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Avoiding the probate nightmare · The Legal Exchange

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  Speaker 1: This is the Legal Exchange with Todd Lutsky from the
• 0:04
  Speaker 1: law firm of Cushing and Dolan and Susan Powers of
• 0:07
  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,
• 0:13
  Speaker 1: and protecting your money from a nursing home. If you
• 0:16
  Speaker 1: need assistance in any of these areas, or have a
• 0:18
  Speaker 1: question about another issue that may affect your future, call
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  Speaker 1: eight six six eight four eight five six ninety nine
• 0:24
  Speaker 1: to make an appointment. That's eight sixty six eight four
• 0:27
  Speaker 1: eight five six ninety nine. Operators are standing by. Now
• 0:31
  Speaker 1: Here are your hosts, Todd Lutsky and Susan Powers.
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  Speaker 2: Welcome into legal exchange with Todd Lutsky. I'm Susan Powers
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  Speaker 2: of Financial Advice with the Armstrong Advisory Group and I'm
• 0:44
  Speaker 2: joined by Todd Lutsky, a partner with the law firm
• 0:46
  Speaker 2: of Cushing and Dolan with a master's in taxation. Welcome Todd.
• 0:51
  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. Thanks? What do you have for us this week?
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  Speaker 3: Couple of things. Got a Tennessee Appellate Court case dealing
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  Speaker 3: with undue influence and the failure to prosecute someone who
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  Speaker 3: thought that they would bring an action to pursue a
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  Speaker 3: will that was preparently produced with undue influence, and an
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  Speaker 3: older will should have been used but didn't really complete
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  Speaker 3: the process. So Procrastinator, we'll see how that plays out
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  Speaker 3: for you, and we'll learn a lot about planning in
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  Speaker 3: this case as well, and what not to do here.
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  Speaker 3: And then we're gonna head over to Nebraska where we
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  Speaker 3: actually have a Supreme Court case dealing with you know,
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  Speaker 3: it's really the probate process. There was another will situation
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  Speaker 3: and you know what they had to do, and I'm
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  Speaker 3: really going to guide you through this probate process. I
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  Speaker 3: think we're going to The most thing we're going to
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  Speaker 3: learn from this is how the probate process works, because
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  Speaker 3: I can't tell you how many people keep asking me
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  Speaker 3: when I say, Okay, we're here to do planning and
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  Speaker 3: we'd like to avoid probate, and they say, oh, what
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  Speaker 3: is a probate? Yes, I want to avoid it, but
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  Speaker 3: so like yeah, So we will explain that to you, folks.
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  Speaker 3: We do have a couple of interesting cases to get through,
• 2:03
  Speaker 3: but before we do, we are basically at the end
• 2:06
  Speaker 3: of the month, and it's the last chance to get
• 2:08
  Speaker 3: this guide. It's the one that deals with people who
• 2:11
  Speaker 3: perhaps haven't done a lot of sophisticated planning, but think
• 2:14
  Speaker 3: throwing their house into a life estate is a state planning. Well,
• 2:18
  Speaker 3: it really isn't. And if you've done one, learn how
• 2:21
  Speaker 3: to undo it. And if you haven't done one and
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  Speaker 3: you're thinking about doing it, get this guide. It explains
• 2:26
  Speaker 3: the pros, the cons, the taxes, the loss of control,
• 2:30
  Speaker 3: et cetera that go along with life estate arrangements. Last
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  Speaker 3: chance to get it eight six six eight four eight
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  Speaker 3: five six nine nine or Legal Exchange Show dot com
• 2:43
  Speaker 3: again eight six six eight four eight five six nine
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  Speaker 3: nine or Legal Exchange Show dot Com. Let's head over
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  Speaker 3: to Tennessee. So here's the case. Gloria had died in
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  Speaker 3: August of twenty nineteen, so two weeks later, that's pretty quick.
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  Speaker 3: The stepdaughter red flag number one, stepdaughter Melissa submitted the
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  Speaker 3: will dated January twenty fifteen to proby. Okay, well that
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  Speaker 3: wasn't close in time to twenty nineteen, so that seems
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  Speaker 3: all right. Two years later, August twenty twenty one, Gloria's
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  Speaker 3: stepson Mike, another red flag, so it seems like we've
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  Speaker 3: got a stepdaughter and a step son here, so I'm
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  Speaker 3: not sure there's any children, right for biological Biological doesn't
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  Speaker 3: mean these kids aren't like her kids. Steps On, Mike
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  Speaker 3: files a complaint to contest the validity of the will Gloria.
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  Speaker 3: They're saying that Gloria was unduly influenced to replace the
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  Speaker 3: old prior will from nineteen eighty one. That was a
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  Speaker 3: long time ago.
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  Speaker 2: Oh that's probably current, but.
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  Speaker 3: Again doesn't mean it's not good. Right. And interestingly enough,
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  Speaker 3: the person who's bringing this action, the step son bringing
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  Speaker 3: the action saying the nineteen eighty one will should be honored,
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  Speaker 3: actually names himself as one hundred percent beneficiary. Oh in
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  Speaker 3: that will.
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  Speaker 2: Fancy that?
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  Speaker 3: Yeah, fancy that. So he did not attach a copy
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  Speaker 3: of this alleged will, and he did nothing other than
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  Speaker 3: in twenty twenty one and twenty twenty two. In August,
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  Speaker 3: he tried to provide some kind of service of process
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  Speaker 3: to Melissa and then took no further action. Fast forward
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  Speaker 3: to October twenty twenty three, and Melissa basically says moves
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  Speaker 3: the court to dismiss because of failure to provide service
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  Speaker 3: of process, and there wasn't a render. It was all
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  Speaker 3: done untimely.
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  Speaker 2: So she died in twenty nineteen.
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  Speaker 3: Twenty nineteen, and we're up to twenty twenty three.
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  Speaker 2: Okay, four years later. But he waited two years to file.
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  Speaker 3: He waited two years to file. Mike argued, it's premature
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  Speaker 3: to be dismissed in this case because discovery is not
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  Speaker 3: yet complete. Well, the trial court dismissed the case, saying
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  Speaker 3: that this is not moving forward discovery process. You failed
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  Speaker 3: to file proof of service of process in two years,
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  Speaker 3: and you're just done. Well. Mike appealed, and he tried
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  Speaker 3: to argue that the trial court abused its discretion in
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  Speaker 3: denying the case and dismissing the case. Rather, the appellate
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  Speaker 3: court affirmed the trial court and basically stated, look, nothing
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  Speaker 3: was done. There was no proof of contents of the will.
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  Speaker 3: There was no you had no separate You never proved
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  Speaker 3: your separate service of process. There has been no separate
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  Speaker 3: proceedings filed to establish the validity.
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  Speaker 4: Of the will.
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  Speaker 3: You basically just have done nothing.
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  Speaker 2: Yes, snooze, you lose, Mikey.
