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What happens when a will is lost? · 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: Here are your hosts, Tod 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
• 0:44
  Speaker 2: joined by Todd Lutsky, a partner with the law firm
• 0:47
  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'm never better in you.
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  Speaker 2: I'm great, Thank you and what do you have for
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  Speaker 2: us this week? I got a case besides the end
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  Speaker 2: of a summer.
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  Speaker 3: It is Oh yes it is and end of a month.
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  Speaker 3: Mm hmm. So both of which are not necessarily great,
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  Speaker 3: But I got a case out of DC and a
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  Speaker 3: pellet tax cord case there. Basically we're going to talk
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  Speaker 3: about when do you probate a lost will? Is it revoked?
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  Speaker 3: Is it lost or not revoked? Very very interesting case
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  Speaker 3: and basically this is going to show you how whenever
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  Speaker 3: you have uncertainty in your planning, you create lots of
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  Speaker 3: problems for the family. And I'm going to show you
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  Speaker 3: how to create certainty with it. Well, this will be
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  Speaker 3: a very interesting little dilemma there. Then from there we
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  Speaker 3: head south to Florida. We have an appellate court case
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  Speaker 3: in Florida dealing with joint tenancy or is it tendancy
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  Speaker 3: by the entirety? And what's the difference and why is
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  Speaker 3: there a difference when it comes to creditor protection, which
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  Speaker 3: you get with tye and perhaps not so much with
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  Speaker 3: joint tenancy. And at the end of the day, you
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  Speaker 3: like me, this is going to be one of these
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  Speaker 3: cases where you think the result should be one way
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  Speaker 3: and it's an other way, and you're going to say
• 2:01
  Speaker 3: you just don't get it, and I just don't get it.
• 2:04
  Speaker 3: But stay tuned, and I'll try to make it clear
• 2:07
  Speaker 3: so that we all get it okay, at least, so
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  Speaker 3: So please get it. End of the Month eight sixty
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  Speaker 3: And let's go to DC. What's going on here? So
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  Speaker 3: we have we have a doctor, doctor Kittrick. He executed
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  Speaker 3: a will in nineteen ninety eight, kept the original, but
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  Speaker 3: gave a copy to his girlfriend, Georgette. The will he
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  Speaker 3: gave in that will, he gave that girlfriend a two
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  Speaker 3: bedroom condo in Miami Beach. Well in two thousand and four.
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  Speaker 3: He made notes on the will on the nineteen ninety
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  Speaker 3: eight will, and he even drafted a handwritten will in
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  Speaker 3: twenty sixteen, and he had notes, and the notes seemed
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  Speaker 3: to revoke certain portions of the nineteen ninety eight will.
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  Speaker 3: Well on December ninth, twenty nineteen. He died in December
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  Speaker 3: twenty six Georgette tried to probate the photocopy of the
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  Speaker 3: nineteen ninety eight will because they could not find the original. Well,
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  Speaker 3: the Sun opposed that. So again, they're not married, So
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  Speaker 3: this is somewhat akin to a second marriage, even though
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  Speaker 3: it's a.
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  Speaker 2: Significant other together they were still together though, oh.
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  Speaker 3: They might have been together according to this, he doesn't
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  Speaker 3: say one way or another. I assume they were. But again,
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  Speaker 3: she's just a girlfriend, so together or not doesn't change
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  Speaker 3: who you leave assets to. You can leave assets to
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  Speaker 3: anybody you want. And so the trial court came in
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  Speaker 3: the sun opposed it and said no, and the trial
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  Speaker 3: court agreed that agreed with the son, saying, you know, Georgette,
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  Speaker 3: your petition for the for the will will be denied
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  Speaker 3: because you did not rebut the presumption that doctor Kittrick
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  Speaker 3: revoked his old will. I remember, folks, this is a
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  Speaker 3: this is a DC case. Everything is state specific here, right,
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  Speaker 3: I know DC is not a state, but everything is
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  Speaker 3: sort of states specific. And so here there's a presumption
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  Speaker 3: that if you can't find the will, that it's revoked. Now,
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  Speaker 3: not every state might be that way. So that's the
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  Speaker 3: presumption that she had to, you know, rebut and the
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  Speaker 3: trial court said she didn't. Well, the appellate court, of course,
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  Speaker 3: she appealed, and the appellate court said, she argued that
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  Speaker 3: wait a minute, the writings on the notes and the
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  Speaker 3: writings and the notes on the will evidenced his intent
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  Speaker 3: to keep his old will because it didn't revoke it. It
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  Speaker 3: changed certain parts of it, and it wasn't revoked. Plus
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  Speaker 3: she had a four decade relationship with him. Well, the
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  Speaker 3: court affirmed the trial court and basically said, Georgette, you
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  Speaker 3: haven't you have to rebut the presumption of a revocation
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  Speaker 3: when a will is lost, right, that being that the
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  Speaker 3: testator destroyed it during life and writings on a will.
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  Speaker 3: Modifying a will is not evidence of his intent to
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  Speaker 3: not revoke.
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  Speaker 2: It doesn't count.
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  Speaker 3: It doesn't count. So in this case, and by the way,
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  Speaker 3: outside the will, you got a two million dollar home
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  Speaker 3: in one point three million in cash, so I'm pretty
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  Speaker 3: sure you were provided for, right, So I guess it's okay.
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  Speaker 3: But folks, what do we Why am I telling you
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  Speaker 3: this story?
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  Speaker 1: Right?
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  Speaker 3: I mean, ultimately, at the end.
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  Speaker 2: Of the day, she got bad advice is what she got.
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  Speaker 3: I think she got taken care of. And this presumption
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  Speaker 3: of a revoked will is important, really important here because
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  Speaker 3: if if they can't find the original and it's presumed revoked,
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  Speaker 3: makes a big difference in terms of who gets stuff
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  Speaker 3: because why they aren't married, right, So let's talk about
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  Speaker 3: that for a minute. So a second marriage, this is
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  Speaker 3: like a second marriage, right, So one lesson is if
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  Speaker 3: you are and I see it all the time with
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  Speaker 3: older folks who maybe lost their spouses. They get together
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  Speaker 3: and they're not married.
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  Speaker 2: And they don't want to get married.
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  Speaker 3: They don't want to get married. Sometimes it's not financially
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  Speaker 3: smart to get married and at the end of the day,
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  Speaker 3: they want to take care of each other. You better
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  Speaker 3: not leave it uncertain like this, and certainly not in
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  Speaker 3: a will creates problems. Right, you can put together a
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  Speaker 3: trust together, you could protect the real estate. So make
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  Speaker 3: sure you do your planning. If you want to take
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  Speaker 3: care of a significant other and your own family, that's
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  Speaker 3: the combination. So here's why it's so important though in
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  Speaker 3: this case, since this is now determined that the old
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  Speaker 3: will is revoked because the presumption was not rebutted, he
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  Speaker 3: dies effectively without a will or what we call intestate.
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  Speaker 3: So what does that mean? You have to go to
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  Speaker 3: the intestate succession statute of that state to determine who's
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  Speaker 3: going to get these assets. Yep. Well they're not married,
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  Speaker 3: so she's not even on the list. Right, she doesn't
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  Speaker 3: even make the cut, so be getting nothing. So if
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  Speaker 3: she wasn't given something outside the will directly and everything
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  Speaker 3: was a probate asset and went through the will and
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  Speaker 3: went through the intestate succession program, she wouldn't get anything.
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  Speaker 3: Nothing doesn't matter if you have a four decade relationship,
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  Speaker 3: you're not married, yep, So that really makes a big difference,
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  Speaker 3: and you should think about that folks, for all of
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  Speaker 3: you out there when you're planning. But again, you were right, Susan.
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  Speaker 3: You know, inn a state this large, with multiple properties
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  Speaker 3: that they must have had, you're gonna have probate in
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  Speaker 3: multiple states. You know, what's the big picture? Do a
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  Speaker 3: trust you would have avoided probate in all these states.
