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How to protect yourself from undue influence · The Legal Exchange

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  Speaker 1: This is the Legal Exchange with Todd Lutsky from the
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  Speaker 1: law firm of Cushing and Dolan and Susan Powers of
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  Speaker 1: the Armstrong Advisory Group. Each week, Todd and Susan will
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  Speaker 1: discuss many topics, including estate planning, how to avoid probate,
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  Speaker 1: and protecting your money from a nursing home. If you
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  Speaker 1: need assistance in any of these areas, or have a
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  Speaker 1: question about another issue that may affect your future, call
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  Speaker 1: to make an appointment. That's eight sixty six eight four
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  Speaker 1: Here are your hosts, Todd Lutsky and Susan Powers.
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  Speaker 2: Welcome into the Legal Exchange with Todd Lutsky. I'm Susan Powers,
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  Speaker 2: a financial advisor with the Armstrong Advisory Group, and I'm
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  Speaker 2: joined by Todd Lutsky, a partner with a law firm
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  Speaker 2: of Cushing and Dolan with a master's in taxation. Welcome Todd.
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  Speaker 2: How are you today?
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  Speaker 3: I am never better in you?
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  Speaker 2: I am great? Thank you? What to have for us
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  Speaker 2: this week?
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  Speaker 3: I've got two cases. We're going to go to Hawaii.
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  Speaker 3: We've got a Supreme Court case why. Yeah, it's interesting.
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  Speaker 3: It's simply a case where you know, a medicaid application
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  Speaker 3: got denied, and it'll be interesting to see why and
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  Speaker 3: how and basically how this medicaid application process works, because
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  Speaker 3: we don't get into that a lot. So and also
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  Speaker 3: of course why if they had done planning, they wouldn't
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  Speaker 3: have had any of these problems. That's always another not judging,
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  Speaker 3: but we're not judging, so that'll be very interesting and
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  Speaker 3: I think educational. And then we head over to Montana,
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  Speaker 3: so we're out west most. I got a Supreme Court
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  Speaker 3: case out there dealing with you know, undo I basically
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  Speaker 3: call this case undue influence is always lurking. It's always
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  Speaker 3: lurking out there, and that's sort of what happens here
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  Speaker 3: where there's some undue influence. But I think maybe the
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  Speaker 3: better argument also might have been, you know, lack of capacity.
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  Speaker 3: But again, the bigger problem is had you done this,
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  Speaker 3: they were trying to protect a piece of property for
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  Speaker 3: the daughter. Had you just set up a irrevocable trust,
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  Speaker 3: I think you would have solved all of these problems
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  Speaker 3: in this case, and we'll show you how.
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  Speaker 1: So.
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  Speaker 3: I think lots of interesting cases today which both of
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  Speaker 3: them actually tie into the guide that we're giving away,
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  Speaker 3: which is the Top seven estate planning trust Both of
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  Speaker 3: these cases would have none would have gone away. I
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  Speaker 3: think had we done trust planning. And again, the type
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  Speaker 3: I think it's little something for everyone in this guide,
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  Speaker 3: call and get it. Top seven estate Planning Trusts eight
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  Speaker 3: six six eight four eight five six nine nine or
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  Speaker 3: Legal Exchange Show dot Com again eight six six eight
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  Speaker 3: four eight five six nine nine or Legal Exchange Show
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  Speaker 3: dot Com. And now let's head over to Hawaii. So
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  Speaker 3: this case is interesting. So it's I love the nursing
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  Speaker 3: home name Aloha Nursing Home.
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  Speaker 2: Yeah, I picked out one. If I have to go into.
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  Speaker 3: One, I'm going there. So the Aloha Nursing Home accepts
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  Speaker 3: Jane as a permanent resident on March twenty eleven based
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  Speaker 3: on the Department of Health and Human Services approved Medicaid application.
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  Speaker 3: So she's in Okay on Medicaid and husband was the
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  Speaker 3: one helping her. He was the authorized representative when you're
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  Speaker 3: filling out the forms. But in November of twenty twelve,
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  Speaker 3: the husband lost capacity and the Aloha Nursing Home terminated
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  Speaker 3: Jane's eligibility. Now, don't get confused. His his capacity should
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  Speaker 3: have nothing to do with her Medicaid eligibility, and it
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  Speaker 3: really didn't. But it terminated Jane's eligibility because they discovered
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  Speaker 3: that the house they must be the state discovered that
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  Speaker 3: the house was owned in a revocable trust. Come back
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  Speaker 3: to that, Aloha never received any notice of termination from
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  Speaker 3: the state. They only found out because the bills, of course,
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  Speaker 3: weren't being paid by the state. So Aloha tried to
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  Speaker 3: work with the family to get the house transferred out
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  Speaker 3: of the trust, which is what you need to do.
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  Speaker 3: But they had to no avail.
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  Speaker 4: Well.
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  Speaker 3: Aloha then decided to reapply for Medicaid, but was denied
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  Speaker 3: because of they don't have financial eligibility. Why because you
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  Speaker 3: didn't get the house out of the trust. Again, I'll
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  Speaker 3: come back and explain the importance of the house, primary
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  Speaker 3: residence and the trust situation in a minute. Okay again,
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  Speaker 3: Department of Health and Human Services did not provide notice
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  Speaker 3: of denial to Aloha Well. In June of twenty fourteen, finally,
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  Speaker 3: Jane died Well. Aloha then met with the Department of
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  Speaker 3: Health and Human Services saying I'm seeking payment from twenty
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  Speaker 3: twelve when you terminated Medicaid until her death in twenty
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  Speaker 3: fourteen because I did provide services, and the DHS said, sorry,
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  Speaker 3: there was a mistake. She should have never been put
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  Speaker 3: on Medicaid to begin with. Why the house situation, so
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  Speaker 3: they said, you know, too bad, too bad for you. Well,
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  Speaker 3: the court went back and forth, back and forth on
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  Speaker 3: how the nursing home had no standing and was not
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  Speaker 3: the authorized representative, not the applicant filing, you know, for
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  Speaker 3: or helping the applicant file, so they really could not
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  Speaker 3: even request the fair hearing right because they have no standing. Well,
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  Speaker 3: They didn't like that, so they appealed. The Supreme Court said, ultimately,
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  Speaker 3: we're going to reverse, and we reversed because the nursing
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  Speaker 3: Home Aloha had a constitutionally protected property interest in its
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  Speaker 3: reimbursement for the services it provided, It had due process rights,
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  Speaker 3: and therefore it had standing to challenge this. So no
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  Speaker 3: answer remanned to say.
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  Speaker 2: I don't enjoy that. You need to, but I'm glad
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  Speaker 2: to see they pushed back on it. Yeah, because they
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  Speaker 2: got an approval notice and they've been providing the services.
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  Speaker 3: And then you stopped, and then you know, and again
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  Speaker 3: you at least got to give this nursing home the right.
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  Speaker 3: So they did provide the service. They didn't kick you know,
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  Speaker 3: mom out, They kept course they could have for free. Yep,
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  Speaker 3: So I get it. I get it so early. What's
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  Speaker 3: the issue here. It's really all about medicaid eligibility and
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  Speaker 3: understanding how to do it in never applying on your own.
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  Speaker 3: How many times have we said that, Yeah, people say, oh,
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  Speaker 3: I can fill out the application. It's harder than.
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  Speaker 2: That because the house doesn't stop you from being eligible.
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  Speaker 2: You just have to handle it the right way.
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  Speaker 3: Correct. Correct, So let's go through an example here. So
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  Speaker 3: let's say you got this married couple. They have a house.
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  Speaker 3: Let's say they got five hundred thousand investments, two hundred
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  Speaker 3: and fifty in the bank, and two hundred and fifty
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  Speaker 3: in the IRIS. We got a million bucks and a
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  Speaker 3: million dollar home.