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  Speaker 3: And so you're out. But in reality, I mean, who's
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  Speaker 3: the bad guy here? I don't really know, and I
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  Speaker 3: think it might have been Mike, because now Mike is
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  Speaker 3: trying to put together a will that says he's a
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  Speaker 3: hunter beneficiary, which was done in nineteen eighty one. Now, remember, folks,
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  Speaker 3: let's just define undue influence. Let's see what we can
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  Speaker 3: learn here. Undue influence is usually when somebody brings somebody
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  Speaker 3: else to the lawyer, basically helps them tell the lawyer
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  Speaker 3: what's going on, and at the end of the day,
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  Speaker 3: they get a new will or a new estate plan,
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  Speaker 3: and the person who was very proactively involved in getting
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  Speaker 3: that estate plan done benefits. That's really the definition of
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  Speaker 3: undue influence. Well, in this case, the step daughter is
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  Speaker 3: bringing a will that I suspect was probably equally to
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  Speaker 3: all the kids. Sure, that's probably what it said. And
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  Speaker 3: the person trying to say that the equally to the
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  Speaker 3: kid's will was procured by undue influence is the one
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  Speaker 3: saying that there's a will that existed before in which
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  Speaker 3: he got he's a little bitter percent of everything. So
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  Speaker 3: I'm wondering if maybe he actually procured the nineteen eighty
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  Speaker 3: one will with undue influence to get himself one hundred
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  Speaker 3: percent beneficiary, and now he's trying to do an end
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  Speaker 3: around to what he actually did. I'm sure there was
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  Speaker 3: no counterclaim filed here, but boy, that's what I'd be
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  Speaker 3: thinking if I was on the other side.
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  Speaker 2: Yeah, it doesn't smell right.
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  Speaker 3: So, but that's just about what undue influence is, folks.
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  Speaker 3: But just again, what else can we learn from this?
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  Speaker 4: Right?
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  Speaker 3: It just seems to me like this was a second
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  Speaker 3: marriage situation. Right, she had step kids. Now, it doesn't
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  Speaker 3: mean that. It sounds like that she's been with him
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  Speaker 3: a long time. If there was a nineteen eighty one will,
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  Speaker 3: So to me, they probably were like her own kids, yure, Right,
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  Speaker 3: And then so that's fine. If she didn't have any
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  Speaker 3: of the kids and she kind of raised these kids,
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  Speaker 3: they're like her kids. So if so, then please plan
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  Speaker 3: with more than a will. Right, you would have been
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  Speaker 3: much better off than this. You wouldn't have had to
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  Speaker 3: go to probate, you wouldn't have had all these problems.
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  Speaker 3: Now note remember drafting here. You got to be careful
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  Speaker 3: when you're drafting in a second marriage. So first of all,
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  Speaker 3: they should have done more planning. These kids are stepkids.
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  Speaker 3: So if you're gonna do planning, you're gonna have to
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  Speaker 3: define the step kids as children, because we usually say
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  Speaker 3: equally to kids issue descendants. These are terms of art
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  Speaker 3: that define basically children, grandchildren, great great grandchildren, et cetera.
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  Speaker 3: Notice what they don't define step kids. They would not
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  Speaker 3: fit into that drafting definition. So please be careful to
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  Speaker 3: list them specifically if you want them to be included
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  Speaker 3: when you do your drafting. If you're in a second
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  Speaker 3: marriage situation like this person was, or.
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  Speaker 2: Any situation if you don't have your own biological children,
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  Speaker 2: you can leave your money to whoever you want.
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  Speaker 4: That's good.
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  Speaker 2: You got to have the plan.
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  Speaker 3: Yes, that's absolutely right. You can certainly do that. You
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  Speaker 3: got to list them, and so in this case, remember
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  Speaker 3: also the flip side is if you've actually adopted these kids,
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  Speaker 3: or if your kids married somebody that had kids and
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  Speaker 3: they adopted those kids, those grandkids. Adopted kids are generally
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  Speaker 3: included in the class of child children issue.
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  Speaker 2: They're in by default unless you exclude them.
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  Speaker 3: Unless you exclude them, so they would be in by default.
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  Speaker 3: So then you write Susan. The flip side of that
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  Speaker 3: is you have to bring up the side, do I
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  Speaker 3: want to actually treat them as my kids because they're
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  Speaker 3: adopted kids right because your kid adopted some kid, so
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  Speaker 3: that might not have the same feeling for you. So
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  Speaker 3: last lesson, always remember I think you should do more
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  Speaker 3: than a will, because, as we know, a will is
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  Speaker 3: really a won't right. It doesn't reduce the state taxes,
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  Speaker 3: it doesn't help protect assets from a nursing home and
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  Speaker 3: so forth. But at least in this case doing doing
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  Speaker 3: the will at least preserved her ability to direct where
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  Speaker 3: the assets went, so at least they got that. Folks
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  Speaker 3: do planning, do more than just a will, and do
• 10:06
  Speaker 3: more than just a life estate with your real estate.
• 10:09
  Speaker 3: There's so many pros and cons that go with life estates.
• 10:12
  Speaker 3: Get the guides the End of the Month eight six
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  Speaker 3: six eight four eight five six nine nine or Legal
• 10:19
  Speaker 3: Exchange show dot com.
• 10:20
  Speaker 2: You've been listening to Todd Lutsky, a partner with the
• 10:23
  Speaker 2: law firm of Cushing and Dolan. I'm Susan Powers, a
• 10:26
  Speaker 2: financial advisor with the Armstrong Advisory Group. We've got much
• 10:29
  Speaker 2: more to come when we return to the Legal Exchange
• 10:32
  Speaker 2: with Todd Lutsky.
• 10:34
  Speaker 1: Life estates carry a higher risk of income tax penalties
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• 11:01
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  Speaker 1: You're listening to the Legal Exchange with Todd Lutsky, an
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  Speaker 1: expert in elder life planning and taxation. Need help with
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  Speaker 1: Eight six six eight four eight five six ninety nine.
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  Speaker 1: That's eight sixty six eight four eight five six ninety nine.
• 13:52
  Speaker 2: Welcome back into the Legal Exchange with Toddltsky. I'm Susan Powers,
• 13:57
  Speaker 2: a financial advisor with the Armstrong Advisory Group, and I'm
• 14:00
  Speaker 2: joined by Todd Letsky, a partner with the law firm
• 14:02
  Speaker 2: of Cushing and Dolan with a masters in taxation. Where
• 14:06
  Speaker 2: we headed now, Todd.
• 14:07
  Speaker 3: We're going to head over to Nebraska. We got a
• 14:11
  Speaker 3: Supreme Court case there. It's like the Super Bowl. It's
• 14:15
  Speaker 3: a probate situation, right, let's just play out the string.
• 14:18
  Speaker 3: So damon, he's appointed pr of what of Ray Junior's estate?