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  Speaker 3: And not to mention the fact, you know, I know
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  Speaker 3: this person probably didn't need to worry about medicaid or
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  Speaker 3: protection of assets. But let's expand this to the listenership
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  Speaker 3: who might have less assets. Right, you should put this
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  Speaker 3: in a trust. That way, you know you could protect
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  Speaker 3: it if you wanted to, really for the significant other.
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  Speaker 3: If you really wanted to, you could have avoided probate.
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  Speaker 3: You could have protected it from the nursing home. You
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  Speaker 3: could have made sure it was there for that significant other.
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  Speaker 3: You could have even provided a little money in the
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  Speaker 3: trust to maintain the property for her if need be. Yep,
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  Speaker 3: if she didn't have the means to maintain it on
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  Speaker 3: her own, and then not only did it, is it
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  Speaker 3: protected for her so it's not taken if you got sick.
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  Speaker 3: When she dies, it can be available for your family. Again,
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  Speaker 3: this is a kin to a second marriage without the
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  Speaker 3: marriage part. You were married, you had kids, you now
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  Speaker 3: have a girlfriend. You're divorced, but you still have children
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  Speaker 3: and if you want to take care of them this
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  Speaker 3: using a trust really would have been the way to
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  Speaker 3: go here. And in addition, you could have put a
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  Speaker 3: trustee on as one of your kids, maybe with her
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  Speaker 3: little checks and bounces. I mean, there's so much to
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  Speaker 3: do here. It's really the uncertainty of the planning that
• 9:54
  Speaker 3: left people hanging here and created all these problems. Don't
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  Speaker 2: You've been listening to Todd Lutsky, a partner with the
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  Speaker 2: law firm of Cushing and Dolan with a master's in taxation.
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  Speaker 2: I'm Susan Powers, a financial advisor with the Armstrong Advisory Group.
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  Speaker 2: We have much more to come when we return in
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  Speaker 2: just a few minutes to the Legal Exchange with Todd Lutsky.
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  Speaker 1: You're listening to the Legal Exchange with Todd Lutsky, an
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  Speaker 1: Eight sixty six eight four eight five six nine nine.
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  Speaker 1: That's eight six six eight four eight five six ninety nine.
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  Speaker 2: Welcome back into the legal exchange with Todd Lutsky. I'm
• 14:29
  Speaker 2: Susan Powers, a financial advisor with the Armstrong Advisory Group,
• 14:32
  Speaker 2: and I'm joined by Todd Lutsky, a partner with the
• 14:35
  Speaker 2: law firm of Cushing and Dolan with a master's in taxation.
• 14:39
  Speaker 2: Where we headed now, Todd, Florida.
• 14:42
  Speaker 3: How's that that sounds good? Little down South.
• 14:44
  Speaker 2: Florida, warm there this time of year, though.
• 14:46
  Speaker 3: It is all right, I don't mind Florida Appellate Court
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  Speaker 3: joint tenancy or tenancy by the entirety. And what the
• 14:53
  Speaker 3: heck does all this mean? And by the way, this
• 14:55
  Speaker 3: is the head scratcher case. Folks, listen to these facts.
• 14:59
  Speaker 3: So there's a credit chasing Linda who sought to garnish
• 15:04
  Speaker 3: an account, a bank account titled in her name and
• 15:09
  Speaker 3: her husband's name, Peter. On February twenty seventeen, Peter opened
• 15:14
  Speaker 3: an account in his name alone. Then later on in
• 15:18
  Speaker 3: October of twenty seventeen, a long time later, he added Linda.
• 15:24
  Speaker 3: They executed new signature cards and they checked the box
• 15:28
  Speaker 3: saying that this is a tendency by the entirety account, okay,
• 15:33
  Speaker 3: and so they say that. So Linda argues to the creditor,
• 15:38
  Speaker 3: this is a t bye account. It were exempt from creditors.
• 15:42
  Speaker 3: Now there's some truth to that, folks, So let's keep going.
• 15:46
  Speaker 3: The creditor said, oh, no, no, because there's something called
• 15:49
  Speaker 3: unity of time and title and those were not present here.
• 15:55
  Speaker 3: What does that mean? Peter opened the account in February
• 15:59
  Speaker 3: on his own unity of time and title. Only later
• 16:04
  Speaker 3: did he decide to add her name to the account.
• 16:06
  Speaker 3: And so since it wasn't done at the same time,
• 16:09
  Speaker 3: you don't have this unity of time and title. Now
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  Speaker 3: again I don't know. Again, this is a state law situation.
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  Speaker 3: It might be different in each state. How you create
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  Speaker 3: these So they said no, and so the trial court said, yeah, no,
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  Speaker 3: you're right, creditor. There was no unity of time and
• 16:28
  Speaker 3: title to create the tye. Therefore the creditor can garnish
• 16:33
  Speaker 3: the account. Well, as you might imagine, she wasn't happy
• 16:39
  Speaker 3: with that, so she appealed. The appellate court pointed out
• 16:44
  Speaker 3: that Florida law presumes property, whether it's real or personal,
• 16:52
  Speaker 3: held in both spouse's name, is intended to be held
• 16:56
  Speaker 3: by tendency by the entirety. But Florida case law seems
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  Speaker 3: to indicate that they've done away with this requirement of
• 17:06
  Speaker 3: unity of time and title to create a valid t BYE.
• 17:12
  Speaker 3: So the court affirmed the trial court and said, creditor,
• 17:16
  Speaker 3: you can go ahead and take it. So I this
• 17:20
  Speaker 3: is where I'm scratching my head. Right, the creditor gets
• 17:24
  Speaker 3: to take this. The law in Florida presumes t BYE
• 17:31
  Speaker 3: and case law said you don't need the requirement of
• 17:36
  Speaker 3: unity of time and title, right, And yet they said,
• 17:40
  Speaker 3: and yet they said take it. This is a case
• 17:42
  Speaker 3: where I just I have to just scratch my head
• 17:46
  Speaker 3: and say. Even the editor wrote in the thing what
• 17:50
  Speaker 3: and had a big question mark, And I'm saying the
• 17:54
  Speaker 3: same thing. So if you're falling along, folks, you're right,
• 17:56
  Speaker 3: you should be scratching your head. It sounds like in
• 17:58
  Speaker 3: Florida at least this should be t bye.
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  Speaker 2: So I think you need you can step back and
• 18:02
  Speaker 2: explain t YE versus jointless survivorship.
• 18:08
  Speaker 3: And I'm going to do that, But first I'm going
• 18:10
  Speaker 3: to tell you and remind you that it's the end
• 18:12
  Speaker 3: of the month, and folks, that guide is the unlocking
• 18:16
  Speaker 3: the power of medicaid, irrevocable trusts, and how do I
• 18:20
  Speaker 3: make the segue here? Please don't own things jointly or
• 18:23
  Speaker 3: tendency by the entirety, Folks. You want credit or protection,
• 18:26
  Speaker 3: you want probate avoidance, you want to control your assets.
• 18:29
  Speaker 3: Get the trust. Get the guide, Learn how the trust works.
• 18:33
  Speaker 3: Most importantly, it explains to you in a question answer format,
• 18:37
  Speaker 3: how these trusts operate, not only from a tax perspective,
• 18:41
  Speaker 3: but a day to day operation perspective while you're living,
• 18:45
  Speaker 3: so you know exactly the dos and don'ts. You'll know
• 18:48
  Speaker 3: when you're done whether this guide is whether these kinds
• 18:51
  Speaker 3: of trust, excuse me, are right for you or not?
• 18:55
  Speaker 3: Eight six six eight four eight five six nine nine
• 18:59
  Speaker 3: or Legal Exchange show dot Com Again end of the month, folks,
• 19:03
  Speaker 3: last chance to get it eight six six eight four
• 19:06
  Speaker 3: eight five six nine nine or Legal Exchange Show dot Com.