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  Speaker 2: Yep.
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  Speaker 3: First thing you need to deal with, right is the money.
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  Speaker 3: Because to become financially eligible, there's a community spousal resource allowance.
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  Speaker 3: So you reach into the million for the healthy spouse
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  Speaker 3: in this case, I think it was the husband. You
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  Speaker 3: pull out about one fifty seven and you give two
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  Speaker 3: thousand to two approximately two thousand to the six spouse,
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  Speaker 3: and there's your one, you know, fifty eight to fifty nine,
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  Speaker 3: leaving us with what So you take the IRA, the
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  Speaker 3: bank accounts, and the investment accounts minus the one P
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  Speaker 3: fifty nine leaves you about eight forty one of money.
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  Speaker 2: Yep.
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  Speaker 3: So we've got eight hundred and forty one thousand dollars,
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  Speaker 3: which is causing medicaid eligibility. I get it way over,
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  Speaker 3: way over. So now you would simply tell the nursing
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  Speaker 3: home or you tell your client a healthy spouse, we're
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  Speaker 3: going to buy two annuities, one for his IRA and
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  Speaker 3: one for the balance of the money that's not in
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  Speaker 3: the IRA two medicaid annuities probably five year payout. Convert
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  Speaker 3: them to an income stream and like magic, that's off
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  Speaker 3: the table and the healthy spouse is getting a stream
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  Speaker 3: of money.
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  Speaker 1: Good.
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  Speaker 3: I like it, But we're still denied because we have
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  Speaker 3: this million dollar home sitting in the revocable trust. You
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  Speaker 3: got to get it out of the revocable trust. Right.
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  Speaker 3: If it's in the revocable trust, it's deemed non countable.
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  Speaker 3: But if the healthy spouse is living there owns it,
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  Speaker 3: now it I'm sorry, it's deemed countable in the revocable trust.
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  Speaker 3: But if the healthy spouse is living there and owns it,
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  Speaker 3: then there's no value limitation. It's automatically non countable and
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  Speaker 3: non leanable.
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  Speaker 2: So even though it's in the revocable trust, is the
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  Speaker 2: spouses the healthy spouses. Social doesn't matter, doesn't it's the
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  Speaker 2: naming the owners owner.
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  Speaker 3: You're going to get screwed, and that's what happens. So
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  Speaker 3: I think the nursing home is partly right here, but
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  Speaker 3: they did make a mistake in approving it to begin with.
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  Speaker 5: Right.
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  Speaker 3: But but I mean I think the state's partly right yeah,
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  Speaker 3: but they did make a mistake to begin with when
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  Speaker 3: they when they applied. But this is why you hire people, right.
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  Speaker 3: So now once it comes out, it's fine. And again,
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  Speaker 3: if you're single, you can just check a box that
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  Speaker 3: I intend to return home and it'll be non count
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  Speaker 3: in case.
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  Speaker 2: That does it. They can't, but you could have all
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  Speaker 2: the best of intentions.
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  Speaker 1: Good.
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  Speaker 3: The real news here is, folks, an irrevocable not revocable
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  Speaker 3: trust should have been done from the beginning. At the
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  Speaker 3: end of five years, it would have been all protected
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  Speaker 3: and we wouldn't have been dealing with wondering whether we
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  Speaker 3: have to take it out of the trust or not
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  Speaker 3: take it out of the trust, or whether one spouse
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  Speaker 3: gets sick or the other spouse gets sick later. It
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  Speaker 3: would have just been protected. So, folks, plan very important,
• 10:01
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  Speaker 3: when you're doing your planning, get this guide. The top
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  Speaker 2: Thank you Todd, you've been listening to Todd Lutski, a
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  Speaker 2: partner with the law firm of Cushing and Dolan. I'm
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  Speaker 2: Susan Power as a financial advisor with the Armstrong Advisory Group.
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  Speaker 2: We've got much more to come when we return to
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  Speaker 2: Welcome back into the legally Change with Todd Lutsky. I'm
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  Speaker 2: Susan Powers of financial Advice with the Armstrong Advisory Group,
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  Speaker 2: What's going on in Montana? Did you say, uh, yes, yeah, Montana, Montana.
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  Speaker 3: We're heading over to Montana. It's this case I like
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  Speaker 3: to call undue influences always lurking, right, and so planning
• 14:23
  Speaker 3: obviously is very important. So this case seems starts off
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  Speaker 3: kind of normal. Like David, you know, he's the dad,
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  Speaker 3: and he did a will in August of two thousand
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  Speaker 3: in which he a will, by the way, not a trust,
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  Speaker 3: did just a will where he devised his his house
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  Speaker 3: to his only daughter, Wendy. In twenty seventeen, David's had
• 14:44
  Speaker 3: some health issues resulting in his you know, inability to
• 14:48
  Speaker 3: care for himself really independently. So interestingly enough, friends and
• 14:52
  Speaker 3: some family sort of assisted him for a while until
• 14:56
  Speaker 3: twenty twenty three when he killed himself and so yeah,
• 15:00
  Speaker 3: I know, well you just brought the party down, I know,
• 15:03
  Speaker 3: but well he died, okay, it just by suicide, so
• 15:07
  Speaker 3: we need to know that part. Wendy then began living
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  Speaker 3: in the house because that's the daughter, and she's believed
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  Speaker 3: that she was the owner, which made sense to me. However,
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  Speaker 3: David David's brother Philip comes lurking and he claims that
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  Speaker 3: David actually signed a deed in twenty eighteen conveying the
• 15:31
  Speaker 3: home to David upon date upon I'm conveying the hometown, Philip,
• 15:36
  Speaker 3: upon David's death. It's like a life estate deed, is
• 15:38
  Speaker 3: what I'm what.
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  Speaker 2: I'm thinking, she rather than his daughter.
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  Speaker 3: If there's a deed, there's a deed, right, So Philip
• 15:46
  Speaker 3: then issues and notice to Wendy to vacate. It's not
• 15:49
  Speaker 3: your house. Well, Wendy then files that quiet title action.
• 15:53
  Speaker 2: Quiet tight, Yeah, I even talked about that.
• 15:56
  Speaker 3: Yeah, we got to get good title. We got to
• 15:57
  Speaker 3: settle as to who the owner of this property really is.
• 16:00
  Speaker 3: That's really what that means. Well, Philip files a summary
• 16:04
  Speaker 3: judgment saying this is clear, there's no issue of material
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  Speaker 3: fact here, it's my house, and the trial court grants
• 16:10
  Speaker 3: the summary judgment motion for the brother. Well, Wendy, as
• 16:14
  Speaker 3: you might imagine, wasn't happy with that, so she appealed.
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  Speaker 3: Philip then shows the existence of the deed to him. Well,
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  Speaker 3: that's pretty clear. Wendy then says, well, there's evidence here
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  Speaker 3: showing of Dad's mental and physical illness. Remember he had
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  Speaker 3: illness at the time of the deed, and evidence showing
• 16:32
  Speaker 3: that David, and evidence further evidence showing that David, her father,
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  Speaker 3: intended to devise the home to her. Well, the Supreme
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  Speaker 3: Court reversed, stating that well, clearly, with all this evidence
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  Speaker 3: being prevented, there must be an issue, a genuine issue
• 16:48
  Speaker 3: of material fact here, So you need to go hear
• 16:51
  Speaker 3: the case.
• 16:53
  Speaker 2: You did it again, shows in one week. That is
• 16:57
  Speaker 2: unacceptable Lutsky.