• 14:25
  Speaker 3: Ray Junior died intestate without a will yeap and father
• 14:31
  Speaker 3: Ray was his only heir. So Damon files a petition
• 14:36
  Speaker 3: for complete settlement of the estate, in which he claimed
• 14:40
  Speaker 3: he collected all the assets, he paid all of the bills,
• 14:45
  Speaker 3: and all the claims against the estate, and then rightfully
• 14:49
  Speaker 3: requested that all the remaining assets of the estate be
• 14:53
  Speaker 3: distributed to Ray Senior. No, the petition did not include
• 14:58
  Speaker 3: a request for payment of Damon's personal representative fees. The
• 15:04
  Speaker 3: final accounting of the estate also did not include personal
• 15:08
  Speaker 3: representative fee request as an expense of the estate. In
• 15:13
  Speaker 3: October of twenty twenty two, the County Court issued an
• 15:18
  Speaker 3: order of complete settlement of the probatea state done. Four
• 15:24
  Speaker 3: months later, he filed a motion to direct that he
• 15:28
  Speaker 3: be paid for his services as personal representative. Ray Senior's
• 15:34
  Speaker 3: durable power of attorney objected. So now that tells me
• 15:39
  Speaker 3: that Ray Senior is not perhaps competent. So Ray Senior's
• 15:44
  Speaker 3: power of attorney objects as it was not filed timely.
• 15:50
  Speaker 3: The court agreed a complete settlement was filed and appealable
• 15:55
  Speaker 3: within thirty days. Therefore, you're late. You waited four months.
• 16:02
  Speaker 3: The Supreme Court just had to go to the Supreme Court.
• 16:05
  Speaker 3: It's crazy dismiss the appeal for lack of jurisdiction, basically
• 16:10
  Speaker 3: saying it was a final order, ye, a complete settlement,
• 16:14
  Speaker 3: a request for claim for the pr fees was never
• 16:17
  Speaker 3: asked for, and all the assets had been distributed out,
• 16:22
  Speaker 3: and therefore you were not timely appealed. And it's not
• 16:25
  Speaker 3: an appealable it's not even a reviewable case. So they
• 16:28
  Speaker 3: dismissed it.
• 16:29
  Speaker 2: So damon. In this case, he's not related to Ray.
• 16:32
  Speaker 2: He just performed this. You think he's an attorney.
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  Speaker 3: I don't know.
• 16:35
  Speaker 2: You're right to file a bill.
• 16:37
  Speaker 3: You're right. I don't think this is Yeah, I don't
• 16:40
  Speaker 3: think this is a related party. I think you're right.
• 16:43
  Speaker 2: I feel like he does this for a living.
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  Speaker 3: Yeah, he should know. Batter should know better than to
• 16:47
  Speaker 3: not ask for a fee of some sort, which, by
• 16:51
  Speaker 3: the way, he's entitled to. Sure, it's not that you're
• 16:54
  Speaker 3: not allowed to get it. But you see this case,
• 16:57
  Speaker 3: you're probably wondering, what are we going to learn about? Well,
• 16:59
  Speaker 3: I think this is a great case just to discuss
• 17:01
  Speaker 3: this whole probate process, because so many people say what
• 17:06
  Speaker 3: is probate.
• 17:07
  Speaker 2: Probate is a financial root canal.
• 17:10
  Speaker 3: Yeah, that's a good way of doing it. And then
• 17:12
  Speaker 3: let's leave it with that thought. Yeah, I'm going to
• 17:14
  Speaker 3: come back to that and I'm going to explain what
• 17:16
  Speaker 3: probate is. But first, just want to remind everybody that
• 17:18
  Speaker 3: it is the end of the month and it is
• 17:20
  Speaker 3: the last chance to get your guide regarding the pros
• 17:24
  Speaker 3: and calculating the consequences of a life estate. Usually people
• 17:28
  Speaker 3: do these when they want to do something quick and
• 17:30
  Speaker 3: cheap and they think it's a way to go. But
• 17:32
  Speaker 3: there are income tax consequences, there are gift tax consequences.
• 17:37
  Speaker 3: More importantly than that. I actually met a client the
• 17:39
  Speaker 3: other day who had done a life estate and put
• 17:42
  Speaker 3: that in the name of the three kids, and she
• 17:44
  Speaker 3: wanted to undo it so she could sell it and
• 17:46
  Speaker 3: get money to live on. One of the kids doesn't
• 17:48
  Speaker 3: want to give it back. That's just one of the
• 17:50
  Speaker 3: examples of loss of control. Folks, get the guide. It's
• 17:53
  Speaker 3: the end of the month. Calculating the consequences of a
• 17:56
  Speaker 3: life estate eight six six eight four eight five six
• 18:01
  Speaker 3: nine nine or Legal Exchange Show dot com again eight
• 18:04
  Speaker 3: six six eight four eight five six nine nine or
• 18:08
  Speaker 3: Legal Exchange Show dot com.
• 18:10
  Speaker 2: So Todd, in this case, you're talking about probate and
• 18:13
  Speaker 2: why you.
• 18:14
  Speaker 3: Don't want it.
• 18:15
  Speaker 2: Yeah, even if there were no complications like this and
• 18:20
  Speaker 2: everything ran smoothly, it's a process. It's a process, and
• 18:24
  Speaker 2: it's a process that you pay for hourly. That's really
• 18:28
  Speaker 2: for the attorneys, right.
• 18:30
  Speaker 3: I think what you're driving at, Susan is it's not
• 18:32
  Speaker 3: the probate filing fees that you have to write a
• 18:35
  Speaker 3: check to the court for those are in the hundreds
• 18:37
  Speaker 3: of dollars. It's the lawyer's hourly rate to take you
• 18:42
  Speaker 3: through the process that you really want to avoid.
• 18:45
  Speaker 4: Right.
• 18:46
  Speaker 3: And I'm a lawyer and we like hourly rates, but
• 18:49
  Speaker 3: you don't need to do this. So let's let's just
• 18:53
  Speaker 3: help people understand, you know, what what it is.
• 18:56
  Speaker 4: Right.
• 18:57
  Speaker 3: So first and foremost in this situation, you know, I
• 19:01
  Speaker 3: can't say enough about how I. Had you done some planning,
• 19:03
  Speaker 3: had you had a trust, you would avoided the probate
• 19:06
  Speaker 3: process and there would have been none of this fee issue.
• 19:08
  Speaker 3: This whole pr fee issue would not really have existed.
• 19:12
  Speaker 3: If you've simply avoided probate, this all goes away. Also,
• 19:17
  Speaker 3: note that you know most of the time, and this
• 19:20
  Speaker 3: is why you don't hear about these things that a
• 19:22
  Speaker 3: family member who is also a beneficiary of the state
• 19:26
  Speaker 3: is usually.
• 19:27
  Speaker 2: The pr Yeah, the personal rep yep.
• 19:29
  Speaker 3: Right, So they don't really ask for a fee, no,
• 19:33
  Speaker 3: because they're just taking money out of one pocket and
• 19:36
  Speaker 3: putting it in the other. Right, right, So this doesn't
• 19:39
  Speaker 3: you know, if you don't hear about it a lot,
• 19:40
  Speaker 3: it's because they don't usually.
• 19:42
  Speaker 2: And ask for family is completely dysfunctional. They're not going
• 19:45
  Speaker 2: to ask for a fee usually.
