SSB
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In This Issue
Message from the Partners
Five Facts You Should Know About Serving as a Trustee
Take the Time Now to Organize Information for Those You Will Leave Behind
As Your Child Reaches Age 18 and Beyond, Make Sure You Have Legal Permission to Provide Support and Guidance in an Emergency
European and U.S. Debt Crisis 2011: What Investors Can Do to be Safe and Have Peace of Mind
Firm News
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To Contact Us
Samuel Sayward & Baler 
 858 Washington Street, Suite 202
Dedham, MA 02026
 
Phone: (781) 461-1020
Fax: (781) 461-0916
 
 
 
www.ssbllc.com
News from
Samuel, Sayward & Baler LLC

July 2011

group attorney photo
Attorneys Suzanne Sayward, Maria Baler, and Steven Joshua Samuel 

Message from the Partners

 

Dear Clients and Friends,

 

As the dog days of summer continue, we hope you and your family are staying cool and enjoying some time off.

 

In this issue you will find the final article in our three-part series on understanding Trusts. This article, written by Attorney Sayward, focuses on the duties of a Trustee. (If you missed the first two columns in this series, we invite you to visit our website at www.ssbllc.com.)

 

We are also featuring an article for parents of young adults. It's common for many parents to assume they will always have access to their children's medical and financial information; however, once a child turns 18, he or she is legally an adult. Attorney Sayward's article, "As Your Child Reaches Age 18 and Beyond," provides important information for parents. Whether or not you have a student heading off to college next month, it is important you have a discussion with your young adult children about being able to obtain access to medical and financial information.

 

Attorney Baler's article, "Take the Time Now to Organize Information for Those You Will Leave Behind" emphasizes the importance of compiling the documents and information that will be needed to settle your affairs after your death. As she explains, by gathering legal and financial documents and related information into one centralized location now, you will greatly reduce the burden on your loved ones later on.

 

In his financial article, Attorney Samuel shares pragmatic tips for how to invest wisely and weather the volatile economic climate. While headlines continue to paint a grim picture of the economy, he offers some basic tips you can follow to help minimize your risk and protect your investments.

 

We have recently revised our website to make it easier to find useful information about the firm and our practice areas. Our site also includes copies of the newspaper articles we've published and past editions of our newsletter. We invite you to visit us on the web at www.ssbllc.com.

 

Last but not least, we are pleased to announce the newest addition to our staff, Grace Pena, who joined the firm in July as a paralegal. Grace brings to the firm more than 10 years of experience and will work for Attorneys Sayward and Baler providing a broad range of services to our clients.  

 

We welcome your feedback as well as ideas for specific topics you would like to see in future newsletters. We also welcome new subscribers so please feel free to send us email addresses or forward this newsletter to friends and family members!

 

Enjoy the rest of the summer!

 

Steven Joshua Samuel

Suzanne Sayward

Maria Baler

Five Facts You Should Know About Serving as a Trustee
  

By Attorney Suzanne R. Sayward

 

We conclude our three-part series on understanding Trusts with a column about what it means to serve as a Trustee. (If you missed the first two columns in this series, visit our website at www.ssbllc.com .)

 

In my practice, it is very common for clients to name adult children or other family members as successor Trustees to serve upon the incapacity or death of the client. Serving as a Trustee is a privilege and an honor, but it is also an enormous responsibility and can be a time-consuming, challenging job. Most of the time, neither the "appointer" nor the "appointee" has a good understanding of what is involved. The duties of a Trustee are numerous and varied, depending upon the type of trust, the terms of the trust, and the trust assets. This month's column focuses on five duties common to all Trustees.

 

1. A Trustee owes a fiduciary duty to the beneficiaries.  A Trustee is a "fiduciary,"' meaning that he owes the highest duty of loyalty, good faith, and fair dealing to the beneficiaries of the Trust.  Generally speaking, that means the Trustee must always act in the best interests of the beneficiaries, not in his own best interest. Examples of actions that would be considered a breach of a Trustee's fiduciary duty include using Trust assets to invest in a business owned by the Trustee, purchasing real estate from the Trust for the Trustee's personal use, or personally profiting from his service as Trustee by taking a commission on the sale of real estate. It goes without saying that a Trustee who misappropriates Trust monies has breached his fiduciary duty.