• 19:12
  Speaker 3: Now we got to come back to this. You're absolutely
• 19:15
  Speaker 3: right to me. This thing sounds like you don't need
• 19:17
  Speaker 3: unity of time and title in Florida. And the law
• 19:20
  Speaker 3: presumes it's c bye, so therefore this should be t bye.
• 19:24
  Speaker 3: But yet they said no, it's not, and the creditor
• 19:26
  Speaker 3: can garnish the wage. Okay, Todd, What is tendency by
• 19:29
  Speaker 3: the entirety? Generally it applies to real estate, that's what
• 19:34
  Speaker 3: I thought. Can it apply to bank accounts?
• 19:36
  Speaker 1: Yes?
• 19:37
  Speaker 3: Again, states specific, state specific, So it's not that it didn't. Well,
• 19:43
  Speaker 3: it applied, but I don't know how. You're right, I
• 19:45
  Speaker 3: don't even understand it. But it could apply to real estate,
• 19:49
  Speaker 3: which it generally does, and it can also apply to
• 19:52
  Speaker 3: bank accounts or brokerage accounts, so either one. What does
• 19:57
  Speaker 3: it do well? With real estate? What it means is,
• 19:59
  Speaker 3: and mostly you'll find it. You've got to be married,
• 20:01
  Speaker 3: and again the requirements are different in every state, but
• 20:04
  Speaker 3: you've got to be married, and you've got to have
• 20:07
  Speaker 3: the house like your primary residence owned husband and wife,
• 20:12
  Speaker 3: and then you own it. Tendancy by the entirety you
• 20:14
  Speaker 3: put joint tye right on the deed, okay. And so
• 20:19
  Speaker 3: what does that mean? Well, it means that if in
• 20:23
  Speaker 3: this case, the wife is being sued has her own
• 20:27
  Speaker 3: creditor chasing her, they cannot go after the house because
• 20:33
  Speaker 3: they cannot force the house to be split without both signatures.
• 20:38
  Speaker 3: In other words, in order to transfer a t bye,
• 20:41
  Speaker 3: you need both signatures where if it's joint you can
• 20:44
  Speaker 3: just take your half and convey it. So here you
• 20:48
  Speaker 3: need both signatures, and this provides some creditor protection. Same
• 20:54
  Speaker 3: idea with a bank account or a brokerage account. That's
• 20:58
  Speaker 3: what tendancy by the idea by the entirety means. Now,
• 21:04
  Speaker 3: remember it does protect it from those kinds of creditors,
• 21:09
  Speaker 3: but it doesn't protect it. Let's talk about what it
• 21:12
  Speaker 3: doesn't do. It doesn't protect it from a nursing home.
• 21:17
  Speaker 3: So don't think that I talk about nursing homes all
• 21:19
  Speaker 3: the time and because I own my property join tendancy
• 21:21
  Speaker 3: by the entirety of the nursing home can't get it.
• 21:23
  Speaker 3: That's not true. There are other rules that apply to
• 21:26
  Speaker 3: primary residences. But it's not because it's tendency by the entirety.
• 21:31
  Speaker 3: It does not help reduce your estate tax liability at all. Right,
• 21:34
  Speaker 3: what happens, Well you die, it does pass to the
• 21:36
  Speaker 3: surviving joint owner. It's convenient it avoids probate, but it
• 21:40
  Speaker 3: certainly isn't going to help reduce the estate tax. So
• 21:43
  Speaker 3: it will avoid probate by passing to the spouse, but
• 21:47
  Speaker 3: of course it'll be subject to probate on the second death.
• 21:51
  Speaker 3: So those are all things to think about that it
• 21:53
  Speaker 3: doesn't do now. Property owned husband and wife in the
• 21:58
  Speaker 3: your trusts never t BYE. It's not joint. So when
• 22:03
  Speaker 3: you put half property in one trust and half a
• 22:05
  Speaker 3: property in another trust, those are tenants in common, okay,
• 22:09
  Speaker 3: because you can't have joint property between trust and you
• 22:13
  Speaker 3: certainly can't have joint property t BYE between trusts. So
• 22:16
  Speaker 3: it's important to know that. So let's talk a little
• 22:20
  Speaker 3: bit about So that's one issue that's all about real
• 22:24
  Speaker 3: estate and or investment accounts. But let's expand this because
• 22:28
  Speaker 3: so many people say, well, what's the difference between t
• 22:32
  Speaker 3: BYE and joint.
• 22:33
  Speaker 2: That's what I said. I'm amongst them, right, what do
• 22:36
  Speaker 2: we do?
• 22:36
  Speaker 3: Well, lots of times a joint account you are allowed
• 22:40
  Speaker 3: to have one signature to transfer it you don't like.
• 22:43
  Speaker 3: So if it's a joint owners if I own property
• 22:46
  Speaker 3: jointly with another person and I want to transfer my
• 22:50
  Speaker 3: half of the property, I can just sign the deed
• 22:52
  Speaker 3: transferring my half and I don't have to tell the
• 22:55
  Speaker 3: other person.
• 22:56
  Speaker 2: Right, you can act independently.
• 22:57
  Speaker 3: I can act independently. It's my half, I can transfer
• 22:59
  Speaker 3: to who I want. But if it's joint and I die,
• 23:04
  Speaker 3: it does go to the surviving joint owner. So when
• 23:07
  Speaker 3: you have a joint bank account, let's say with a
• 23:09
  Speaker 3: child on it, that could go to that surviving child
• 23:15
  Speaker 3: and you ultimately could disinherit your other kids the rest
• 23:17
  Speaker 3: of the kids. Yeah, think about this problem too. Joint
• 23:21
  Speaker 3: again different than tendency by the entirety. If you have
• 23:24
  Speaker 3: an asset that's joint with a child, it's subject to
• 23:27
  Speaker 3: the child's creditors halfurces half anyway right, half half for
• 23:32
  Speaker 3: the creditors, divorces, etc. So folks owning assets jointly or
• 23:37
  Speaker 3: t bye has its pros and its cons. To me,
• 23:41
  Speaker 3: it's not the way to do planning right. This is
• 23:44
  Speaker 3: all about really no planning was done here and that's
• 23:47
  Speaker 3: what created all this problem, all these problems. Instead, figure
• 23:52
  Speaker 3: out what trust is right for you. Get the guide
• 23:54
  Speaker 3: Unlocking the power for Medicaid irrevocable trust. Learn whether this
• 23:58
  Speaker 3: is the way to go for you or not. Eight
• 24:00
  Speaker 3: six six eight four eight five six ninety nine or
• 24:05
  Speaker 3: Legal Exchange show dot com.
• 24:07
  Speaker 2: You've been listening to Todd Lutsky, a partner with the
• 24:10
  Speaker 2: law firm of Cushing and Dolan I'm Susan Powers, a
• 24:13
  Speaker 2: financial advisor with the Armstrong Advisory Group, and Todd will
• 24:17
  Speaker 2: be answering your listener questions when we return to the
• 24:20
  Speaker 2: Legal Exchange with Todd Lutsky.
• 24:23
  Speaker 1: Elder life planning can be overwhelming, so make sure you're
• 24:26
  Speaker 1: prepared or you could make costly mistakes that affect your
• 24:29
  Speaker 1: overall plan. Irrevocable trusts are the most common type of
• 24:33
  Speaker 1: trust that folks use for financial protection, and while they
• 24:36
  Speaker 1: can be complicated to create, they help keep your assets
• 24:39
  Speaker 1: safe because they contain specific protections that many of us need,
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• 24:49
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• 24:51
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  Speaker 1: trusts can benefit your family by calling eight sixty six
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  Speaker 1: eight four eight five six nine nine right now. That's
• 25:04
  Speaker 1: eight six six eight four eight five six nine nine,
• 25:07
  Speaker 1: or you can request the guide right now by visiting
• 25:10
  Speaker 1: Legal Exchange show dot com. The proceeding was paid for
• 25:13
  Speaker 1: in the views expressed our solely those of Cushingan Dolan.