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  Speaker 3: So but I'm glad they did because that's exactly what
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  Speaker 3: a summary judgment means. That there's no issue of material fact,
• 17:04
  Speaker 3: nothing to discuss. You win on the merits. Well, well,
• 17:07
  Speaker 3: after the presentation of this evidence, there certainly is some
• 17:11
  Speaker 3: concern about whether or not there's a material fact. So
• 17:14
  Speaker 3: the Supreme Court said, go to court and have a hearing,
• 17:19
  Speaker 3: which I like. But again, folks, I think this all
• 17:22
  Speaker 3: comes back to you know, in my head, if I'm
• 17:25
  Speaker 3: the father and I want to protect the house from
• 17:26
  Speaker 3: my daughter, I'm thinking an irrevocable trust might have been
• 17:28
  Speaker 3: the way to go, not a simple will, right, But folks,
• 17:31
  Speaker 3: it's all about doing your planning and figuring out what
• 17:34
  Speaker 3: trust is right for you. And that's why this guide
• 17:37
  Speaker 3: is the top seven estate planning trusts that I think
• 17:40
  Speaker 3: are used most frequently. Yes, from nominee realty trusts, which
• 17:44
  Speaker 3: are not really trusts. So you got to learn about
• 17:46
  Speaker 3: those irrevocable trusts, revocable trust and by the way, many
• 17:50
  Speaker 3: kinds of irrevocable trusts, a pool trust, special needs trusts,
• 17:55
  Speaker 3: but more importantly how they work your dos and don'ts
• 17:59
  Speaker 3: and the tax is that go along with him, the
• 18:01
  Speaker 3: tax benefits that go along with him. I say all
• 18:03
  Speaker 3: those things, but in reality, I just want you to
• 18:05
  Speaker 3: get started with your estate plan and help you pick
• 18:08
  Speaker 3: the right trust for you. Or if you've done your
• 18:10
  Speaker 3: planning and you want to revise it, this will help
• 18:13
  Speaker 3: you pick whatever the new trust might be for you.
• 18:17
  Speaker 3: So call and get it eight six six eight four
• 18:19
  Speaker 3: eight five six nine nine or Legal Exchange Show dot com.
• 18:24
  Speaker 3: Top seven estate Planning Trusts eight six six eight four
• 18:28
  Speaker 3: eight five six nine nine or Legal Exchange Show dot com.
• 18:34
  Speaker 3: So what do we learn from this, Well, let's go
• 18:37
  Speaker 3: through your uncle. Well, this is the undo. This is
• 18:39
  Speaker 3: the lurking, undoing lange. So I say, I say, okay,
• 18:44
  Speaker 3: what is undue influence? Undue influences. Phillip in this case
• 18:49
  Speaker 3: likely took David the brother to the attorney, probably picked
• 18:54
  Speaker 3: out the attorney to use, and was probably present during
• 18:59
  Speaker 3: the transaction. And at the end of the transaction Philip
• 19:04
  Speaker 3: had way more than he had before the transaction was done.
• 19:08
  Speaker 3: By the way, that is the definition of undue influence. Yeah,
• 19:14
  Speaker 3: I mean, that is classic definition of undue influence. And
• 19:17
  Speaker 3: I feel like that's probably what happened.
• 19:20
  Speaker 2: Here and meanwhile, the dart is taking care of him.
• 19:23
  Speaker 2: Probably not cool, Uncle Phil.
• 19:26
  Speaker 3: Yeah, that's exactly right. Well, interesting that they didn't make
• 19:30
  Speaker 3: that argument. They talked more here about lack of capacity.
• 19:35
  Speaker 3: Remember that's what they brought up, because it did say
• 19:38
  Speaker 3: that in twenty seventeen, David did have some health issues
• 19:42
  Speaker 3: resulting in his inability to care for himself independently. I
• 19:45
  Speaker 3: don't know if that which may not be cognitive exactly
• 19:49
  Speaker 3: Susan exactly so, But I'm not really sure where they
• 19:52
  Speaker 3: went with that. But they were more about lack of capacity,
• 19:55
  Speaker 3: which is you need to produce in this case, to
• 19:58
  Speaker 3: get lack of capacity, you need to produce health records
• 20:02
  Speaker 3: showing what this person's level of cognitive capacity is to
• 20:08
  Speaker 3: prove that it didn't exist when the document was signed. Now, note,
• 20:14
  Speaker 3: here's why I'm not excited that they went down this road.
• 20:18
  Speaker 3: And by the way, maybe they won't remember this is
• 20:20
  Speaker 3: going to be remanded. When they remand it, maybe they'll
• 20:23
  Speaker 3: really focus on both of these arguments, not just the
• 20:27
  Speaker 3: lack of capacity, which I think they need to do.
• 20:30
  Speaker 3: And here's why, because I look at this and I say, well,
• 20:33
  Speaker 3: he signed that deed in twenty eighteen. Well, he only
• 20:38
  Speaker 3: began having health issues in twenty seventeen. It could have
• 20:42
  Speaker 3: been let's say it was dementia. It might have been
• 20:45
  Speaker 3: early dementia. He might have absolutely still had testamentary capacity
• 20:52
  Speaker 3: at that time, and so the deed could have been
• 20:55
  Speaker 3: valid under the capacity argument.
• 20:59
  Speaker 1: Right.
• 21:00
  Speaker 3: So, well, I think you will need to bring up
• 21:03
  Speaker 3: the capacity argument in the litigation that's going to follow here.
• 21:09
  Speaker 3: I think you can't ignore undue influence, which seems to
• 21:13
  Speaker 3: be the the you know, running right in the square
• 21:16
  Speaker 3: in the face of undue influence. I think that's your
• 21:19
  Speaker 3: stronger argument here. Anyways, the bigger issue is how do
• 21:25
  Speaker 3: we just not be in this situation? Ever? Well, why
• 21:29
  Speaker 3: wouldn't we have just set up an irrevocable trust. David,
• 21:31
  Speaker 3: you said you wanted this house to go to your daughter.
• 21:34
  Speaker 3: Maybe you want to protect it for your daughter. Why
• 21:36
  Speaker 3: not set up an irrevocable trust right from the get go.
• 21:39
  Speaker 3: Put the house in that way. You know it's going
• 21:42
  Speaker 3: to be protected from the nursing home in case he
• 21:44
  Speaker 3: gets sick, which, by the way, he did. Maybe it
• 21:48
  Speaker 3: didn't result in a nursing home, but he did, right
• 21:51
  Speaker 3: get sick, and so you know this would have actually
• 21:55
  Speaker 3: eliminated that whole concern probate nursing home. And I know
• 22:00
  Speaker 3: now it's protected from my daughter and number one.
• 22:03
  Speaker 2: And if when he was doing that, Todd, if he
• 22:05
  Speaker 2: had any concerns about a brother lurking, or even about
• 22:11
  Speaker 2: his daughter, he could have had an impartial third party
• 22:14
  Speaker 2: be the trustee right to protect.
• 22:17
  Speaker 3: In this case, let's say he had no trouble with
• 22:19
  Speaker 3: his daughter. So what will you do is Secondly, the
• 22:21
  Speaker 3: trustee on this irrevocable trust could have been the daughter.
• 22:25
  Speaker 3: And if it was the daughter as trustee, therefore, in
• 22:28
  Speaker 3: order to get the house out of the trust, the
• 22:32
  Speaker 3: trustee daughter would have had to sign the deed to
• 22:37
  Speaker 3: get it out. And then it can only come out
• 22:39
  Speaker 3: to certain people listed in the document.
• 22:42
  Speaker 2: And it's not going to be Uncle Phil and it's.
• 22:44
  Speaker 3: Not going to be Uncle Bill. So this would have
• 22:48
  Speaker 3: absolutely not only protected it from probate in the nursing home,
• 22:52
  Speaker 3: I really think, and not in all cases, but in
• 22:55
  Speaker 3: this case, I think it would have really protected it
• 22:57
  Speaker 3: from ever being unduly influenced to take make it to
• 23:01
  Speaker 3: uncle Bill.