 

2. A Trustee has a duty to carry out the terms of the Trust.  Sometimes clients are under the impression that a Trustee is in the position of making all decisions regarding distributions from the Trust. While some Trusts may grant the Trustee discretion to make certain types of distributions, the Trustee may not act contrary to the terms of the Trust. For example, if the Trust instructs the Trustee to sell all real estate and distribute the proceeds equally among the beneficiaries after paying expenses, the Trustee does not have the authority to do otherwise. The beneficiaries have the right to know the terms of the Trust; therefore, the Trustee may not refuse to divulge information about their interests.

 

3. A Trustee has a duty to account to the beneficiaries. The Trustee has a duty to keep accurate records of all Trust financial activity and to share that information with the Trust beneficiaries on a regular basis. The reports of financial activity that a Trustee provides to the Trust beneficiaries are called Trust accounts. The Trustee's accounts should include an inventory of the assets held by the Trust, the value of the Trust assets, the income earned on the assets in the Trust, any gain or loss realized from the sale of Trust assets, and the expenses and distributions paid out of the Trust. The beneficiaries have the right to inspect the Trustee's account and to object to any item they may find inappropriate.

 

4. A Trustee has a duty to safeguard the Trust assets.  The Trustee is responsible for safeguarding the assets held by the Trust. For example, if the Trustee fails to adequately insure the house and it burns down, the Trustee is responsible and will have to make up the loss from the Trustee's personal monies. Similarly, the Trustee has a duty to invest the Trust assets in a reasonable and prudent manner. If the Trustee fails to do so and the trust assets lose value, the Trustee can be held responsible.   In some circumstances, Trustees must obtain a surety bond from a bonding agent to ensure the beneficiaries will be protected in the event the Trustee fails to adequately protect the Trust assets.

 

5. A Trustee has a duty to properly administer the Trust assets. The Trust assets must be kept in the name of the Trust and not in the Trustee's personal name. The Trustee must not co-mingle the Trust assets with her own funds. In most cases, the Trust will have its own taxpayer identification number assigned by the IRS. The Trustee must file all required income tax returns and pay the tax properly owed by the Trust. The Trustee must provide the beneficiaries with the tax documentation the beneficiaries need to file their own income tax returns.

 

The above represents some of the broad duties that are required of every Trustee. The specific tasks involved in serving as a Trustee are numerous and varied. If you find yourself in the privileged position of being named as a Trustee for a family member or friend, consult with a qualified attorney for advice about fulfilling your duties and successfully carrying out your responsibilities as Trustee.

 

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. 

Take the Time Now to Organize Information for Those You Will Leave Behind

MCB Death Box 

By: Attorney Maria C. Baler

 

A recent article published at msn.com, "Documents You Need Before You Die" highlights the importance of organizing your documents now so that family members will be prepared to handle your affairs after your passing.

 

In our practice we spend a lot of time assisting clients after a family member has died. Although this is never an enjoyable process, one thing is clear from our experience helping clients after a loved one has passed away: the more preparation that has been made prior to death, the easier it is for the family to move forward afterward.  

If the subject of your own death is a difficult one for you to think about or discuss, you are not alone. But think about this - after your death your family will need to act. They will need to identify your assets and debts, determine what benefits may be available to your surviving spouse or family members, file claims under life insurance or annuity policies, and access safe deposit boxes. Real estate must be insured and taxes paid until property can be sold or transferred to heirs. The list of items that must be addressed is numerous and varied, based on the nature and extent of your assets.

One simple step that everyone can take to make it easier for family or loved ones is to create a file or box that contains all of the information they will need to settle your estate and tie up the many loose ends.  Identify the file or box with an obvious label, such as "Information You Will Need At My Death."

Here is a list what items should be included in the file, or, if it is more convenient, include a note explaining where the documents or other items can easily be found:

  1. Copies of your current estate plan documents (Wills, Trusts, Powers of Attorney, Health Care Documents) and a note indicating where the original documents are kept (i.e. at an attorney's office, in a lockbox at home, in a safe deposit box, etc.).
  2. A list of the bills you pay each month (i.e. mortgage, utilities, car loan) and a list of those paid less frequently (i.e. life insurance, credit cards, real estate taxes), including the name and contact information for the payee, account number, whether you receive paper or electronic bills, and how the bills are paid (i.e. by check, via online bill payment, via automatic deduction and from what account). If paid by check, note where the checkbook is located. If paid online, include instructions on how to access online banking, including website, login and password.
  3. A list of your assets. For bank, investment, and retirement accounts, provide the name of each institution, its contact information (including any broker or investment manager), and the account number. If the institution is online only, provide login and password information as well. And don't forget those accounts that you don't use on a daily basis - such as college savings plans, UTMA or UGMA accounts, and all of those forgotten passbook savings accounts that are payable on death to your grandchildren.
  4. A list of life insurance policies, annuities, or other assets that will pay a benefit to your beneficiaries or survivors at death, including the name of the company, account number, contact information for the company or your agent, and the named beneficiary.   Also include the original contracts or policies, or a note where they can be found.
  5. A list of the names, addresses, and contact information for your current and former employers from whom you may be receiving benefits, or from which pension, group life insurance, health insurance, profit sharing, 401k, stock options, or other benefits may be payable to family members or beneficiaries following your death.
  6. Contact information for your health insurance company and your policy number to enable heirs to obtain payment of medical bills received after death.
  7. Information regarding your automobile or other vehicles owned, including the vehicle's title or where it can be found, name of insurance company, and information regarding any automobile loan that is still outstanding.
  8. Information regarding any disability or long-term care insurance policies that will need to be cancelled, including the name of the company, policy number, agent contact information, and the amount and frequency of the premiums paid. A premium refund may be available to your heirs.
  9. A list of all sources of income - Social Security, pension, annuity, child support, alimony, rental income, veteran's benefits - and whether the income is payable by check or direct deposit to a particular account.
  10. A list of credit cards and account numbers, so your heirs can easily call and cancel them.
  11. A list of any credit card rewards or airline frequent flier programs to which you belong.
  12. A note regarding where to locate birth, marriage, or naturalization certificates, divorce decrees, adoption paperwork, military records, passports, and old income tax returns.
  13. A list of safe deposit boxes, storage lockers, or other off-site locations where property, documents or assets are located, and how to gain access, including safe combinations or the location of safe deposit box keys.
  14. Home alarm codes, where to locate keys to boats, cars, second homes.
  15. A list of places in your home or elsewhere where you may keep assets, including the fact that there is a wad of cash in the cookie jar in the cabinet over the stove. Assets like this often remain undiscovered.
  16. A list of trusted professionals who can assist your family following your death - your attorney, tax preparer or accountant, financial advisor - and their contact information.

This is by no means an exhaustive list. Your specific situation and assets will dictate what it is your family will need to know when you are no longer available to provide this information. Try to put yourself in their shoes and give them a roadmap.   Once you have this information together, there are two other things you need to do: (1) tell a friend or family member - perhaps the person you have named as your Executor in your Will or attorney-in-fact under your Power of Attorney - that the file exists and where it is kept, and (2) review the information periodically and update it as necessary.

The time you take to put this information together now and keep it updated will greatly benefit your loved ones in the future when it comes time to settle your affairs.

SRS College KidsAs Your Child Reaches Age 18 and Beyond, Make Sure You Have Legal Permission to Provide Support and Guidance in an Emergency

 

By Attorney Suzanne R. Sayward  

 

The summer before a teenager heads off to college is usually filled with anticipation for that big move away from home. In addition to purchasing those extra long sheets for the dormitory bed, you should ensure your student has in place the legal documents that will allow you to obtain information about his or her health care and other important matters while at school.

 

Whether or not college is the next step, parents should discuss the following important documents with all their children who are age 18 or older:

 

Durable Power of Attorney - This is the document that you use to designate a person who can legally act on your behalf. Parents often do not think about the fact that once their children reach age 18 they are adults in the eyes of the law and the parent no longer has any authority to act on their behalf. A Durable Power of Attorney signed by the child granting the parents legal authority to act on the child's behalf allows parents to deal with banking snafus, tax issues, and obtain access to credit card information and bank accounts.

 

Health Care Proxy - A Massachusetts Health Care Proxy is the legal document used to appoint the individual who would make a health care decision in the event you are not able to do so for yourself. A Health Care Proxy is vital in order for a parent to obtain information about or make decisions for an adult child who has a serious health issue.

 

HIPAA Authorization - The Massachusetts Health Care Proxy is what is known as a "springing" document, meaning the authority of the Health Care Agent to obtain information or make decisions only springs into action when the physician determines the child is not able to make decisions for himself. Therefore, it is also important to have in place a HIPAA Authorization form. HIPAA is the federal privacy law that imposes fines on medical care givers who share information about a patient without permission. This means if your adult child is in the hospital or the infirmary at college, you as the parent will not be able to obtain information about your child's situation unless you have written authority to do so. The HIPAA Authorization form gives the parent that authority.