• 25:15
  Speaker 1: Cushingian Dolan and or Armstrong Advisory may contact you offering
• 25:18
  Speaker 1: legal or investment services. Cushingan Dolan and Armstrong Advisory do
• 25:21
  Speaker 1: not endorse each other and are not affiliated.
• 25:23
  Speaker 4: Last year, we introduced you to Mark Fodder, CEO of
• 25:26
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• 25:29
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• 25:31
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• 25:37
  Speaker 7: serve probably from nineteen eighty one to nineteen eighty four.
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• 25:43
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• 26:14
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• 26:20
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• 27:25
  Speaker 1: Legal Exchange and it's time for Ask Todd, the segment
• 27:29
  Speaker 1: where Todd will answer your questions about anything and everything
• 27:32
  Speaker 1: that's included in the estate planning process. Once again, here's
• 27:36
  Speaker 1: Todd Lutsky and Susan Powers.
• 27:40
  Speaker 2: Welcome back, Todd. We have a few questions from listeners
• 27:43
  Speaker 2: for you. First question comes from Sarah in Concord, New Hampshire,
• 27:46
  Speaker 2: and Sarah writes, my mother has an irrevocable trust which
• 27:50
  Speaker 2: owns five million in real estate. She has investments of
• 27:54
  Speaker 2: around one million that are not in her trust currently.
• 27:57
  Speaker 2: She's a New Hampshire resident, so we aren't worry about
• 28:00
  Speaker 2: estate taxes.
• 28:01
  Speaker 3: And she's single. We're going to assume she's widowed.
• 28:03
  Speaker 2: To make a comment about dat there's.
• 28:06
  Speaker 3: No surviving spouse.
• 28:07
  Speaker 2: Yeah, okay, would you recommend we transfer the one million
• 28:10
  Speaker 2: into an existing revocable trust that she already has. She
• 28:14
  Speaker 2: doesn't need any of the one million because her fixed
• 28:16
  Speaker 2: income and rmds more than cover her expenses. The goal
• 28:21
  Speaker 2: is to minimize probate and maximize the step up in basis.
• 28:25
  Speaker 3: So there's a lot of things packed in there.
• 28:27
  Speaker 2: Yeah, it sounds like maybe she had this revocable trust
• 28:30
  Speaker 2: and men did your evocable trust planning and put the
• 28:32
  Speaker 2: real estate in it.
• 28:33
  Speaker 3: Maybe she moved to New Hampshire afterwards. I don't know.
• 28:35
  Speaker 3: So we have a lot to unpack, you know. One,
• 28:38
  Speaker 3: you know, the type of irrevocable trust that holds the
• 28:41
  Speaker 3: real estate. Is she getting rental income from that real estate?
• 28:44
  Speaker 3: I mean, I don't know if that's multiple properties, some
• 28:47
  Speaker 3: are rented, some aren't. I mean, so when you say
• 28:49
  Speaker 3: she's got enough money coming in from her rmds and
• 28:52
  Speaker 3: her investment.
• 28:53
  Speaker 2: Income, yeah, no, So I had to paraphrase because it
• 28:56
  Speaker 2: was a very long question that came in.
• 28:57
  Speaker 3: She's got a couple of annuities that are dividing in
• 28:59
  Speaker 3: so income might not be rental in No, No, it's income, okay,
• 29:03
  Speaker 3: But folks, just so you know, to expand a little
• 29:06
  Speaker 3: you could still be getting rental income. From property in
• 29:09
  Speaker 3: an irrevocable trust. All depends how it's drafted, right and
• 29:13
  Speaker 3: what it says. And that's really going to hold us
• 29:15
  Speaker 3: up a little bit on how to answer this question.
• 29:18
  Speaker 3: Because you know, we talk about step up in basis,
• 29:21
  Speaker 3: we talk about income. We really would need to know
• 29:23
  Speaker 3: how that trust is drafted. But I'll explain it both ways.
• 29:28
  Speaker 3: So one if it has rental property in it, and
• 29:31
  Speaker 3: we're going to address first to step up in basis piece, Okay,
• 29:34
  Speaker 3: certainly everything in this trust or anything that she decides
• 29:38
  Speaker 3: to put in that revocable trust that you mentioned. Ye,
• 29:41
  Speaker 3: And by the way, yes, I do think the revocable
• 29:43
  Speaker 3: trust is a great idea, and I do think that
• 29:47
  Speaker 3: the revocable trust should hold that million dollars. Okay, So
• 29:50
  Speaker 3: that I guess that's an easy answer there. There's no
• 29:52
  Speaker 3: downside to that. Right you put your you put that
• 29:55
  Speaker 3: money in a revocable trust, you're going to avoid the probate,
• 29:58
  Speaker 3: which you might not be doing now you're in charge
• 30:02
  Speaker 3: of it. After all, it's revocable, so you will remain
• 30:05
  Speaker 3: being the trustee and the donor, and you will get
• 30:09
  Speaker 3: all the income because you're allowed to take it, and
• 30:13
  Speaker 3: you can take all the principle, so you don't even
• 30:15
  Speaker 3: if just rely on the income. If you needed more
• 30:17
  Speaker 3: money because you wanted to take a trip, you could
• 30:20
  Speaker 3: just reach in and take out any amount of that
• 30:22
  Speaker 3: million dollar principle that you want as well. So yes,
• 30:26
  Speaker 3: I love the revocable trust idea for the million dollars.
• 30:29
  Speaker 3: In addition to all of that, when you die, you
• 30:33
  Speaker 3: can determine how it goes. You can control, you know,
• 30:38
  Speaker 3: whether it's divorce protected for the kids, generation skipping transfer
• 30:42
  Speaker 3: taxation benefits to the grandkids. I mean, you can really
• 30:46
  Speaker 3: control after you die how those assets go. So I
• 30:49
  Speaker 3: think we've exhausted the revocable trust. Oh and by the way,
• 30:53
  Speaker 3: what's in that revocable trust on the investment side will
• 30:57
  Speaker 3: also get a step up in basis, So if there's
• 30:59
  Speaker 3: a lot of stocks that she bought that have grown
• 31:02
  Speaker 3: over the years, that capital gain will also be eliminated.
• 31:07
  Speaker 2: So that checks the box of maximizing the step up
• 31:10
  Speaker 2: in basis.
• 31:11
  Speaker 3: On that, you've really got to focus on the five
• 31:14
  Speaker 3: million because real estate generally has a lot of gain
• 31:17
  Speaker 3: built in it, especially if it's rental property and you've
• 31:20
  Speaker 3: depreciated it over your lifetime. There could be a ton
• 31:24
  Speaker 3: of gain built into these properties in this real estate,
• 31:27
  Speaker 3: in the real estate trust. I'll call it. It's an
• 31:30
  Speaker 3: irrevocable trust full of real estate. Please read it now.
• 31:34
  Speaker 3: The way we could have drafted it is it could
• 31:36
  Speaker 3: be designed where she could get the income. If she
• 31:39
  Speaker 3: would get the income from that trust, then it would
• 31:42
  Speaker 3: cause inclusion in her estate when she dies, not probate,
• 31:46
  Speaker 3: we're avoiding that, but it would have got included for
• 31:50
  Speaker 3: estate tax purposes, giving her a step up in basis
• 31:54
  Speaker 3: and eliminating all the built in gain on that real estate.
• 31:57
  Speaker 2: Which would be fine because she lives in New Hampshire,
• 32:00
  Speaker 2: so no state estate tax and no.