• 19:47
  Speaker 3: That's that's right. And let's talk about another issue here
• 19:53
  Speaker 3: was which was the fact that he died intestate. So
• 19:56
  Speaker 3: he died, you know, without a will, So without a will,
• 19:59
  Speaker 3: you know, how did we know? Where did it go? Well,
• 20:02
  Speaker 3: it turns out that they made it very clear that
• 20:04
  Speaker 3: the father was the only surviving heir, so no kids,
• 20:11
  Speaker 3: children and the third in line would be next going
• 20:14
  Speaker 3: up to a parent, and so it found its way there.
• 20:17
  Speaker 2: And he's not competent, so he could be in a
• 20:18
  Speaker 2: nursing home. He could I mean, that's not planning. That's
• 20:22
  Speaker 2: unfortunate because it's going up to a level that's now
• 20:25
  Speaker 2: at risk for whatever expenses.
• 20:28
  Speaker 3: Are you're right to say that it's at risk for
• 20:30
  Speaker 3: a nursing home. But in addition, depending on what dad owns. Now,
• 20:34
  Speaker 3: you've just bumped up Dad's estate and now it went
• 20:37
  Speaker 3: up a generation, taxed up, taxed up, and it could
• 20:40
  Speaker 3: be taxed again as soon as Dad dies to get
• 20:43
  Speaker 3: back down to the same generation. So this is really
• 20:46
  Speaker 3: a bad plan all the way around, from a from
• 20:50
  Speaker 3: a tax perspective, a nursing home perspective, a probate perspective.
• 20:54
  Speaker 3: But it is what it is, and we're here to
• 20:57
  Speaker 3: learn from it. The next thing is, let's run through
• 20:59
  Speaker 3: the obate process, at least in summary. And again I'm
• 21:02
  Speaker 3: touching just the tip of the probate iceberg here, but
• 21:06
  Speaker 3: let's just give it to you. File the will, done easy.
• 21:11
  Speaker 3: Next you've got to file a petition to appoint the PR.
• 21:15
  Speaker 2: So they're usually appointed in the will, are they not, Well,
• 21:18
  Speaker 2: they're listed.
• 21:19
  Speaker 3: That's it's going to put down their noe. They're listed
• 21:21
  Speaker 3: in the will. That doesn't make you the PR not automatic, No,
• 21:26
  Speaker 3: it's not automatic. You have to apply. And then when
• 21:28
  Speaker 3: we apply to the court to get appointed PR, we
• 21:32
  Speaker 3: have to send the letters to all the errors at
• 21:34
  Speaker 3: law giving them thirty days to object to your request
• 21:39
  Speaker 3: to be appointed. And again sometimes you can send the letters,
• 21:43
  Speaker 3: but if everybody's on board. You can just get an assent, right,
• 21:47
  Speaker 3: and you can just go around and have them sign
• 21:48
  Speaker 3: an assent. But either way they have to be notified
• 21:52
  Speaker 3: and they have to have the opportunity to say no,
• 21:55
  Speaker 3: so you're not automatically INBMS. And then once you've gone
• 21:59
  Speaker 3: through that process, then you get to wait some more.
• 22:02
  Speaker 3: This is what probate court's all about. You get to
• 22:05
  Speaker 3: wait some more for a return day. What the heck
• 22:08
  Speaker 3: is a return day? Well, that's when the court calls
• 22:10
  Speaker 3: us and says, come on and return back to the
• 22:13
  Speaker 3: court so we can appoint you the pr and then
• 22:16
  Speaker 3: they give you this certificate, this appointment, piece of paper,
• 22:20
  Speaker 3: letters of authority, letters of authority. Right, so now you
• 22:23
  Speaker 3: finally have that. Why is all that so important? Well,
• 22:27
  Speaker 3: if I'm in probate, that means there's likely a probate asset.
• 22:31
  Speaker 3: What the heck is that? That would be an asset
• 22:33
  Speaker 3: that's in your own name with no designated beneficiary.
• 22:36
  Speaker 2: No beneficiary, no joint owners.
• 22:38
  Speaker 3: Like a bank account, like an investment account. In order
• 22:41
  Speaker 3: to talk to those people, you need to have the
• 22:44
  Speaker 3: death certificate in one hand and the actual appointment in
• 22:47
  Speaker 3: the other.
• 22:48
  Speaker 2: Hand, saying that you're representing their estate.
• 22:50
  Speaker 3: Then you could go in and talk to these financial
• 22:52
  Speaker 3: institutions and get the money, move the money. On top
• 22:55
  Speaker 3: of that, you got to file an inventory listing all
• 22:57
  Speaker 3: the values. Then you got to file the accounting showing
• 23:00
  Speaker 3: where all the money went during the process, in and out.
• 23:03
  Speaker 3: You've got to do a final accounting.
• 23:05
  Speaker 2: At some point and thank you, hurry up and wait.
• 23:07
  Speaker 3: Yeah, it's it's a lot. And I didn't even get
• 23:09
  Speaker 3: to all of it. And just understand that there's a
• 23:12
  Speaker 3: difference between a grosser state and a PROBTA state. Probata
• 23:15
  Speaker 3: state could be zero, grosser state could have millions in it, folks,
• 23:19
  Speaker 3: that's the probate process. I'm talking to you also about
• 23:23
  Speaker 3: life estates. Learn the good, the bad, the ugly of
• 23:27
  Speaker 3: these life estates eight six six eight four eight five
• 23:31
  Speaker 3: six nine nine or Legal Exchange show dot com.
• 23:34
  Speaker 2: You've been listening to Todd Lutsky, a partner with the
• 23:37
  Speaker 2: law firm of Cushing and Dolan. I'm Susan Powers, a
• 23:40
  Speaker 2: financial advisor with the Armstrong Advisory Group. Todd will be
• 23:44
  Speaker 2: answering your listener questions when we return to the Legal
• 23:47
  Speaker 2: Exchange with Todd.
• 23:48
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  Speaker 1: You're listening to the Legal Exchange and it's time for
• 27:26
  Speaker 1: Ask Todd, the segment where Todd will answer your questions
• 27:30
  Speaker 1: about anything and everything that's included in the estate planning process.
• 27:34
  Speaker 1: Once again, here's Todd Lutsky and Susan Powers.
• 27:39
  Speaker 2: Welcome back, Todd. We have a few questions from listeners
• 27:41
  Speaker 2: for you. First question comes from Karen in Malden, mass
• 27:45
  Speaker 2: And Karen writes, my husband has a family history of dementia. Together,
• 27:50
  Speaker 2: we have around five hundred thousand in I raise evenly
• 27:53
  Speaker 2: split five hundred thousand in after tax investments in a
• 27:57
  Speaker 2: home worth five hundred and fifty thousand. It seems fine now,
• 28:01
  Speaker 2: but I've noticed some small concerning changes in him. What
• 28:04
  Speaker 2: would we do if he needs to go into a
• 28:06
  Speaker 2: nursing home. How would we protect our assets so that
• 28:09
  Speaker 2: I don't end up bankrupt?