• 23:01
  Speaker 2: It's about the family for you, in your family.
• 23:04
  Speaker 3: So you know, I think you really have that kind
• 23:06
  Speaker 3: of a check in balance when you do this. Now,
• 23:09
  Speaker 3: you know, even in this case, if the donor's daughter,
• 23:13
  Speaker 3: I'm sorry, if the power of the power to remove
• 23:15
  Speaker 3: and replace the trustee was in there, even then the
• 23:19
  Speaker 3: daughter would be removed and say hey, what's going on.
• 23:21
  Speaker 3: It would be a notice. It would be a wake
• 23:23
  Speaker 3: up call. Folks, planning is better. Learn what type of
• 23:27
  Speaker 3: trust is right for you to stay out of these situations.
• 23:30
  Speaker 3: Eight six six, eight four eight five six nine nine
• 23:34
  Speaker 3: or Legal Exchange show dot com.
• 23:36
  Speaker 2: You've been listening to Todd Lutsky, a partner with a
• 23:38
  Speaker 2: law firm of Cushing and Dolan. I'm Susan Powers, a
• 23:42
  Speaker 2: financial advisor with the Armstrong Advisory Group, and Todd will
• 23:45
  Speaker 2: be answering your listener questions next when we return to
• 23:49
  Speaker 2: the Legal Exchange with Todd Lutsky.
• 23:52
  Speaker 1: A trust isn't just a document. It's a powerful tool
• 23:55
  Speaker 1: that can help protect your assets from the nursing home
• 23:57
  Speaker 1: and even reduce or eliminate a state taxes. Cushing and
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  Speaker 1: Learning the differences now can help you make smarter decisions
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  Speaker 1: for your future and your loved ones. Trusts are a
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  Speaker 1: sixty six eight four eight five six ninety nine to
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  Speaker 6: When it comes to legacy planning, having a will is important,
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  Speaker 6: but it may not be enough. A will only covers
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  Speaker 6: probate assets, and the probate process can be slow, public,
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  Speaker 1: The proceeding was paid for by Armstrong Advisory Group, a
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• 27:17
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  Speaker 1: advisory services. You're listening to the Legal Exchange and it's
• 27:26
  Speaker 1: time for Ask Todd, the segment where Todd will answer
• 27:29
  Speaker 1: your questions about anything and everything that's included in the
• 27:32
  Speaker 1: estate planning process. Once again, here's Todd Lutsky and Susan Powers.
• 27:39
  Speaker 2: Welcome back Todd. A few questions from listeners for you.
• 27:42
  Speaker 2: First question comes from Bonnie in Grafton, mass And Bonnie writes,
• 27:46
  Speaker 2: I am married, but my name is not on the
• 27:49
  Speaker 2: deed to the house. Only my husband's name is. Does
• 27:52
  Speaker 2: my name need to be on the deed to avoid
• 27:54
  Speaker 2: probate if my husband passes away. We've been married for
• 27:58
  Speaker 2: over twenty years, but he does have chill from a
• 28:00
  Speaker 2: prior marriage. So what happens if the husband dies and
• 28:05
  Speaker 2: she's not on that d Yeah.
• 28:08
  Speaker 3: So I love when people come in all the time
• 28:10
  Speaker 3: and they say, let's not even use a husband wife situation.
• 28:13
  Speaker 3: They go, well, you know, I got this house that
• 28:16
  Speaker 3: I that I you know, I sort of it's my
• 28:18
  Speaker 3: son's house, but but you know I bought it and
• 28:21
  Speaker 3: but it's my son's go. But but whose name's on it?
• 28:25
  Speaker 1: Right?
• 28:25
  Speaker 3: My name? Well it's not your sons, then right doesn't
• 28:27
  Speaker 3: have right, you know, it's it's not your saying, but
• 28:30
  Speaker 3: we have this agreement. But agreements for real estate don't
• 28:33
  Speaker 3: matter because of something called the Statute of Frauds. Anything
• 28:36
  Speaker 3: that deals with real estate must be in writing if
• 28:39
  Speaker 3: you want it enforced. You can't say I orally said
• 28:42
  Speaker 3: this is going to happen or that's going to happen.
• 28:44
  Speaker 3: Does not work violate something called the Statute of Frauds.
• 28:48
  Speaker 3: So so you got to remember these little side deals
• 28:51
  Speaker 3: that everybody has in their head really doesn't matter. Okay,
• 28:56
  Speaker 3: when you die, it only matters as to how it's owned.
• 29:00
  Speaker 3: So in this case, how is it owned? Seems like
• 29:03
  Speaker 3: it's owned in husband's name only. And by the way,
• 29:06
  Speaker 3: it's not uncommon that, you know, especially in the older days,
• 29:10
  Speaker 3: you know one person's name is on the property.
• 29:14
  Speaker 2: And in this case it was a second mag they've
• 29:16
  Speaker 2: been together for a long time, but he does have
• 29:18
  Speaker 2: kids from a primary So.
• 29:20
  Speaker 3: Now what it doesn't say in here is anything about
• 29:23
  Speaker 3: a will or an estate plan for them.
• 29:27
  Speaker 2: Doesn't sound like they've done anything. If the house is
• 29:29
  Speaker 2: still in his name.
• 29:30
  Speaker 3: Yeah, so let's assume nothing was done, not even a will. Right, Well,
• 29:36
  Speaker 3: when he dies, it is absolutely going to go to probate.
• 29:40
  Speaker 3: So the first question is does it avoid probate? No,
• 29:42
  Speaker 3: it does not. It's going to go to probate. And
• 29:46
  Speaker 3: now where is it going to go? Well, if it's
• 29:49
  Speaker 3: in his name alone, it's not automatically going to go
• 29:52
  Speaker 3: to the spouse like it would if it was joint right,
• 29:55
  Speaker 3: what I think she's asking about here, If you put
• 29:58
  Speaker 3: a joint name on it, you would get the avoidance
• 30:01
  Speaker 3: of probate and the operation of law. It would move
• 30:04
  Speaker 3: to the to the surviving joint owner. The problem you
• 30:10
  Speaker 3: have here is with no will in a second marriage.
• 30:12
  Speaker 3: You have to look at the statute. Because every statute
• 30:15
  Speaker 3: every state is different. So when you have second marriages,
• 30:20
  Speaker 3: I believe half goes to the kids of the prior
• 30:25
  Speaker 3: marriage and then something goes to the spouse. I don't
• 30:29
  Speaker 3: know how they divide it. I don't know if you
• 30:31
  Speaker 3: get like a life estate for the wife or ematic.
• 30:34
  Speaker 3: It's definitely going to be a problem. Now, if it's
• 30:37
  Speaker 3: first marriage, it's not so bad. But if it's second marriage,
• 30:41
  Speaker 3: then you have to consider the kids from the second
• 30:45
  Speaker 3: marriage right away. So, yeah, this is a problem.
• 30:50
  Speaker 2: So what should they do?
• 30:52
  Speaker 3: So I think they should do sit down with a
• 30:53
  Speaker 3: lawyer and doing a state plan. I mean, there's a
• 30:55
  Speaker 3: whole state plan.
• 30:56
  Speaker 1: You.
• 30:56
  Speaker 3: You have more than probate and tax reasons to plan here.