• 32:02
  Speaker 3: Federal exactly well as of now, no federal correct six
• 32:05
  Speaker 3: million dollars no federal And you're right, she's in New Hampshire,
• 32:08
  Speaker 3: so we don't have a state estate tax. So wow,
• 32:12
  Speaker 3: we win on both the estate tax side and the
• 32:16
  Speaker 3: income tax side. So I love this if that's how
• 32:19
  Speaker 3: it reads, right, So we just got to figure out
• 32:22
  Speaker 3: how she owns that is it? And secondly, is it
• 32:24
  Speaker 3: a grand tor trust? I mean, who's paying the income
• 32:26
  Speaker 3: tax on that? If there's rent? You know, if it's
• 32:29
  Speaker 3: a grand tour trust, then yes, she'd be getting you know,
• 32:33
  Speaker 3: the income included on her tax return and not having
• 32:36
  Speaker 3: an adverse annual income tax problem either. And if it's
• 32:40
  Speaker 3: drafted right, it might be protected from the nursing home.
• 32:42
  Speaker 3: So it really depends on what that trust has, folks.
• 32:45
  Speaker 3: But you're starting to see how these trusts, depending on
• 32:48
  Speaker 3: what they do, can offer all kinds of benefits. So
• 32:53
  Speaker 3: can the trust we're giving away this month. End of
• 32:56
  Speaker 3: the month, folks, Last chance to get unlocking the power
• 33:00
  Speaker 3: of Medicaid irrevocable trusts. If you've ever wondered whether an
• 33:04
  Speaker 3: irrevocable trust is right for you, this guide will answer
• 33:08
  Speaker 3: your question. It explains how it works day to day
• 33:13
  Speaker 3: for you, so you know what you're doing and what
• 33:15
  Speaker 3: you can't do, and it explains all the tax gift
• 33:18
  Speaker 3: to state tax consequences. Call and get it last Chance
• 33:22
  Speaker 3: eight sixty six eight four eight five six nine nine
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  Speaker 3: or Legal Exchange Show dot com. In a nice question
• 33:29
  Speaker 3: and answer format, you'll learn how these work. Eight six
• 33:32
  Speaker 3: six eight four eight five six nine nine or Legal
• 33:37
  Speaker 3: Exchange Show dot Com.
• 33:39
  Speaker 2: If you don't mind, I want to ask a couple
• 33:41
  Speaker 2: more questions about Sarah's in her mom's situation. So if
• 33:45
  Speaker 2: let's say mom had that revocable trust okay, before her
• 33:49
  Speaker 2: revocable trust okay, and then down the road, after she
• 33:53
  Speaker 2: had that revocable trust created, she went to a different
• 33:57
  Speaker 2: attorney and created an ere eeviole trust. Would those two
• 34:02
  Speaker 2: trusts need to have been created by the same attorney
• 34:05
  Speaker 2: for them to work, you know, like in conjunction with
• 34:07
  Speaker 2: each other, like from a tax and a bloodline and
• 34:11
  Speaker 2: that kind of thing.
• 34:13
  Speaker 3: I'm assuming at this point she's still single, so you
• 34:16
  Speaker 3: don't have to consider any any other assets. I would say, no,
• 34:19
  Speaker 3: you you could have two attorneys, okay. In other words,
• 34:23
  Speaker 3: if they if they came to me after the revocable
• 34:26
  Speaker 3: trust was done, I would have certainly asked, how is
• 34:29
  Speaker 3: the five million dollars owned? I would have only assumed
• 34:32
  Speaker 3: that the five million dollars of real estate would have
• 34:35
  Speaker 3: been in the revocable trust along with the million dollars.
• 34:39
  Speaker 3: So I would have said, look, you've got everything you
• 34:42
  Speaker 3: need in terms of avoiding probate bloodline planning to your family.
• 34:48
  Speaker 3: How you're going to leave the assets to the family,
• 34:51
  Speaker 3: you know, not so much a state taxes. Again, if
• 34:54
  Speaker 3: you're in New Hampshire, you don't have an estate tax problem.
• 34:57
  Speaker 2: But it's not always about the taxes, right.
• 35:00
  Speaker 3: But my point, and I think your question is really this.
• 35:04
  Speaker 3: If they're coming to me after this is done, I
• 35:07
  Speaker 3: would have asked all those questions. I would have said,
• 35:09
  Speaker 3: you know what, I'm not sure you need the irrevocable trust,
• 35:13
  Speaker 3: so I might have never mind drafting it, which I
• 35:15
  Speaker 3: could do. I would have first determined whether or not
• 35:19
  Speaker 3: it's needed based on their wishes, which kind of makes
• 35:22
  Speaker 3: me scratch my head here. But I would have said,
• 35:25
  Speaker 3: if you're accomplishing all these objectives and you're not worried
• 35:29
  Speaker 3: about the nursing home, then you might not need the
• 35:32
  Speaker 3: irrevocable because we're certainly not making it a completed gift.
• 35:35
  Speaker 3: We don't need to gift. In fact, I want you
• 35:37
  Speaker 3: to die owning it. Right. You don't have an estate
• 35:39
  Speaker 3: tax reason to give it, so what you have is great.
• 35:43
  Speaker 3: But if you really want to protect that real estate
• 35:45
  Speaker 3: from the nursing home, then we would unwind that and
• 35:48
  Speaker 3: put together the irrevocable trust.
• 35:50
  Speaker 2: So let's say, in this instance, it's not rental property,
• 35:53
  Speaker 2: it's you know, it's ocean front, beautiful property.
• 35:56
  Speaker 3: It's just very dispense, right, Yeah, sure, so.
• 35:58
  Speaker 2: She is indicated that mom doesn't need any of the
• 36:02
  Speaker 2: million dollars because she's got annuity, she's got her RMD,
• 36:05
  Speaker 2: she's got her social if she doesn't need access to
• 36:09
  Speaker 2: any of that million, is there a downside from putting
• 36:12
  Speaker 2: that into the irrevocable trust versus along with.
• 36:16
  Speaker 3: The Yeah, probably not. And again would I put the
• 36:20
  Speaker 3: whole million in? No, even though she's got all that,
• 36:23
  Speaker 3: I always want to leave a cushion outside, play money,
• 36:26
  Speaker 3: fun money, you know, you name it, just for her
• 36:28
  Speaker 3: to have. So I wouldn't put it all in, even
• 36:31
  Speaker 3: if you left a quarter million out, or two hundred
• 36:34
  Speaker 3: thousand out, even if you put eight hundred thousand in. No,
• 36:37
  Speaker 3: there's no downside because again, if it's an irrevocable medicaid trust,
• 36:41
  Speaker 3: much like the one I'm talking about in the guide,
• 36:43
  Speaker 3: if that's what we're doing for this person, you would
• 36:46
  Speaker 3: still get all the income, you would still get all
• 36:50
  Speaker 3: the ability to manage that money, You would have extra,
• 36:54
  Speaker 3: you know so, and you even have ways to get principal.
• 36:57
  Speaker 3: So folks learn about this guy, I'd see if it's
• 37:00
  Speaker 3: learn about these trustees medicate irrevocable trust. They might be
• 37:04
  Speaker 3: right for you eight six six, eight four, eight five
• 37:07
  Speaker 3: six nine to nine or Legal Exchange Show dot com.
• 37:11
  Speaker 2: If you have a question you would like to ask Tod,
• 37:13
  Speaker 2: visit his website Legal Exchange Show dot com and click
• 37:17
  Speaker 2: on the ask Tod tab. Maybe I'll be able to
• 37:19
  Speaker 2: read your question on the air, and hopefully his answer
• 37:22
  Speaker 2: will stop you from becoming one of his next real
• 37:24
  Speaker 2: life stories. You've been listening to Todd Lutsky, a partner
• 37:28
  Speaker 2: with the law firm of Cushing and Dolan. I'm Susan Powers,
• 37:32
  Speaker 2: a financial advisor with the Armstrong Advisory Group, and we'll
• 37:35
  Speaker 2: be back with more after this quick break on the
• 37:37
  Speaker 2: Legal Exchange with Todd Lutsky.