 

FERPA Authorization - In addition to the federal law which protects health care information, the Family Educational Rights and Privacy Act (FERPA) precludes colleges from sharing any financial information about a child's financial or academic records with the parent without written authorization from the student to do so. Many colleges offer a form that students can sign authorizing parents to obtain this type of information.

 

So all you parents of children who are 18 and older, do not forget to speak with them about putting these documents in place so you are able to access all the necessary information in the event of an urgent medical or financial situation.

European and U.S. Debt Crisis 2011: What Investors Can Do to be Safe and Have Peace of Mind

SJS Financial 

By: Steven Joshua Samuel

 

This year's debt crises in the U.S. and Europe have resulted in daily headlines warning of stock market collapse. Financial pundits are inundating investors with contradictory predictions of extreme inflation or its opposite, deflation. Even more disconcerting: traditional safe investments seem less safe. For example, U.S. Treasury bonds, usually the safest of the safe, are producing very little interest and face the previously unthinkable threat of a U.S. government default if politicians fail to compromise on the U.S. Debt Ceiling. Gold, real estate, and commodities, often a refuge if inflation occurs, are all uncertain at the moment for various reasons and would prove a poor choice if predictions of inflation are wrong.

 

What can an investor do to achieve peace of mind amid this unstable financial climate?

 

First, review your emergency reserves. What is the amount you believe is sufficient to address a job loss, an illness, or the replacement of a costly item, i.e., a car? If you don't have that amount in an accessible bank or a conservative money market account, your first priority is to build these important reserves. If you plan for non-emergency spending in the next one or two years, i.e., a vacation, be sure to contribute to this type of account judiciously -- without jeopardizing your emergency reserves. And, be careful about accumulating cash as a way to avoid risk, since purchasing power of cash can be significantly hurt by inflation.

 

Second, before making changes to investments, recall the strategies that worked in other financial crises. For example, between October 2008 and March 2009, the Standard & Poor Index of 500 large U.S. companies dropped nearly 60%. Since March 2009, investors who made few changes have seen their holdings recover while those who sharply reduced stock holdings or made other radical changes have not done as well.

 

Third, review with your financial advisor whether you are comfortable with how your investments are now diversified among the various categories of stocks, bonds and cash, and alternative investments, i.e., real estate, gold, commodities. For example, do your stock holdings include U.S. and non-U.S. companies? Large, medium, and small companies? Growth and value companies? Do your bond holdings include corporate and government bonds? U.S. and non-U.S. government bonds?

 

Fourth, if you decide to make changes, consider some basic recommendations that are commonly shared among the investment advisor community. For example, bonds of all types with longer maturities (20 years or more) are likely to fare worse than shorter maturities (10 years or less) in the current uncertain environment. Next, consider reducing any holdings you deem more risky than comfortable for you, such as "high yield" (also called "junk") bonds.

 

The key to minimizing any set-backs and effectively working toward your financial goals in a turbulent market is to act thoughtfully, with moderation, and not panic. And, as always, consult a trusted financial advisor.

  

Steven Samuel of Samuel Financial is located at 858 Washington St. Dedham, MA 02026 and he can be reached at (781) 461-6886.  Please visit our website at www.samuelfinancial.com.  Securities and advisory services offered through Commonwealth Financial Network, member FINRA/SIPC, a Registered Investment Adviser. Commonwealth does not offer legal advice.

 

Firm News 

Grace 

Samuel, Sayward & Baler welcomes its newest staff member, Grace Pena, who joined us as a paralegal in July. Grace will work for Attorneys Sayward and Baler to provide a broad range of services to clients. Grace has worked in the legal field for more than 10 years. Everyone at the firm looks forward to working with Grace.

 

In June, Attorney Suzanne Sayward traveled to New Orleans to attend a two-day conference sponsored by the Veterans Advocates Group of America. Attorney Sayward attended the conference to broaden her knowledge about veterans' benefits, which she writes about for the firm's regular column in The Dedham News Transcript this month.

 

The firm recently updated and revised its website. We invite you to visit us at www.ssbllc.com and welcome your comments and feedback.

 

And, as a reminder, appointments are scheduled by Jennifer Harlow in our office. Please call Jen to schedule an appointment or e-mail her at harlow@ssbllc.com.

 

To read our columns visit www.ssbllc.com and click on Articles.