• 31:01
  Speaker 3: You've got two families that need to be taken care
• 31:04
  Speaker 3: of and make sure that we not only provide for
• 31:07
  Speaker 3: each other, but we provide for both sides of the
• 31:09
  Speaker 3: family without one sort of screwing the other one if
• 31:13
  Speaker 3: one dies. Okay, So lots to do here from a
• 31:17
  Speaker 3: planning perspective. But again, the type of trust and the
• 31:19
  Speaker 3: type of plan they put together, the type of trust
• 31:22
  Speaker 3: they need is really going to be driven by their
• 31:24
  Speaker 3: family dynamics and their wishes. How will they know? They
• 31:27
  Speaker 3: need to get this guy the top seven estate planning
• 31:30
  Speaker 3: trusts so that they can pick which kind of trust
• 31:34
  Speaker 3: is right for them. But I say that for them,
• 31:37
  Speaker 3: for you, for everybody listening. If you've not done your planning,
• 31:40
  Speaker 3: this guide is going to help you figure out which
• 31:43
  Speaker 3: kind of trust works for you, how they work, the taxes,
• 31:47
  Speaker 3: the dos and don't swell you're living and when you
• 31:50
  Speaker 3: pass call and get It eight six six eight four
• 31:54
  Speaker 3: eight five six nine nine or Legal exchange show dot com.
• 31:58
  Speaker 3: The top seven estate planning trusts eight six six eight
• 32:02
  Speaker 3: four eight five six nine nine or Legal exchange Show
• 32:07
  Speaker 3: dot com.
• 32:08
  Speaker 2: Our last question comes from William in Middletown, Connecticut, and
• 32:11
  Speaker 2: William writes, my mother and stepdad have a revocable trust
• 32:15
  Speaker 2: written thirty plus years ago in Connecticut, and then they
• 32:18
  Speaker 2: relocated to Florida. Their house in Florida is not in
• 32:22
  Speaker 2: their trust. My stepdad passed away three years ago. Would
• 32:27
  Speaker 2: my mother now be able to create a new trust
• 32:30
  Speaker 2: in Florida. Well, I think there's a lot more going
• 32:34
  Speaker 2: on here than that question.
• 32:36
  Speaker 3: That's the easy question.
• 32:38
  Speaker 2: So will it avoid probate?
• 32:40
  Speaker 3: So so, I think the first problem we have is
• 32:43
  Speaker 3: I wonder how that Florida trust Florida property was owned.
• 32:46
  Speaker 3: Oh did that happen?
• 32:47
  Speaker 2: Maybe they moved after so maybe they bought it together and.
• 32:51
  Speaker 3: Then and so he died in that they already owned that.
• 32:54
  Speaker 2: House, yes, correct, but not in the trust.
• 32:57
  Speaker 3: If that house was owned jointly. We just talked about
• 32:59
  Speaker 3: that and it would have just went to the wife
• 33:02
  Speaker 3: who's still living, and the wife can do what she
• 33:05
  Speaker 3: wants with it, she can create her own trust and
• 33:09
  Speaker 3: put that property into it because it's hers. If it
• 33:12
  Speaker 3: was jointly owned, it's hers, and again it would have
• 33:15
  Speaker 3: avoided probate. And now it's time for her to plan
• 33:18
  Speaker 3: and protect it.
• 33:19
  Speaker 2: Is there a reason why she couldn't put it into
• 33:21
  Speaker 2: the revocable trust that they did together thirty plus years ago.
• 33:25
  Speaker 3: Yeah, yeah, there is because at the time when someone dies,
• 33:28
  Speaker 3: that trust becomes irrevocable, right, and so that's when you
• 33:32
  Speaker 3: create the marital share and the remainder share, and you
• 33:36
  Speaker 3: can't really just fund it. Well, I guess if there's
• 33:40
  Speaker 3: a marital bucket, she could perhaps put it into the
• 33:44
  Speaker 3: marital bucket, as long as the marital bucket is going
• 33:47
  Speaker 3: to be included in her estate when she dies. It'll
• 33:50
  Speaker 3: depend on what elections were made at the date of
• 33:53
  Speaker 3: death in terms of q TIP elections for tax purposes.
• 33:57
  Speaker 3: But again by the same token, I would say, even
• 34:00
  Speaker 3: if you could do that, I might say, well, you
• 34:03
  Speaker 3: did a revocable trust way back thirty years.
• 34:05
  Speaker 2: Thirty plus years ago. They're older now for sure.
• 34:08
  Speaker 3: You're much older exactly, Susan. I would be like, maybe
• 34:11
  Speaker 3: you should take that Florida property stick it in an
• 34:15
  Speaker 3: irrevocable trust since you already own it, get it protected
• 34:18
  Speaker 3: from the nursing home if that's now on your LISTEP
• 34:22
  Speaker 3: and then go back and revisit the joint revocable trust
• 34:29
  Speaker 3: that you had that's now irrevocable, and see if you
• 34:32
  Speaker 3: can do a disclaimer of principle in those trusts so
• 34:38
  Speaker 3: that those assets are still sheltered from estate taxes when
• 34:42
  Speaker 3: the survivor dies. But by turning off the right to
• 34:47
  Speaker 3: principle in that trust, which is the disclaimer, it starts
• 34:52
  Speaker 3: a five year waiting period for medicaid on those assets.
• 34:56
  Speaker 2: So she wouldn't have to empty out those trusts.
• 34:59
  Speaker 3: Correct, right, because if she did, then it's just subjecting
• 35:03
  Speaker 3: it to a state taxes when the survivor dies. Again,
• 35:06
  Speaker 3: so very important in a situation like this, And this
• 35:09
  Speaker 3: is another reason why when one spouse dies, you need
• 35:13
  Speaker 3: to call your lawyer. You need to say what do
• 35:17
  Speaker 3: I do now? Remember you set this up because you
• 35:21
  Speaker 3: wanted to take advantage of tax savings, probate savings, bloodline planning.
• 35:28
  Speaker 3: In order for that to happen when one dies, you
• 35:31
  Speaker 3: need to call up to effectuate that, to take the
• 35:36
  Speaker 3: documents that you paid for and make the plan happen.
• 35:41
  Speaker 3: So in this case more is going on than just that.
• 35:46
  Speaker 3: So here not only do I want to figure out
• 35:50
  Speaker 3: what to do with assets that mom has in her
• 35:52
  Speaker 3: own right, but what do I do with the old trust?
• 35:57
  Speaker 3: So where that's where this disclaimer comes in.
• 36:00
  Speaker 2: So now Todd, we're just thinking, I know they're in Florida,
• 36:03
  Speaker 2: but in Massachusetts, where you have a two million dollar
• 36:07
  Speaker 2: per person exemption, do you find that you're doing more
• 36:10
  Speaker 2: joint irrevocable trusts at this point? So there's stuff that
• 36:14
  Speaker 2: has to be done when someone dies, right, absolutely, yeah, So.
• 36:18
  Speaker 3: Do I do more joint trust? I do more joint
• 36:21
  Speaker 3: revocable trusts mainly because the federal exemption is so high. Right,
• 36:28
  Speaker 3: that's the sort of driving factor in when I do
• 36:33
  Speaker 3: one revocable trust versus versus two got to go trust.
• 36:38
  Speaker 3: So in the good news now is with the exemption
• 36:41
  Speaker 3: approaching fifteen million come twenty twenty six, more and more
• 36:45
  Speaker 3: people can do one joint trust and they are really
• 36:49
  Speaker 3: a great way to go folks. That's in the guide.
• 36:52
  Speaker 3: That's one of the revocable trusts in the guide. So
• 36:56
  Speaker 3: learn about revocable irrevocable get the trust to see what
• 37:00
  Speaker 3: trust is right for you eight six six eight four
• 37:03
  Speaker 3: eight five six nine nine or Legal Exchange Show dot com.