• 37:40
  Speaker 1: Elder life planning can be overwhelming, so make sure you're
• 37:43
  Speaker 1: prepared or you can make costly mistakes that affect your
• 37:46
  Speaker 1: overall plan. The irrevocable trusts are the most common type
• 37:50
  Speaker 1: of trust that folks use for financial protection, and while
• 37:52
  Speaker 1: they can be complicated to create, they help keep your
• 37:55
  Speaker 1: assets safe because they contain specific protections that many of
• 37:59
  Speaker 1: us need, the possibility of eliminating your estate taxes. Cushing
• 38:03
  Speaker 1: and Dolan are experts in elder lawn taxation and they
• 38:06
  Speaker 1: can devise a plane that covers you in every area
• 38:08
  Speaker 1: where issues can rise. Their new guide is called Unlocking
• 38:11
  Speaker 1: the Power of Irrevocable Medicaid Trusts. Learn more about how
• 38:15
  Speaker 1: these trusts can benefit your family by calling eight sixty
• 38:18
  Speaker 1: six eight four eight five six nine nine right now.
• 38:21
  Speaker 1: That's eight sixty six eight four eight five six nine nine.
• 38:24
  Speaker 1: Or you can request the guide right now by visiting
• 38:27
  Speaker 1: legal Exchange showed dot com. The proceeding was paid for
• 38:30
  Speaker 1: and the views expressed are solely those of Cushing and Dolan.
• 38:32
  Speaker 1: Cushing and Dolan and or Armstrong Advisory may contact you
• 38:35
  Speaker 1: offering legal or investment services. Cushing and Dolan and Armstrong
• 38:38
  Speaker 1: Advisory do not endorse each other and are not affiliated.
• 38:41
  Speaker 1: Summer in New England is spectacular. Winter in the US
• 38:44
  Speaker 1: Virgin Islands is even better. Saint Croix, Saint Thomas and
• 38:48
  Speaker 1: Saint John are three of the most incredible islands anywhere
• 38:51
  Speaker 1: in the Caribbean, and their popularity has soared over the
• 38:53
  Speaker 1: past three years. If you're ready for your next fabulous vacation,
• 38:57
  Speaker 1: now's the time to check out the American Caribbean. Go
• 39:00
  Speaker 1: to visit USVII dot com, where you'll find all the
• 39:03
  Speaker 1: information you need to book a trip that you'll never forget.
• 39:06
  Speaker 1: The Saint Croix Crucian Festival runs from December twenty sixth
• 39:09
  Speaker 1: to January fourth. Celebrate New Years on Saint Croix and
• 39:13
  Speaker 1: enjoy world class cuisine, Christine Beaches, a wide variety of
• 39:17
  Speaker 1: water sports, and some of the greatest musical acts the
• 39:19
  Speaker 1: Islands have to offer. Travel to and from New England
• 39:22
  Speaker 1: is simple and your state will be hassle free. Because
• 39:25
  Speaker 1: this is the American Caribbean. There's no passport needed and
• 39:28
  Speaker 1: no money to exchange. America's Caribbean paradise is waiting for you.
• 39:33
  Speaker 1: Go to visit USVII dot com and make your plans
• 39:36
  Speaker 1: today that to visit USVII dot com.
• 39:40
  Speaker 5: Recent reports suggest that a record four point one million
• 39:44
  Speaker 5: Americans may retire this year alone.
• 39:45
  Speaker 6: Hi.
• 39:46
  Speaker 5: This is Mike Armstrong from the Armstrong Advisory Group, and
• 39:48
  Speaker 5: if you're one of them, you'll want to have a
• 39:50
  Speaker 5: retirement plan in place that focuses on several objectives. When
• 39:54
  Speaker 5: to actually retire is a very important one to consider.
• 39:56
  Speaker 5: Retiring early, while giving you more time to enjoy life
• 39:59
  Speaker 5: after work, also means you'll need your money to last longer.
• 40:03
  Speaker 5: Retiring later may not give you as much time to
• 40:05
  Speaker 5: enjoy life's pleasures, but you'll have more time to save money.
• 40:08
  Speaker 5: It's important for your retirement plan to strike a reasonable balance,
• 40:12
  Speaker 5: and our new guide may help. It's called a Day
• 40:14
  Speaker 5: in the Life of a Retiree and it's yours free
• 40:16
  Speaker 5: by calling eight hundred three nine three four zero zero one.
• 40:19
  Speaker 5: The guide discusses these issues and more. So please call
• 40:22
  Speaker 5: eight hundred three nine three four zero zero one once
• 40:25
  Speaker 5: again eight hundred thirty nine three four zero zero one.
• 40:28
  Speaker 1: The proceeding was paid for by Armstrong Advisory Group, a
• 40:30
  Speaker 1: registered investment advisor. Nothing in the ad or in any
• 40:32
  Speaker 1: Armstrong guide a specific financial, legal or tax advice. Consult
• 40:35
  Speaker 1: your own financial, tax and to state planning advisors before
• 40:37
  Speaker 1: making any investment decisions. Armstrong make contact you to offer
• 40:39
  Speaker 1: investment advisory services. Your tune to the Legal Exchange with
• 40:43
  Speaker 1: Todd Lutsky. If you are a loved one needs a
• 40:46
  Speaker 1: nursing homestay, call Todd right now at eight sixty six
• 40:49
  Speaker 1: eight four eight five six nine nine and let him
• 40:51
  Speaker 1: make sure your assets are protected. That's eight six six
• 40:54
  Speaker 1: eight four eight five six nine nine, or visit him
• 40:56
  Speaker 1: online at Legal Exchange Show dot Com.
• 41:01
  Speaker 2: Welcome back into the Legal Exchange with Todd Lutsky. I'm
• 41:05
  Speaker 2: Susan Powers, a financial advisor with the Armstrong Advisory Group,
• 41:08
  Speaker 2: and I'm joined, of course by Todd Lutsky, a partner
• 41:11
  Speaker 2: with the law firm of Cushing and Dolan with a
• 41:13
  Speaker 2: master's in taxation. Todd, we're talking this month about the
• 41:20
  Speaker 2: Medicaid irrevocable trusts. Yes, And one thing that we don't
• 41:24
  Speaker 2: cover a lot, I think and can be very confusing
• 41:28
  Speaker 2: for people is life insurance.
• 41:31
  Speaker 3: Yeah.
• 41:31
  Speaker 2: So let's say you have an irrevocable trust that you've
• 41:34
  Speaker 2: created and you need to put your life insurance in it.
• 41:40
  Speaker 2: How do you go about doing that?
• 41:41
  Speaker 3: Do you do that?
• 41:42
  Speaker 2: Do you change the ownership, do you change the beneficiary?
• 41:46
  Speaker 2: What do you do?
• 41:47
  Speaker 3: Or do you transfer it at all? Right, it's probably
• 41:49
  Speaker 3: the bigger question, and that's really the key here, folks.