• 28:12
  Speaker 3: Yeah, so this is really a perfect planning situation. And
• 28:18
  Speaker 3: even if there wasn't dementia. So I just want to
• 28:19
  Speaker 3: make it not limited to people who have dementia. You
• 28:22
  Speaker 3: could be you know, sixty five and healthy and still
• 28:25
  Speaker 3: have this kind of assets. It's the kind of assets
• 28:28
  Speaker 3: that matter.
• 28:28
  Speaker 4: Right.
• 28:29
  Speaker 3: So they got about a million in IRIS, and then
• 28:31
  Speaker 3: they've got another million of non IRA money, give or
• 28:35
  Speaker 3: take between a house and other investments. Yep. Right, So
• 28:39
  Speaker 3: they're looking at a little north perhaps of the two
• 28:42
  Speaker 3: million dollar threshold. So when someone like this comes in,
• 28:45
  Speaker 3: depending on their age, and again whether it's dementia or not,
• 28:48
  Speaker 3: dementia of course exacerbates the need to do this because
• 28:54
  Speaker 3: the objectives that I would see for a client like
• 28:56
  Speaker 3: this would be, you know, definitely to avoid the probe,
• 29:00
  Speaker 3: which we just spent that whole last segment on. We
• 29:04
  Speaker 3: also don't want to unnecessarily pay taxes. Now federally we're
• 29:07
  Speaker 3: way under I get it, but for Massachusetts anyway, you know,
• 29:10
  Speaker 3: you don't want to creep over the two million and
• 29:13
  Speaker 3: ended up paying taxes.
• 29:14
  Speaker 2: And they're not done living now. Those ATHLETs will.
• 29:16
  Speaker 3: Grow exactly, They could be fine for a long time.
• 29:19
  Speaker 3: So we want to make sure that we can shelter
• 29:22
  Speaker 3: up to four million as a married couple, which trust
• 29:25
  Speaker 3: planning will do, not any other kind right, and probate
• 29:29
  Speaker 3: avoidance will work with the trust planning, and then it's
• 29:33
  Speaker 3: just a function of picking the type of trust that
• 29:35
  Speaker 3: you would want. In this case, that type of trust
• 29:38
  Speaker 3: would definitely be the irrevocable variety, so that we can
• 29:43
  Speaker 3: now get this five year clock started. So even if
• 29:46
  Speaker 3: he's in early dementia stage, there's a good chance we're
• 29:50
  Speaker 3: going to get through several years, maybe five, maybe four.
• 29:54
  Speaker 3: But if you have that clock running, you're going to
• 29:57
  Speaker 3: have options to you know, if I have to pay
• 29:59
  Speaker 3: privately one year to protect a million plus, I'm going
• 30:02
  Speaker 3: to do that. Yeah, So getting that clock started for somebody,
• 30:07
  Speaker 3: even with dementia critical and certainly if you don't have dementia,
• 30:12
  Speaker 3: just getting the clock started so that if I'm sixty
• 30:14
  Speaker 3: five by the time I'm seventy, it's sort of in
• 30:17
  Speaker 3: my rear view mirror. I'm good with that.
• 30:20
  Speaker 2: So with the five year clock, with the airy vocable,
• 30:23
  Speaker 2: the home and the after tax investments go in. But
• 30:26
  Speaker 2: what do you do with that the IRA money?
• 30:29
  Speaker 3: Yeah, so the IRA money is a little tougher, right,
• 30:32
  Speaker 3: we would over the next course of the next five years,
• 30:35
  Speaker 3: the focus would be to live on that money. So
• 30:38
  Speaker 3: it comes down you have to take it anyway. Remember
• 30:41
  Speaker 3: IRA money should be spent before other money. When we
• 30:44
  Speaker 3: do when we get to this age, because it's it's
• 30:46
  Speaker 3: taxable on the estate side for the survivor, it's not
• 30:51
  Speaker 3: protected from the nursing home right and three, leaving it
• 30:56
  Speaker 3: to children who have to take it out over ten years.
• 30:59
  Speaker 3: Under the not so new Secure Act anymore, it requires
• 31:04
  Speaker 3: a much bigger income tax bite for the kids who
• 31:08
  Speaker 3: could be pushed into a higher bracket.
• 31:10
  Speaker 2: That are probably in their peak earning years when they inherate.
• 31:13
  Speaker 3: They could be making a hundred plus a year and
• 31:14
  Speaker 3: then they got another hundred coming out. I mean that's
• 31:16
  Speaker 3: a bump up in taxes, So lots of reasons to
• 31:20
  Speaker 3: be spending it just going forward. Well, I've protected the
• 31:24
  Speaker 3: other half of this estate by tucking it away into
• 31:28
  Speaker 3: the trusts. Now that's just part of the answer. The
• 31:31
  Speaker 3: rest of it is, well, when you're doing this planning
• 31:35
  Speaker 3: that allows you to tuck away half, is there anything
• 31:39
  Speaker 3: I can do with the IRA? Yes, put the designated
• 31:43
  Speaker 3: beneficiary on the IRA to be the estate of the individual.
• 31:49
  Speaker 3: Now you put together a testamentary trust, which is a
• 31:52
  Speaker 3: trust built into a will. I'll call it a will trust,
• 31:56
  Speaker 3: and it will capture those IRA ass that if someone
• 32:01
  Speaker 3: just dies and doesn't go to a nursing home and
• 32:03
  Speaker 3: shelter it from medicaid with no five year waiting period
• 32:08
  Speaker 3: for the surviving spouse. So helps the spouse and helps
• 32:13
  Speaker 3: the spouse, and it also protects it from the nursing
• 32:17
  Speaker 3: home for the kids. So that's a really complex answer.
• 32:21
  Speaker 3: But this is why you call and get help and
• 32:23
  Speaker 3: get your estate plan in order, because it's not a
• 32:25
  Speaker 3: complicated estate, but lots can be done to help the family,
• 32:29
  Speaker 3: not always the case if you take a shortcut and
• 32:31
  Speaker 3: do just a life estate. They do work, They have benefits,
• 32:36
  Speaker 3: they also have negatives, and I think they have more
• 32:38
  Speaker 3: negatives than positives. This guide tells us, tells you how
• 32:41
  Speaker 3: to calculate them. When I use them, I only use
• 32:44
  Speaker 3: them three times. This will tell you that, and it
• 32:46
  Speaker 3: explains all the creditor risks, loss of control and tax
• 32:50
  Speaker 3: problems that go along with this. It's the end of
• 32:54
  Speaker 3: the month, Folks, call and get the guide Calculating the
• 32:57
  Speaker 3: Consequences of a Life Estate eight six y six eight
• 33:00
  Speaker 3: four eight five six nine nine or Legal Exchange Show
• 33:04
  Speaker 3: dot com again eight six six eight four eight five
• 33:08
  Speaker 3: six nine nine or Legal Exchange Show dot com.
• 33:12
  Speaker 2: Our last question comes from Maureene in Plymouth, mass and
• 33:15
  Speaker 2: Maureen writes, several years ago, my mother opened a large
• 33:19
  Speaker 2: CD at a bank with my sister listed as the
• 33:21
  Speaker 2: joint owner. She did this because my sister lived close
• 33:24
  Speaker 2: to her and has always said she is to divide
• 33:27
  Speaker 2: it with me and my brother. My mother has now
• 33:30
  Speaker 2: passed away and my sister claims the CD is hers alone.