• 37:08
  Speaker 2: If you have a question you'd like to ask Todd,
• 37:10
  Speaker 2: visit his website Legal Exchange Show dot com and click
• 37:14
  Speaker 2: on the ask Tod tap. Maybe I'll be able to
• 37:16
  Speaker 2: read your question on the air, and hopefully his answer
• 37:19
  Speaker 2: will stop you from becoming one of his next real
• 37:21
  Speaker 2: life stories. You've been listening to Todd Lutsky, a partner
• 37:25
  Speaker 2: with the law firm of Cushing in Dolan. I'm Susan Powers,
• 37:29
  Speaker 2: a financial advisor with the Armstrong Advisory Group. We'll be
• 37:32
  Speaker 2: back with more after this quick break on the Legal
• 37:35
  Speaker 2: Exchange with Todd Lutsky.
• 37:38
  Speaker 1: A trust isn't just a document. It's a powerful tool
• 37:41
  Speaker 1: that can help protect your assets from the nursing home
• 37:43
  Speaker 1: and even reduce or eliminate a state taxes. Cushing and
• 37:46
  Speaker 1: Dolan are leaders in elder law, estate planning, and asset protection.
• 37:50
  Speaker 1: This month, they're offering a free guide called Demistifying the
• 37:53
  Speaker 1: Top seven estate Planning Trusts. This guy breaks down the
• 37:56
  Speaker 1: most common types of trusts, explains the pros and cons
• 37:59
  Speaker 1: of each hand helps you understand which might be right
• 38:01
  Speaker 1: for you and your family. Trust come with different rules, benefits,
• 38:05
  Speaker 1: and tax treatment, and choosing the wrong one could cost you.
• 38:08
  Speaker 1: Learning the differences now can help you make smarter decisions
• 38:11
  Speaker 1: for your future and your loved ones. Trusts are a
• 38:13
  Speaker 1: critical part of any well designed estate plan, but they
• 38:16
  Speaker 1: can be complex. Don't guess your way through it. Get
• 38:19
  Speaker 1: the facts first. Call Cushing and Dolan now at eight
• 38:22
  Speaker 1: six six eight four eight five six nine nine to
• 38:25
  Speaker 1: request your free copy, or visit legal exchange show dot com.
• 38:28
  Speaker 1: The proceeding was paid for in the views exprest Or Sole,
• 38:30
  Speaker 1: leaders of Cushing and Dolan. Cushing and Dolan, d or
• 38:32
  Speaker 1: Armstrong Advisory may contact you offering legal or investment services.
• 38:35
  Speaker 1: Cushing and Dolan and I'mstrong Advisory do not endorse each other,
• 38:37
  Speaker 1: in or not affiliated. The holidays are just around the corner,
• 38:41
  Speaker 1: so now is the time to plan your winter escape.
• 38:44
  Speaker 1: Trade in the cold for sunshine, sea breezes and island
• 38:48
  Speaker 1: vibes in the US Virgin Islands, America's Caribbean paradise, whether
• 38:53
  Speaker 1: it's a romantic retreat, a family celebration, or a solo
• 38:56
  Speaker 1: recharge before the new year. Saint Croix, Saint Thoma and
• 39:00
  Speaker 1: Saint John offer the ultimate warm weather getaway. Lounge on
• 39:04
  Speaker 1: sun drenched beaches, explore vibrant culture, and celebrate the holiday's
• 39:09
  Speaker 1: island style. No passport, no hassle, just warm weather, clear
• 39:14
  Speaker 1: blue water and unforgettable memories. This is where the stress
• 39:18
  Speaker 1: melts away and you find yourself naturally in rhythm with
• 39:21
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• 39:24
  Speaker 1: com and book your trip today. That's visit USVII dot
• 39:28
  Speaker 1: com the US Virgin Islands, America's Caribbean paradise. Your holiday
• 39:34
  Speaker 1: escape starts here at visit USVII dot com.
• 39:38
  Speaker 4: Hi, this is Chuck Zada from the Armstrong Advisory Group.
• 39:41
  Speaker 4: If you have an IRA, it's critical to understand the
• 39:44
  Speaker 4: tax rules that may affect your family as you plan
• 39:46
  Speaker 4: for retirement. Current law requires most non spouse beneficiaries to
• 39:50
  Speaker 4: withdraw the full balance of an inherited I ray within
• 39:52
  Speaker 4: ten years, which may lead to higher taxes and reduced
• 39:55
  Speaker 4: value over time. If beneficiary designations are outdated are incorrect,
• 39:59
  Speaker 4: they could possibly override your will and change how your
• 40:01
  Speaker 4: assets are distributed. That's why we're offering a new guide
• 40:04
  Speaker 4: called Leaving a Lasting Legacy, a resource to help you
• 40:07
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• 40:11
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• 40:14
  Speaker 4: control of your plan. Call eight hundred thirty nine three
• 40:17
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• 40:19
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• 40:22
  Speaker 4: A request your copy online at Armstrong Advisory dot com.
• 40:26
  Speaker 1: The proceeding was paid for by Armstrong Advisory Group, a
• 40:28
  Speaker 1: registered investment advisor. Nothing in the ad or in any
• 40:30
  Speaker 1: Armstrong Guide a specific financial, legal or tax advice. Consult
• 40:33
  Speaker 1: your own financial tax into state planning advisors before making
• 40:35
  Speaker 1: any investment decisions. Armstrong may contact you to offer investment
• 40:38
  Speaker 1: advisory services. Your tune to the Legal Exchange with Todd Lutsky.
• 40:42
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• 40:44
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• 40:47
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• 40:49
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• 40:52
  Speaker 1: eight five six nine nine, or visit him online at
• 40:55
  Speaker 1: Legal Exchange Show dot com.
• 40:59
  Speaker 2: Welcome back in the Legal Exchange with Todd Lutsky. I'm
• 41:02
  Speaker 2: Susan Powers, a financial advisor with the Armstrong advisory group,
• 41:05
  Speaker 2: and I'm joined, of course by Todd Lutsky, a partner
• 41:08
  Speaker 2: with the law firm of Cushing and Dolan with a
• 41:10
  Speaker 2: masters in taxation. So, Todd, you've got seven trusts in
• 41:15
  Speaker 2: this guide. Two of them I want to focus on
• 41:18
  Speaker 2: today are in the special needs world, so special needs
• 41:21
  Speaker 2: trust and sole benefit types of trust. So I know
• 41:25
  Speaker 2: that there are different types of special needs trust what
• 41:28
  Speaker 2: are the most common ones?
• 41:31
  Speaker 3: So I guess that the two special needs trusts that
• 41:35
  Speaker 3: you would have would be I'm trying to think like
• 41:39
  Speaker 3: a self settled special needs trust.
• 41:42
  Speaker 1: Right.
• 41:42
  Speaker 3: That would be one likely where your child perhaps or
• 41:46
  Speaker 3: the individual was not disabled at birth.
• 41:49
  Speaker 2: Yep, but had an accident, maybe got injured.
• 41:52
  Speaker 3: Yeah, some kind of an accident occurred, and this child
• 41:56
  Speaker 3: now is disabled, this person is disabled, and they get
• 41:59
  Speaker 3: like a settlement, you know, and so here comes a
• 42:02
  Speaker 3: chunk of money. Well, this person either the court establishes
• 42:06
  Speaker 3: the special needs trust, the person, the injured party, disabled
• 42:10
  Speaker 3: party as long as they're competent and can do it,
• 42:13
  Speaker 3: establish it, or the parent or guardian establish the self
• 42:17
  Speaker 3: settled one self settled because it's the disabled person's money yep,
• 42:22
  Speaker 3: that's being used to fund it.
• 42:24
  Speaker 2: Got it.
• 42:26
  Speaker 3: A third party special needs trust is the parents doing
• 42:33
  Speaker 3: their own estate plan, and usually inside their revocable or
• 42:40
  Speaker 3: irrevocable trust, depending on what kind of planning they're doing,
• 42:44
  Speaker 3: says what happens when they both die, and when they
• 42:47
  Speaker 3: both die, there's usually buckets created for children. One of
• 42:51
  Speaker 3: the children's buckets would be this special needs trust bucket, right,
• 42:57
  Speaker 3: And that's a third party trust, okay, because it's funded
• 43:02
  Speaker 3: by them.