• 41:52
  Speaker 3: So when we're doing these medicaid plans for people, you
• 41:58
  Speaker 3: got to think about what can go in the true
• 42:00
  Speaker 3: trust and what cannot. If you have term life insurance,
• 42:07
  Speaker 3: it cannot go in the trust. Why Because if you
• 42:11
  Speaker 3: change the owner to the trust and you make a
• 42:13
  Speaker 3: premium payment every year, you are creating a new five
• 42:18
  Speaker 3: year waiting period. Every time you pay a premium on
• 42:20
  Speaker 3: a policy you don't own. That's a gift, So that
• 42:25
  Speaker 3: doesn't work. If you have a whole life policy that
• 42:30
  Speaker 3: is not paid up, you cannot change the owner to
• 42:34
  Speaker 3: the trust. Again, same reason, same reason. If you have
• 42:38
  Speaker 3: a paid up policy, you could put that in the
• 42:42
  Speaker 3: trust because you don't have to make any more premium payments,
• 42:45
  Speaker 3: So you could change the owner and the beneficiary to
• 42:48
  Speaker 3: the trust. Once it's in there, five years goes by,
• 42:52
  Speaker 3: that death benefit is protected from there, which is great
• 42:57
  Speaker 3: or the cash when it pays out. Right, If you
• 43:02
  Speaker 3: have a policy that is not paid up, but you
• 43:08
  Speaker 3: are putting a million dollars investment portfolio in the trust
• 43:13
  Speaker 3: or half a million investment portfolio in the trust, well,
• 43:17
  Speaker 3: now the trust has the money it needs to pay
• 43:20
  Speaker 3: the premium. So as long as you have enough money
• 43:25
  Speaker 3: in the trust to pay the premium, well then you
• 43:29
  Speaker 3: can change the owner and the beneficiary to the trust.
• 43:33
  Speaker 3: But just make sure that the premium is paid out
• 43:36
  Speaker 3: of the trust trust account. Okay, so that would be
• 43:40
  Speaker 3: sort of the approach there. Yeah. Now, having said that,
• 43:45
  Speaker 3: most of the time, life insurance is not going in
• 43:49
  Speaker 3: to these irrevocable trusts for the reasons I said, So
• 43:52
  Speaker 3: how do we protect it? What do we do with it?
• 43:56
  Speaker 3: We don't change the owner, but we do change the
• 44:03
  Speaker 3: beneficiary to who, not to the spouse, not to the trust,
• 44:09
  Speaker 3: but to the estate of the owner of the policy.
• 44:16
  Speaker 3: But wait a minute, Todd, isn't that going to create
• 44:18
  Speaker 3: a probate problem. Yes, but it's only one asset. Well,
• 44:23
  Speaker 3: why am I doing that? You only do that if
• 44:26
  Speaker 3: you combine it with the will that you're doing for
• 44:28
  Speaker 3: the person. You put a testamentary trust in the will,
• 44:34
  Speaker 3: so that now the money flows through the probate into
• 44:38
  Speaker 3: the will and then from the will into the testamentary
• 44:41
  Speaker 3: trust for the benefit of the surviving spouse.
• 44:45
  Speaker 2: And why do you do that rather than just have it?
• 44:48
  Speaker 3: So, now, let's say there's half a million dollars sitting
• 44:51
  Speaker 3: in this. We'll call it a remainder share inside the
• 44:56
  Speaker 3: testamentary trust inside the will. Well, now it is it's
• 45:00
  Speaker 3: sheltered from future estate taxation. When the spouse dies, does
• 45:05
  Speaker 3: spouse has the right to the income and the principle
• 45:08
  Speaker 3: from the trust and the trustees discretion so she can
• 45:12
  Speaker 3: get it all. And it's immediately protected from the nursing home.
• 45:17
  Speaker 3: No five year waiting period in case the surviving spouse
• 45:21
  Speaker 3: gets sick a day later, a month later, a year later.
• 45:25
  Speaker 3: Now that money will be left for the children, tax
• 45:28
  Speaker 3: free and protected from the nursing home. Folks, that is
• 45:33
  Speaker 3: how you probably ought to always do your Why can't
• 45:36
  Speaker 3: they always need that language, but you need the testimentary
• 45:39
  Speaker 3: trust language to accommodate that, So don't do it if
• 45:42
  Speaker 3: you're not going to have the testamentary trust coupled with
• 45:45
  Speaker 3: the overall estate plan that you're doing. So great question,
• 45:49
  Speaker 3: very complicated answer, but at the end of the day,
• 45:53
  Speaker 3: it really is a great way of protecting sometimes an
• 45:58
  Speaker 3: asset that can't be protected in advance. It really does
• 46:02
  Speaker 3: provide some some awesome benefits. So hope that helps, folks.
• 46:06
  Speaker 3: But meantime, there are many assets that can go in
• 46:10
  Speaker 3: to this Medicaid irrevocable trust. The guide Unlocking the Power
• 46:14
  Speaker 3: of Medicaid Irrevocable Trusts will tell you what can go in.
• 46:18
  Speaker 3: It will give you the question and answer format of
• 46:21
  Speaker 3: the dos and don'ts for you. So if you've ever
• 46:25
  Speaker 3: wondered whether these irrevocable trusts are right for you and
• 46:29
  Speaker 3: whether you can stomach how they operate. Get this guide
• 46:32
  Speaker 3: because it will enlighten you. It will tell you whether
• 46:36
  Speaker 3: it's right for you or not, as well as give
• 46:38
  Speaker 3: you all the tax reasons to do it. Eight six
• 46:41
  Speaker 3: six eight four eight five six nine nine or Legal
• 46:45
  Speaker 3: Exchange Show dot Com. End of the Month, Folks Last
• 46:49
  Speaker 3: Chance eight six six eight four eight five six nine
• 46:53
  Speaker 3: nine or Legal Exchange Show dot Com.
• 46:56
  Speaker 2: I'm going to finish up this segment Todd with a
• 46:59
  Speaker 2: question that I read from a listener. He created a
• 47:03
  Speaker 2: trust with you in two thousand and eight, okay, but
• 47:06
  Speaker 2: he never funded it, and he's sent in saying that's
• 47:09
  Speaker 2: why I'd like to fund it, but I'd also like
• 47:11
  Speaker 2: to make some changes because my life has changed and
• 47:13
  Speaker 2: I don't want to end up as one of your
• 47:15
  Speaker 2: real life stories.
• 47:17
  Speaker 3: Sounds like you're already there.
• 47:18
  Speaker 2: Yeah, So two thousand and eight, it was created, never funded,
• 47:22
  Speaker 2: Is it all for not? Does he have to start over?
• 47:24
  Speaker 2: Have things changed since then?
• 47:26
  Speaker 3: So I say, you know you're already there. You're you're there? Really,
• 47:30
  Speaker 3: I'm going to say, partly through no fault of your own,
• 47:32
  Speaker 3: because I feel like if you went through a lawyer
• 47:35
  Speaker 3: to get this done, there probably should have been some
• 47:37
  Speaker 3: funding done. Yeah, by the lawyer on the lawyer's part. Now,
• 47:40
  Speaker 3: sometimes I can't move all the money. I get it,
• 47:43
  Speaker 3: but if there is real estate, they probably could have
• 47:45
  Speaker 3: at least moved that. So I don't know what you own,
• 47:48
  Speaker 3: but I'm assuming you have property in Yarmouth, so you
• 47:52
  Speaker 3: probably have a house on the cape and you have stuff,
• 47:54
  Speaker 3: So you know, is it all for not? No, it's
• 47:58
  Speaker 3: not all for not thousand and eight trust language should
• 48:02
  Speaker 3: still work. Again, I'm assuming it's drafted properly and that
• 48:06
  Speaker 3: it's an actual Medicaid irrevocable type trust. Again, we don't
• 48:11
  Speaker 3: know that, Gary, but you might want to have someone
• 48:14
  Speaker 3: look at it if you're a little worried about that.
• 48:16
  Speaker 3: But let's assume it is. Yeah, it's not too late.
• 48:19
  Speaker 3: Good news is you wasted well, bad news is you
• 48:22
  Speaker 3: wasted five years. Good news is you didn't die and
• 48:26
  Speaker 3: you didn't go to the nursing home. So I don't
• 48:28
  Speaker 3: know how old you are now. But take the assets
• 48:31
  Speaker 3: that you want to protect and move them in the trust.
• 48:34
  Speaker 3: Now you don't have to start over with the planning.
