost of the care each month. Long-term care insurance is insurance purchased for the purpose of paying for long-term care. Medicaid is the state and federally funded program that will pay for long-term care if a person meets the financial eligibility criteria of the program. In general, this means having not more than $2,000 in so-called countable assets. If you are over age 60 and have never thought about how you would pay for long-term care, now is a good time to explore your options.

Do you have a Will and Trust to protect your young children if you die? It’s not just older folks who need to think about planning for the future. Many young parents put off estate planning because they’re too busy, they can’t agree on who should be named as guardian for their minor children, or their budgets are tight. However, as parents our job is to protect our children. Making sure that your children are not the subject of a protracted custody battle in the event of your death by choosing the person, or people, who would raise your children if you could not, is a fundamental duty of all parents. Further, many people are surprised to learn that the law considers 18 the perfect age at which to receive an inheritance, regardless of the amount. For many parents, the thought of their child receiving $5,000, never mind $50,000 or $500,000, at age 18 is terrifying. A trust is an excellent way for parents to protect assets for children and designate appropriate stewards (Trustees) to manage the money until the children have matured.

Do you have a Durable Power of Attorney? A Durable Power of Attorney is a legal document in which the maker (the principal) designates a person (the attorney-in-fact) who will have the authority to manage the principal’s financial affairs. It is used to address the possibility of a future incapacity. Since anyone could experience a period of incapacity regardless of age, every adult, whether age 18 or 88, should have a Durable Power of Attorney. Without a Durable Power of Attorney in place, your family will be forced to pursue a conservatorship through the probate court if you are in an accident or suffer a medical event that renders you unable to pay your bills, manage your investments, file an application for long-term care benefits, sign a tax return, etc.

Do you have a Health Care Proxy and have you discussed your wishes for care with your Health Care Agent? As with a Durable Power of Attorney, every adult should have an advanced directive designating the person (the Health Care Agent) who is authorized to make health care decisions in the event of incapacity. In Massachusetts, that is called a Health Care Proxy. However, it is not enough to simply sign a Health Care Proxy; you should have a serious discussion with your Health Care Agent regarding your wishes for managing your health care if you are not able to speak for yourself. Many people think of the Health Care Proxy as the “pull the plug” document. However, the reality is that there are many types of decisions that need be made for a person who is incapacitated. These decisions may affect the quality of your final days. A great resource to help you dive deeper into this discussion is Being Mortal by Atul Gawande, M.D. Check it out here and start the conversation.

When is the last time you reviewed your estate plan with your attorney? As we all know, time rushes by. This seems especially true as we get older. It is not unusual for clients to say, “I can’t believe it’s been 10 years since we were here – it seems like it was just a couple of years ago.” Your estate plan is a work in progress and it needs to be reviewed and updated on a regular basis. Life happens; things change. It may be that issues that were not of concern when the documents were signed are now important. This could include the need for long-term care planning, tax planning, or creditor protection planning for a child who is getting divorced. Ask your parents to take a minute to check the date on their estate plan documents to see when they last updated them with their attorney, and then do the same yourself. If it’s been more than five years, chances are a review is in order.

Bonus question: Once you’re done covering the hard stuff, you can wrap up with, ”So how ‘bout those Pats?”

To all of our readers from all of us at Samuel, Sayward & Baler LLC, warm wishes for a wonderful Thanksgiving!

November 2015

Off to College – Hopefully with a 529 Plan!

October 1, 2015 by Attorney Maria Baler

Sending my first and only child off to college this fall has given me a new appreciation for the value of Section 529 Plan accounts. Many of our clients set up these accounts for their children or grandchildren when they are young, with the intention that the account will be there to be used when it’s time to pay for college. I will take this opportunity to say thank you, on behalf of all of the beneficiaries of 529 Plans out there, to those of you who have had the foresight to set up these accounts. When paying for college, every little bit of assistance helps!

It is important to understand that 529 Plan accounts are not treated the same for all purposes. In addition, the identity of the owner of the account can affect how the account is treated. From an estate and gift tax perspective, the law views the amount contributed to a 529 Plan account as a gift to the beneficiary of the account (the child or grandchild). If the owner of the account passes away, the balance of the account is not added to the owner’s other assets when determining if an estate tax must be paid or when calculating the estate tax due. That being said, the owner of a 529 Plan account retains certain rights, such as the right to change the beneficiary of the account, and to withdraw the contributed funds from the account (although if withdrawals are made for reasons other than to pay for education expenses income tax plus a penalty will be due on the withdrawn amount).

New Year2 From a long-term care planning perspective, the funds in a 529 Plan account will be considered “countable” assets in determining the owner’s eligibility for Medicaid benefits (the public benefits that pay for long-term nursing home care). Depending upon the owner’s situation and the value of other assets, the 529 Plan assets may have to be spent on the owner’s care before the owner will be eligible to receive Medicaid benefits. For this reason, if the owner’s goal is to ensure the funds in the 529 Plan account are available for education, and the owner is willing to give up control of the account and access to the funds in the future, it may be advisable to transfer ownership of the account to the parent of the beneficiary/child or grandchild. This should not be done hastily as the transfer of the ownership of the account will be a disqualifying transfer for Medicaid eligibility purpose. In addition, careful consideration should be given to whether the prospective new owner is financially responsible, and, if relevant, the impact on financial aid if the account is owned by the student’s parent vs. grandparent.

Finally, keep in mind that the owner of a 529 Plan account has the ability to designate a successor owner. This is something that should be done in all cases. Without a successor owner named, the account will be subject to probate at the account owner’s death, which involves cost and delay in access to the funds for a period of time. Probate can be easily avoided by designating a successor owner.