• 43:03
  Speaker 2: Okay. So I know I have run into folks through
• 43:07
  Speaker 2: the course of working that have created a special standalone
• 43:12
  Speaker 2: special needs trust for their child where they haven't received
• 43:17
  Speaker 2: a settlement, but the parents created it and they may
• 43:20
  Speaker 2: have put money into it themselves, but that's done during
• 43:24
  Speaker 2: their life. It sounds like the language in the trust
• 43:27
  Speaker 2: that you're mentioning would be funded at death versus them
• 43:32
  Speaker 2: funding it during their lifetime.
• 43:34
  Speaker 3: Correct, So while third party trust on both cases.
• 43:38
  Speaker 2: But okay, correct, So why would you do one way
• 43:41
  Speaker 2: versus the other?
• 43:42
  Speaker 3: So I don't see what you just said. That often
• 43:46
  Speaker 3: I don't see parents coming in to do an estate
• 43:50
  Speaker 3: plan and saying I do see it. It's just not
• 43:53
  Speaker 3: as often where they say we've already established, you know,
• 43:58
  Speaker 3: a special needs trust for our child, and we got
• 44:03
  Speaker 3: an ID number, and we got bank accounts and there's
• 44:07
  Speaker 3: money in it. Can you do that? Yes, that's what
• 44:10
  Speaker 3: you just described. Yes, I just the only reason I
• 44:15
  Speaker 3: can see to do that would be if you also
• 44:20
  Speaker 3: have aunts and uncles and grandparents and other people who
• 44:24
  Speaker 3: want to take care of this special needs person and
• 44:29
  Speaker 3: they want to contribute, so they can contribute now through
• 44:34
  Speaker 3: the years to this standalone trust. If you don't really
• 44:40
  Speaker 3: have people waiting in line to do that, I don't
• 44:45
  Speaker 3: need it if I'm the parent. Because I'm the parent,
• 44:47
  Speaker 3: I can just provide directly while I'm alive for my
• 44:52
  Speaker 3: special needs child. I don't need to put it in
• 44:54
  Speaker 3: a separate bucket to have the trust bucket provide for them.
• 44:57
  Speaker 3: I just do it myself.
• 44:58
  Speaker 2: Because I know there are lots of grandparents out there
• 45:01
  Speaker 2: that have put language into their own trust documents that
• 45:05
  Speaker 2: special needs language for a grandchild, right, they can do
• 45:08
  Speaker 2: that as well.
• 45:09
  Speaker 3: I'm different sort of, and that's sort of the idea
• 45:11
  Speaker 3: of Now grandparents are saying, I need to take care
• 45:14
  Speaker 3: of my kids and my grandkids, so I have it
• 45:18
  Speaker 3: set up. We're inside their trust, which is that third
• 45:21
  Speaker 3: party trust they create a special needs share for that
• 45:25
  Speaker 3: particular child or grandchild. Yeap, oh, absolutely right. So folks,
• 45:30
  Speaker 3: that's just one of the seven kinds of trusts that
• 45:34
  Speaker 3: are in this guide, and they explain from revocable to
• 45:38
  Speaker 3: irrevocable to pool trusts. More importantly, no many realty trusts.
• 45:43
  Speaker 3: Oh my gosh, those are a disaster. But got to
• 45:46
  Speaker 3: read them because a lot of people have them. This
• 45:49
  Speaker 3: guide is great for you to get started to pick
• 45:52
  Speaker 3: the right trust for your situation. And if you've already planned,
• 45:57
  Speaker 3: to review your plan and see if a different kind
• 46:01
  Speaker 3: of planning strategy maybe you've gotten older and you want
• 46:04
  Speaker 3: to switch, is right for you. So call and get
• 46:07
  Speaker 3: a top seven estate planning trusts eight six six eight
• 46:11
  Speaker 3: four eight five six nine nine or Legal Exchange Show
• 46:16
  Speaker 3: dot com again eight six six eight four eight five
• 46:20
  Speaker 3: six nine nine or Legal Exchange Show dot Com.
• 46:24
  Speaker 2: Okay, so let's just compare the self settled in the
• 46:28
  Speaker 2: third party because those are probably the most common types
• 46:31
  Speaker 2: that yes, we see and you see throughout the course
• 46:33
  Speaker 2: of your business. So if you have a self settled trust,
• 46:37
  Speaker 2: that means there's money already in it. And let's say
• 46:40
  Speaker 2: mom or dad or both of them have passed away.
• 46:42
  Speaker 2: So now there's money in this third party trust that
• 46:45
  Speaker 2: share for that special needs child. What's the difference between
• 46:50
  Speaker 2: the two in terms of what the funds can be
• 46:53
  Speaker 2: used for, like they would if they're living like already
• 46:56
  Speaker 2: in like a group home or something like that. What
• 46:58
  Speaker 2: happens to benefits things like that, Like operationally, how does
• 47:01
  Speaker 2: that function?
• 47:02
  Speaker 3: The good news is, operationally there's no difference. But payback
• 47:07
  Speaker 3: there's a difference. So let me explain.
• 47:09
  Speaker 2: You don't like payback.
• 47:10
  Speaker 3: I know you don't like that sound of that.
• 47:12
  Speaker 2: I don't like that word.
• 47:13
  Speaker 3: So two things. The two trusts generally are going to
• 47:17
  Speaker 3: have the same language and saying things like the trustee
• 47:22
  Speaker 3: of the trust, either one self settled or or third party.
• 47:30
  Speaker 3: The trustee holds the assets in trust for the benefit
• 47:33
  Speaker 3: of the disabled individual. The trustee and its sole discretion,
• 47:39
  Speaker 3: can make distributions to this child for any reason or
• 47:45
  Speaker 3: no reason or not at all. That way, you don't
• 47:48
  Speaker 3: have to guess why they need it or how much
• 47:51
  Speaker 3: they need it covers everything. The key is that the
• 47:56
  Speaker 3: child doesn't own it, and therefore the child benefits are
• 48:01
  Speaker 3: not disrupted during life. Right, Yeah, So if they owned
• 48:06
  Speaker 3: it and they were an asset based benefit, they would
• 48:09
  Speaker 3: go over over assets.
• 48:11
  Speaker 2: Right if they're getting those benefits.
• 48:12
  Speaker 3: So in this case, it protects it keeps them on
• 48:15
  Speaker 3: governmental benefits, but enhances their life through these discretionary distributions.
• 48:20
  Speaker 3: Got it.
• 48:21
  Speaker 2: So do you need to have a special type of trustee,
• 48:24
  Speaker 2: Like do you need like a professional trust corporation kind
• 48:27
  Speaker 2: of thing, or you.
• 48:27
  Speaker 3: Could put a child on that, maybe a sibling who
• 48:29
  Speaker 3: knows that person's needs and things like that. Yeah, I'm
• 48:32
  Speaker 3: not really worried about like divorce proofing it here, right,
• 48:35
  Speaker 3: So so no, you probably wouldn't have to go the
• 48:38
  Speaker 3: independent route.
• 48:39
  Speaker 2: Yep.
• 48:41
  Speaker 3: However, the difference between the two self settled versus third party. Remember,
• 48:47
  Speaker 3: the child is receiving these benefits during life. In a
• 48:51
  Speaker 3: self settled trust. If the child has received thousands and
• 48:55
  Speaker 3: thousands of dollars of benefits from the state, when they die,
• 49:00
  Speaker 3: whatever is left in the trust that they have not used,
• 49:05
  Speaker 3: there's a payback provision to the state. How much is
• 49:09
  Speaker 3: left in the trust? How much do I owe the state?