• 48:37
  Speaker 3: Perhaps the planning might be perfect, but take the deed,
• 48:42
  Speaker 3: transfer the house into the trust, check to see if
• 48:45
  Speaker 3: there's a mortgage on it. If so, reserve a life estate,
• 48:48
  Speaker 3: and then look at your money, however much money you
• 48:50
  Speaker 3: decide you'd like to put in there up to you
• 48:53
  Speaker 3: put it in, get that invested, get the five year
• 48:56
  Speaker 3: clock started. But before you do all of that, you said,
• 48:59
  Speaker 3: there needs to be some changes.
• 49:01
  Speaker 2: Right, So it's been I mean, it's been sixteen years
• 49:05
  Speaker 2: since he created this trust. So if that attorney's no
• 49:09
  Speaker 2: longer practicing, can he get another attorney to amend that
• 49:14
  Speaker 2: trust or is that not typically done?
• 49:18
  Speaker 3: Well? I would say you probably could. The ability to
• 49:22
  Speaker 3: amend that trust is based on the language in that trust.
• 49:26
  Speaker 3: If that trust offers what we call a limited power
• 49:30
  Speaker 3: of appointment, which is a fancy word to say that
• 49:33
  Speaker 3: you can change an irrevocable trust's disposition, meaning just positive
• 49:38
  Speaker 3: provision how you leave your stuff. Limited, that's in the
• 49:44
  Speaker 3: term right, limited to a class of people that was
• 49:47
  Speaker 3: defined in that trust. So if you're saying you've got
• 49:52
  Speaker 3: children and grandchildren and maybe now more grandchildren than you
• 49:55
  Speaker 3: had before, and you want to leave a little more
• 49:58
  Speaker 3: to the grandchildren than you were before, and you have
• 50:01
  Speaker 3: a limited power of appointment, then yes, you can change
• 50:04
  Speaker 3: this existing trust and make it that way, and again
• 50:10
  Speaker 3: some other attorney should be able to do that.
• 50:12
  Speaker 2: Hmm.
• 50:13
  Speaker 3: Okay, but just remember overall that since nothing was put
• 50:17
  Speaker 3: in it, you could start over. You could just do
• 50:20
  Speaker 3: a whole new trust. Do it anyway you want, six
• 50:22
  Speaker 3: ways to Sunday and it's okay too. Yeah. So there
• 50:25
  Speaker 3: you go, folks, a little bit more about how these
• 50:28
  Speaker 3: irrevocable trusts work. But to get the real skinny on
• 50:32
  Speaker 3: these trusts, call and get the guide eight six six
• 50:36
  Speaker 3: eight four eight five six nine to nine or Legal
• 50:40
  Speaker 3: Exchange show dot com. It's the end of the month, folks.
• 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.
• 50:50
  Speaker 2: I'm Susan Power as a financial advisor with the Armstrong
• 50:53
  Speaker 2: Advisory Group. We thank you for joining us today and
• 50:55
  Speaker 2: we'll be back again next week on the Legal Exchange
• 50:58
  Speaker 2: with Todd Lutski.
• 51:00
  Speaker 1: Elder life planning can be overwhelming, so make sure you're
• 51:03
  Speaker 1: prepared or you could make costly mistakes that affect your
• 51:06
  Speaker 1: overall plan. Irrevocable trusts are the most common type of
• 51:10
  Speaker 1: trust that folks use for financial protection, and while they
• 51:13
  Speaker 1: can be complicated to create, they help keep your assets
• 51:16
  Speaker 1: safe because they contain specific protections that many of us need,
• 51:19
  Speaker 1: like the possibility of eliminating your estate taxes. Cushing and
• 51:23
  Speaker 1: Dolan are experts in elder lawn taxation and they can
• 51:26
  Speaker 1: devise a plan that covers you in every area where
• 51:28
  Speaker 1: issues can rise. Their new guide is called Unlocking the
• 51:32
  Speaker 1: Power of Irrevocable Medicaid Trusts. Learn more about how these
• 51:35
  Speaker 1: trusts can benefit your family by calling eight sixty six
• 51:38
  Speaker 1: eight four eight five six ninety nine right now. That's
• 51:41
  Speaker 1: eight sixty six eight four eight five six nine nine,
• 51:44
  Speaker 1: or you can request the guide right now by visiting
• 51:47
  Speaker 1: Legal exchange show dot com. The proceeding was paid for
• 51:50
  Speaker 1: and the views expressed are solely those of Cushing and Dolin.
• 51:52
  Speaker 1: Cushing and Dolent and or Armstrong Advisory may contact you
• 51:55
  Speaker 1: offering legal or investment services. Cushing and Dolan and Armstrong
• 51:57
  Speaker 1: Advisory do not endorse each other and are not a fife.
• 52:00
  Speaker 6: When you stop working, you stop earning a paycheck, and
• 52:03
  Speaker 6: if you don't have a good sense of what your
• 52:04
  Speaker 6: plans are in retirement, you may be faced with some
• 52:07
  Speaker 6: financial challenges Hi. This is Chuck Zada from the Armstrong
• 52:10
  Speaker 6: Advisory Group. In order to retire comfortably without that financial strain,
• 52:14
  Speaker 6: you can either reduce your expenses or find ways to
• 52:17
  Speaker 6: replace your pre retirement income so that you can determine
• 52:20
  Speaker 6: the kind of retirement lifestyle you can afford. Our new
• 52:22
  Speaker 6: guide this month is called a Day in the Life
• 52:24
  Speaker 6: of a Retiree, and you can get it right now
• 52:27
  Speaker 6: by calling eight hundred three nine three for zero zero one.
• 52:30
  Speaker 6: In it will walk you through several considerations you'll need
• 52:33
  Speaker 6: to keep in mind as you develop your retirement plan.
• 52:36
  Speaker 6: Get your copy of this brand new guide today by
• 52:39
  Speaker 6: calling eight hundred three nine three for zero zero one.
• 52:42
  Speaker 6: That's eight hundred three nine three four zero zero one.
• 52:45
  Speaker 1: The proceeding was paid for by Armstrong Advisory Group, a
• 52:48
  Speaker 1: registered investment advisor. Nothing in the ad or in any
• 52:50
  Speaker 1: Armstrong Guide a specific financial, legal or tax advice. Consult
• 52:53
  Speaker 1: your own financial, tax into state planning advisors before making
• 52:56
  Speaker 1: any investment decisions. Armstrong may contact you to offer investment
• 52:59
  Speaker 1: advisory service. Summer in New England is spectacular. Winter in
• 53:04
  Speaker 1: the US Virgin Islands is even better. Saint Croix, Saint
• 53:07
  Speaker 1: Thomas and Saint John are three of the most incredible
• 53:09
  Speaker 1: islands anywhere in the Caribbean, and their popularity has soared
• 53:13
  Speaker 1: over the past three years. If you're ready for your
• 53:15
  Speaker 1: next fabulous vacation, now's the time to check out the
• 53:18
  Speaker 1: American Caribbean. Go to visit USVII dot com, where you'll
• 53:22
  Speaker 1: find all the information you need to book a trip
• 53:24
  Speaker 1: that you'll never forget. The Saint Croix Crucian Festival runs
• 53:28
  Speaker 1: from December twenty sixth to January fourth. Celebrate New Years
• 53:31
  Speaker 1: on Saint Croix and enjoy world class cuisine, Christine Beaches,
• 53:35
  Speaker 1: a wide variety of water sports, and some of the
• 53:38
  Speaker 1: greatest musical acts the islands have to offer. Travel to
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  Speaker 1: and from New England is simple and your state will
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  Speaker 1: be hassle free. Because this is the American Caribbean. There's
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  Speaker 1: no passport needed and no money to exchange. America's Caribbean
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  Speaker 1: paradise is waiting for you. Go to visit USVII dot
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  Speaker 1: com and make your plans today that visit USVII dot
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  Speaker 1: com