• 33:35
  Speaker 2: I know this wasn't my mother's intention. Does my sister
• 33:38
  Speaker 2: have any legal obligation to share that money.
• 33:41
  Speaker 3: Now first and foremost, and I actually had a real
• 33:46
  Speaker 3: life store. I had this call just just last week
• 33:49
  Speaker 3: from a client whose mother who I didn't do the
• 33:52
  Speaker 3: planning for it. Did the client did the client's planning,
• 33:55
  Speaker 3: but not for the mother who had passed away and
• 33:57
  Speaker 3: left assets. Kind of like this had questions, same idea.
• 34:02
  Speaker 3: So here's here's the situation. First place you should look
• 34:07
  Speaker 3: before you do anything is the will. Was there at
• 34:11
  Speaker 3: least a will done here? I know I say a
• 34:14
  Speaker 3: lot about a will as it won't and it won't
• 34:16
  Speaker 3: do a lot of things, but it does do some things.
• 34:19
  Speaker 3: So in this case, a will can direct where your
• 34:22
  Speaker 3: assets go, including a joint account. Really, if, like we
• 34:28
  Speaker 3: do when we draft our documents, we know this arrangement
• 34:33
  Speaker 3: happens this this frequently, Yeah, this basically convenient setup happens frequently,
• 34:39
  Speaker 3: so we know that the client, you know, intended to
• 34:43
  Speaker 3: treat everybody equally. In fact, you might even see it
• 34:46
  Speaker 3: like in a trust it might say equally to the kids,
• 34:48
  Speaker 3: or a will might say equally to the kids. Well,
• 34:51
  Speaker 3: that in and of itself isn't going to fix the problem.
• 34:55
  Speaker 3: That shows the intent. But if you don't have language
• 35:00
  Speaker 3: in the will that says any asset that basically, I
• 35:05
  Speaker 3: understand that there might be assets owned jointly. However, I
• 35:12
  Speaker 3: determined that those were set up for convenience purposes only,
• 35:16
  Speaker 3: and while normally would avoid probate, they will not avoid probate.
• 35:20
  Speaker 3: They will be treated as going through the will so
• 35:23
  Speaker 3: that it can then pour into the trust and be
• 35:25
  Speaker 3: distributed out that way. I'm paraphrasing the language, but that's
• 35:30
  Speaker 3: roughly what You got to have something in there that says,
• 35:33
  Speaker 3: disregard the joint ownership on convenient on bank accounts, not
• 35:39
  Speaker 3: designated beneficiaries, that's different. But if it's a joint ownership,
• 35:44
  Speaker 3: you disregard it and have it go through the will.
• 35:47
  Speaker 3: If that's the case, and the will says equally to
• 35:49
  Speaker 3: the kids, you see, we solve the problem.
• 35:51
  Speaker 2: So what happens if mom didn't do any planning.
• 35:53
  Speaker 3: So if she didn't have or if she did planning,
• 35:56
  Speaker 3: but in the will it doesn't say that, then jointly
• 36:00
  Speaker 3: owned assets would avoid probate. And so many people say, oh, yay,
• 36:03
  Speaker 3: we're avoiding probate because that's what we want to do,
• 36:06
  Speaker 3: and it would go to the surviving joint owner, and
• 36:10
  Speaker 3: in this case that sister would be correct that these
• 36:14
  Speaker 3: belong to the joint owner. The joint owner arguably has
• 36:19
  Speaker 3: no legal obligation to share it with her siblings. Why
• 36:25
  Speaker 3: because that language was not in the will?
• 36:27
  Speaker 2: Could they seer for that?
• 36:29
  Speaker 3: Anybody can sue anybody, right, I don't know what the
• 36:33
  Speaker 3: odds of winning that will be. Clearly, if the will
• 36:36
  Speaker 3: says equally, there's some merit that this was supposed to
• 36:40
  Speaker 3: be equally. But the other side is no. If she
• 36:43
  Speaker 3: meant it to be equally, she wouldn't have left it joint.
• 36:45
  Speaker 3: So you have the argument right. Same thing with designated beneficiaries.
• 36:49
  Speaker 3: If you go out of your way to put a
• 36:51
  Speaker 3: beneficiary on something, well, then this will language isn't going
• 36:54
  Speaker 3: to fix that. You meant that to happen, and that's
• 36:57
  Speaker 3: why you put the designated beneficiary on there. So folks
• 37:01
  Speaker 3: just don't do things shortcuts. Get the guide eight six
• 37:05
  Speaker 3: six eight four eight five six ninety nine and learn
• 37:08
  Speaker 3: about life estates.
• 37:10
  Speaker 2: If you have a question you would like to ask Todd,
• 37:12
  Speaker 2: visit his website Legal Exchange Show dot com and click
• 37:16
  Speaker 2: on the as Tod tab. Maybe I'll be able to
• 37:18
  Speaker 2: read your question on the air, and hopefully his answer
• 37:21
  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,
• 37:31
  Speaker 2: a financial advisor with the Armstrong Advisory Group. We'll be
• 37:34
  Speaker 2: back with more after this quick break on the legal
• 37:37
  Speaker 2: exchange with Todd Lutsky.
• 37:39
  Speaker 1: Life estates carry a higher risk of income tax penalties
• 37:42
  Speaker 1: and hidden gift issues, and while they can be beneficial
• 37:45
  Speaker 1: in some cases if you use one, you need to
• 37:47
  Speaker 1: be aware of the pitfalls they make us. Cushing and
• 37:50
  Speaker 1: Dolan are experts in other law and have nearly forty
• 37:52
  Speaker 1: years of experience helping families with their estate planning. Their
• 37:55
  Speaker 1: new guide, called Calculating the Consequences of Life Estates, can
• 37:59
  Speaker 1: help you make the right place decisions about how to
• 38:01
  Speaker 1: protect your assets from probate and the nursing home. Life
• 38:03
  Speaker 1: estates are not simple documents and can create the potential
• 38:06
  Speaker 1: for you to lose control of your estate. So if
• 38:09
  Speaker 1: you haven't done your planning yet, now's the time to
• 38:11
  Speaker 1: learn about the effects that life estates can have when
• 38:13
  Speaker 1: it comes to protecting your assets. Call Cushing and Dolin
• 38:16
  Speaker 1: today at eight sixty six eight four eight five six
• 38:18
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• 38:21
  Speaker 1: Consequences of Life estates that's eight sixty six eight four
• 38:24
  Speaker 1: eight five six ninety nine, or request the guide online
• 38:27
  Speaker 1: at Legal exchange show dot com. The proceeding was paid
• 38:30
  Speaker 1: for and the views expressed are solely those of Cushing
• 38:32
  Speaker 1: and Dolin. Cushing and Dolan and or Armstrong Advisory may
• 38:34
  Speaker 1: contact you offering legal or investment services. Cushing and Dolan
• 38:37
  Speaker 1: and Armstrong Advisory do not endorse each other and are
• 38:39
  Speaker 1: not affiliated.