• 49:12
  Speaker 6: Right?
• 49:12
  Speaker 3: You gotta give it to him?
• 49:13
  Speaker 2: And how about the third party that's funded by a
• 49:16
  Speaker 2: mom and dad's death? Are grand?
• 49:18
  Speaker 3: Third party trusts have no payback provision. So in this case,
• 49:24
  Speaker 3: whatever is left after the child passes is generally directed
• 49:29
  Speaker 3: either to that child's children, the grandchildren if any, or
• 49:34
  Speaker 3: to the sibling, the other children, the other donors children.
• 49:38
  Speaker 2: And you can decide where those funds go when that
• 49:40
  Speaker 2: special needs child passes away.
• 49:42
  Speaker 3: It's listed right awayhen you got created. Yeah, when you
• 49:45
  Speaker 3: create the document, you put that language in there.
• 49:48
  Speaker 2: So big difference for those folks out there that didn't
• 49:52
  Speaker 2: think that they could. Like let's say they have two
• 49:54
  Speaker 2: kids and they thought, I'm just going to leave everything
• 49:56
  Speaker 2: to my daughter because my son is special needs, She'll
• 50:00
  Speaker 2: take care of them. That's not what you'd recommend.
• 50:02
  Speaker 3: I don't. I don't recommend that at all, mainly because
• 50:05
  Speaker 3: there's tax issues that every time you make it it's
• 50:07
  Speaker 3: a gift to the kid by the daughter. There's creditor issues,
• 50:11
  Speaker 3: divorce issues for the dot. I mean, you don't want
• 50:13
  Speaker 3: you don't want to go down that road. If you
• 50:15
  Speaker 3: can help it, I would just set up the trust
• 50:18
  Speaker 3: and don't just have it provided for by the child. Folks.
• 50:22
  Speaker 3: Top seven estate planning trusts. Find out which one's right
• 50:26
  Speaker 3: for you, and find out what how to get started
• 50:30
  Speaker 3: in your estate plan eight six six eight four eight
• 50:34
  Speaker 3: five six nine nine or Legal Exchange show dot com.
• 50:38
  Speaker 3: Top seven estate Planning Trusts eight six six eight four
• 50:41
  Speaker 3: eight five six nine nine.
• 50:44
  Speaker 2: Todd Lutsky from the law firm of Cushing and Dolan,
• 50:47
  Speaker 2: thank you so much.
• 50:48
  Speaker 3: Thank you, Susan. Always a pleasure.
• 50:49
  Speaker 2: I'm Susan Powers, a financial advisor with the Armstrong Advisory Group.
• 50:53
  Speaker 2: We thank you for joining us and we'll be back
• 50:55
  Speaker 2: again next week on the Legal Exchange with Todd Lutsky.
• 51:00
  Speaker 1: A trust isn't just a document. It's a powerful tool
• 51:03
  Speaker 1: that can help protect your assets from the nursing home
• 51:05
  Speaker 1: and even reduce or eliminate a state taxes. Cushing and
• 51:08
  Speaker 1: Dolan are leaders in elder law, estate planning, and asset protection.
• 51:12
  Speaker 1: This month, they're offering a free guide called Dmistifying the
• 51:15
  Speaker 1: Top seven estate Planning Trusts. This guide breaks down the
• 51:18
  Speaker 1: most common types of trusts, explains the pros and cons
• 51:20
  Speaker 1: of each, and helps you understand which might be right
• 51:23
  Speaker 1: for you and your family. Trust come with different rules, benefits,
• 51:26
  Speaker 1: and tax treatment, and choosing the wrong one could cost you.
• 51:30
  Speaker 1: Learning the differences now can help you make smarter decisions
• 51:32
  Speaker 1: for your future and your loved ones. Trusts are a
• 51:35
  Speaker 1: critical part of any well designed estate plan, but they
• 51:38
  Speaker 1: can be complex. Don't guess your way through it. Get
• 51:41
  Speaker 1: the facts first. Call Cushing and Dolan now at eight
• 51:44
  Speaker 1: sixty six eight four eight five six ninety nine to
• 51:46
  Speaker 1: request your free copy or visit legal exchange show dot
• 51:49
  Speaker 1: com the proceeding Who's paid for in the views? Express
• 51:51
  Speaker 1: or sole leaders of Cushing and Dolin, Cushing and Dolan
• 51:53
  Speaker 1: ind or Armstrong Advisory may contact you're offering legal or
• 51:55
  Speaker 1: investment services. Cushing and Dolan and Armstrong Advisory do not
• 51:58
  Speaker 1: endorse each other and are not affiliated HI.
• 52:00
  Speaker 6: This is Mike Armstrong from the Armstrong Advisory Group. When
• 52:02
  Speaker 6: it comes to legacy planning, having a will is important,
• 52:05
  Speaker 6: but it may not be enough. A will only covers
• 52:08
  Speaker 6: probate assets, and the probate process can be slow, public,
• 52:10
  Speaker 6: and expensive. That's where trusts come in. Trust can help
• 52:13
  Speaker 6: you avoid probate, keep your wishes private, and control how
• 52:17
  Speaker 6: and when your assets are distributed. Whether you're looking to
• 52:20
  Speaker 6: support family, minimize taxes, or prepare for the unexpected, a
• 52:23
  Speaker 6: well designed plan can make a meaningful difference. Our new
• 52:26
  Speaker 6: free guide Leaving a lasting legacy covers wills, trusts and
• 52:30
  Speaker 6: other strategies to help you build a strong retirement plan.
• 52:33
  Speaker 6: Take the first step towards clarity by calling eight hundred
• 52:36
  Speaker 6: three nine three for zero zero one right now and
• 52:39
  Speaker 6: asking for your free guide today. That number again is
• 52:41
  Speaker 6: eight hundred three nine three four zero zero one, or
• 52:44
  Speaker 6: requested online at Armstrong Advisory dot com.
• 52:47
  Speaker 1: The proceeding was paid for by Armstrong Advisory Group, a
• 52:49
  Speaker 1: registered investment advisor. Nothing in the ad or in any
• 52:51
  Speaker 1: Armstrong Guide a specific financial, legal or tax advice. Consult
• 52:54
  Speaker 1: your own financial tax into state planning advisors before making
• 52:56
  Speaker 1: any investment decisions. Armstrong make contact you to offer investment
• 52:59
  Speaker 1: advisory services. The holidays are just around the corner, so
• 53:03
  Speaker 1: now is the time to plan your winter escape. Trade
• 53:06
  Speaker 1: in the cold for sunshine, sea breezes and island vibes
• 53:09
  Speaker 1: in the US Virgin Islands, America's Caribbean paradise. Whether it's
• 53:14
  Speaker 1: a romantic retreat, a family celebration, or a solo recharge
• 53:18
  Speaker 1: before the new year, Saint Croix, Saint Thomas and Saint
• 53:21
  Speaker 1: John offer the ultimate warm weather getaway. Lounge on sun
• 53:26
  Speaker 1: drenched beaches, explore vibrant culture and celebrate the holiday's island style,
• 53:31
  Speaker 1: no passport, no hassle, just warm weather, clear blue water,
• 53:36
  Speaker 1: and unforgettable memories. This is where the stress melts away
• 53:40
  Speaker 1: and you find yourself naturally in rhythm with the heartbeat
• 53:43
  Speaker 1: of the islands. Go to visit usvii dot com and
• 53:46
  Speaker 1: book your trip today. That's visit USVII dot com the
• 53:50
  Speaker 1: US Virgin Islands, America's Caribbean paradise. Your holiday escape starts
• 53:56
  Speaker 1: here at visit usvii dot com.