• 38:40
  Speaker 5: Financial planning is hard enough, that's why having the right
• 38:43
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• 38:46
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• 38:48
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• 38:51
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• 38:52
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• 38:55
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• 39:00
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• 39:17
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• 39:19
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• 39:22
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• 39:26
  Speaker 1: The proceeding was paid for by Armstrong Advisory Group, a
• 39:29
  Speaker 1: registered investment advisor. Nothing in the ad or in any
• 39:31
  Speaker 1: Armstrong guide a specific financial, legal, or tax advice. Consult
• 39:34
  Speaker 1: your own financial tax into state planning advisors before making
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• 40:42
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• 40:45
  Speaker 1: one needs a nursing homestay, call Todd right now at
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  Speaker 1: eight six six eight four eight five six ninety nine
• 40:50
  Speaker 1: and let him make sure your assets are protected. That's
• 40:53
  Speaker 1: eight six six eight four eight five six nine nine,
• 40:56
  Speaker 1: or visit him online at Legal Exchange show dot com.
• 41:00
  Speaker 2: Welcome back into the Legal Exchange with Todd Lutsky. I'm
• 41:03
  Speaker 2: Susan Power as a financial advisor the Armstrong Advisory Group.
• 41:07
  Speaker 2: And I'm joined, of course by Todd Lutsky, a partner
• 41:09
  Speaker 2: with the law firm of Cushing and Dolan with a
• 41:12
  Speaker 2: masters in taxation. So Todd, it's the end of the month.
• 41:16
  Speaker 2: Can't believe we've got one quarter of this year done already.
• 41:20
  Speaker 2: And I thought maybe for those folks who haven't joined
• 41:23
  Speaker 2: us for the past couple of shows, maybe we can
• 41:26
  Speaker 2: do kind of a lightning round conversation about everything life estates.
• 41:33
  Speaker 3: Wow, no pressure, Okay, I'm ready. I got my hand
• 41:37
  Speaker 3: on the bus, but.
• 41:37
  Speaker 2: The pressure's on.
• 41:38
  Speaker 3: Got my handle the buzzer.
• 41:39
  Speaker 2: What is a life estate?
• 41:41
  Speaker 3: It is a nugget of ownership in a piece of property,
• 41:44
  Speaker 3: generally your home, giving you the right to live there,
• 41:49
  Speaker 3: like to pay the bills, and the right to collect
• 41:53
  Speaker 3: rent if you chose to rent the property.
• 41:57
  Speaker 2: Okay, not.
• 41:59
  Speaker 3: Pretty vanilla.
• 42:00
  Speaker 2: Okay. So there's two ways you can actually create a
• 42:04
  Speaker 2: life estate, and that has to do with that little
• 42:07
  Speaker 2: nugget of ownership, which is the life of state itself.
• 42:10
  Speaker 2: But then what about everything The other big part of
• 42:14
  Speaker 2: the ownership the remainder remain interest.
• 42:17
  Speaker 3: So the remainder interest when you keep the right to
• 42:20
  Speaker 3: live there, that nugget of ownership, which does get smaller
• 42:24
  Speaker 3: as you get older in terms of value, not rights,
• 42:28
  Speaker 3: but value. The remainder piece is generally much larger part
• 42:34
  Speaker 3: of the entire, entire piece of real estate. And that
• 42:40
  Speaker 3: can be given. And there's an important word, because I'm
• 42:44
  Speaker 3: making a gift given to people, generally kids. Is who
• 42:51
  Speaker 3: you give it to, and then you reserve the right
• 42:53
  Speaker 3: to live there or you I'll use the word give,
• 42:56
  Speaker 3: but it's light. I'd say transfer to a ear rev
• 43:00
  Speaker 3: trust instead of the kids. And there's less implications with
• 43:05
  Speaker 3: that's that's the better of the two ways to do.
• 43:09
  Speaker 2: It, the less bad way.
• 43:10
  Speaker 3: Let's call it the less bad way. I like that.
• 43:12
  Speaker 2: So if I try and jump into the mindset of
• 43:16
  Speaker 2: folks who have done this, when they're doing it on
• 43:19
  Speaker 2: their own, different if they're doing it with an attorney, right, yes,
• 43:22
  Speaker 2: likely they would be going down the path of the
• 43:25
  Speaker 2: trust route rather than they get hopefully they will be
• 43:28
  Speaker 2: not giving it to their kids. But when you think
• 43:31
  Speaker 2: about the folks that have done this, yeah, I have
• 43:34
  Speaker 2: to think that their logic in doing such a thing
• 43:37
  Speaker 2: is I want to avoid probate and I don't want
• 43:42
  Speaker 2: to get kicked out, so that's fair. I'm going to
• 43:46
  Speaker 2: give it to my kids, but I'm going to reserve
• 43:48
  Speaker 2: the life estates so they can't kick me out.
• 43:50
  Speaker 3: And I would say those are two correct assumptions, and
• 43:55
  Speaker 3: the result of doing this is correct if you keep
• 44:00
  Speaker 3: that right to live there. It is just that the
• 44:03
  Speaker 3: right to live there. So no, your kids cannot technically
• 44:07
  Speaker 3: kick you out number one and number two, Yes, if
• 44:11
  Speaker 3: you continue to hold this life estate until you pass,
• 44:17
  Speaker 3: then you will avoid the probate process because when you die,
• 44:23
  Speaker 3: the life estate just basically evaporates and it's gone and
• 44:28
  Speaker 3: the remainder men become the one hundred owners.
• 44:33
  Speaker 2: Okay, So if you're going to give your house to
• 44:35
  Speaker 2: your kids, not that you are advocating to that, absolutely not. Never,
• 44:41
  Speaker 2: it's better to reserve a life estate than to make
• 44:45
  Speaker 2: in a full transfer to your kids where you give
• 44:49
  Speaker 2: up the right to live in your own house.
• 44:50
  Speaker 3: Yeah, I mean, clearly, folks, if you've ever given and
• 44:54
  Speaker 3: some of you out there might be listening and saying, yeah,
• 44:56
  Speaker 3: I've done that. I gave my entire house away to
• 44:59
  Speaker 3: my kids because they're the best. But you know, when
• 45:02
  Speaker 3: they were the best, they were the best. But you know,
• 45:04
  Speaker 3: when that happens, you technically don't have the right to
• 45:09
  Speaker 3: live there. So if they have to move and change jobs,
• 45:12
  Speaker 3: or if they decide to sell the house, they can
• 45:15
  Speaker 3: do that, or if they get a divorce, then you are.
• 45:19
  Speaker 2: A house is a marital asset.
• 45:21
  Speaker 3: It's a marital asset, and you really don't have a
• 45:23
  Speaker 3: say over whether or not your blood relative, whoever that
• 45:28
  Speaker 3: is that owns it is going to end up with it.
• 45:31
  Speaker 3: So if they don't end up with it, you're going
• 45:33
  Speaker 3: to be sharing it with somebody that you might not
• 45:37
  Speaker 3: like and they could kick you out if you don't
• 45:39
  Speaker 3: have that life estate. So, folks, lots of pros, lots
• 45:44
  Speaker 3: of cons. I think way more cons than pros. As
• 45:47
  Speaker 3: you're hearing this as we go through from control issues
• 45:51
  Speaker 3: to creditor issues, to gift tax issues to income tax issues, Folks,
• 45:56
  Speaker 3: don't just take the shortcut into a life estate. If
• 45:59
  Speaker 3: you've done one, get the guide, learn what you've done.
• 46:03
  Speaker 3: If you haven't done one, get the guide and figure
• 46:05
  Speaker 3: out whether you should do it or not. Calculating the
• 46:09
  Speaker 3: consequences of a life estate eight six six eight four
• 46:13
  Speaker 3: eight five six nine nine or legal Exchange show dot com.
• 46:17
  Speaker 3: It's the end of the month, last chance to get
• 46:19
  Speaker 3: it eight six six eight four eight five six nine
• 46:23
  Speaker 3: nine or legal Exchange show dot com.
• 46:26
  Speaker 2: So I know you would never set it up so
• 46:28
  Speaker 2: that you reserve a life estate for our client and
• 46:31
  Speaker 2: put the remainder interest with the kids. But there have
• 46:34
  Speaker 2: been occasions where you have reserved that life estate and
• 46:38
  Speaker 2: put the remainder interest into an irrevocable trust.
• 46:42
  Speaker 3: Yes, so there.
• 46:43
  Speaker 2: Are a couple of legitimate reasons why you would actually
• 46:48
  Speaker 2: do this.
• 46:49
  Speaker 3: There is, and those also in the guide. But let
• 46:52
  Speaker 3: me tell you about it. And by the way, I'm
• 46:53
  Speaker 3: just going to go back to what you said in
• 46:55
  Speaker 3: the beginning, and when I say I've never given the
• 46:58
  Speaker 3: house to children and reserved a life estate, I'm going
• 47:01
  Speaker 3: to stress that I've never done it. And I've even
• 47:06
  Speaker 3: walked away from cases where the client says that's all
• 47:09
  Speaker 3: I want to do, then they really need to get
• 47:13
  Speaker 3: another lawyer. So that's okay with me. It's just that
• 47:17
  Speaker 3: I feel that strongly about protecting my client and not
• 47:21
  Speaker 3: so much the kids first. It's the client's first, so good.
• 47:25
  Speaker 3: Just wanted to make that clear. But as you said,
• 47:27
  Speaker 3: there are some benefits. So if you've got a situation
• 47:31
  Speaker 3: where you have a two family home, you're renting the
• 47:38
  Speaker 3: upstairs living downstairs, it's one deed, you put it into
• 47:42
  Speaker 3: the trust. You would reserve a life estate. Why for convenience,
• 47:47
  Speaker 3: you don't have to do this, by the way, it's
• 47:50
  Speaker 3: up to the client. But sometimes the client doesn't want
• 47:54
  Speaker 3: the trust to earn the rental income because if the
• 47:57
  Speaker 3: trust earns the rental income for the upstairs unit, then
• 48:02
  Speaker 3: it needs to file a separate income tax return. Not
• 48:06
  Speaker 3: that that's a big problem. It also doesn't pay any taxes.
• 48:12
  Speaker 3: It's just a filing that needs to be done to
• 48:14
  Speaker 3: report the rent and the expenses, and then that would
• 48:18
  Speaker 3: kick out a letter to the grant ours to put
• 48:23
  Speaker 3: all the rent and expenses on their personal income tax return.
• 48:26
  Speaker 3: So it doesn't create a taxable problem. It's just an
• 48:30
  Speaker 3: extra filing. Okay, So sometimes people don't want that extra filing.
• 48:36
  Speaker 3: So if you reserve a life estate, remember we talked
• 48:40
  Speaker 3: earlier about the definition. One is the right to live there.
• 48:44
  Speaker 3: Two is the right to collect the income that that
• 48:47
  Speaker 3: property generates. So if you have that right to collect
• 48:52
  Speaker 3: the income, then the tenant can continue to write the
• 48:55
  Speaker 3: check directly to you. So there's literally no change for
• 49:00
  Speaker 3: you when you put this in the trust. You still
• 49:02
  Speaker 3: live there, pay your bills, and collect the rent, and
• 49:05
  Speaker 3: you don't have to file for the trust if there's
• 49:07
  Speaker 3: no other assets in there.
• 49:08
  Speaker 2: Got it? Got it? And so what are the other
• 49:11
  Speaker 2: two situations where you would potentially recommend?
• 49:14
  Speaker 3: Another one would be if you have a mortgage on
• 49:17
  Speaker 3: your property. If you have a mortgage on your property,
• 49:20
  Speaker 3: you want to be able to especially in this low
• 49:22
  Speaker 3: interest rate. And I mean you probably got it long
• 49:25
  Speaker 3: ago when the interest rates are low. Now they're higher,
• 49:28
  Speaker 3: and so banks look for any reason to call the note.
• 49:31
  Speaker 3: If you reserve a life estate, they cannot call the
• 49:34
  Speaker 3: note on the transfer to the trust, okay, period. And
• 49:39
  Speaker 3: the last one would be check with your town. It's
• 49:44
  Speaker 3: not everywhere, but certain towns give you real estate tax
• 49:49
  Speaker 3: abatements for being an owner occupant. Some towns give you
• 49:54
  Speaker 3: veterans real estate tax benefits, a reduction in your costs
• 50:01
  Speaker 3: and the real estate tax senior sixty five and over.
• 50:04
  Speaker 3: If your town does that, please let the lawyer know
• 50:08
  Speaker 3: because they don't always know whether you have that or not.
• 50:12
  Speaker 3: But by reserving a life estate, when you transfer it
• 50:15
  Speaker 3: in you will preserve that benefits. Okay, folks, that's just
• 50:22
  Speaker 3: the tip of the life of the life estate Iceberg.
• 50:26
  Speaker 3: But please call and get the guide. It's the end
• 50:28
  Speaker 3: of the month. Learn if life estates are right or
• 50:32
  Speaker 3: not for you eight six six eight four eight five
• 50:37
  Speaker 3: six nine nine or Legal Exchange show dot com. It's
• 50:41
  Speaker 3: the end of the month, folks.
• 50:42
  Speaker 2: Todd Let's key from the law firm of Cushing in Jolan.
• 50:45
  Speaker 2: Thank you so much.
• 50:46
  Speaker 3: Thank you, Susan, always a pleasure.
• 50:47
  Speaker 2: I'm Susan Powers, a financial advisor with the Armstrong Advisory Group.
• 50:52
  Speaker 2: We thank you for joining us today and we'll be
• 50:54
  Speaker 2: back again next week on the Legal Exchange with Todd Lutsky.
• 51:00
  Speaker 1: Dates carry a higher risk of income tax penalties and
• 51:02
  Speaker 1: hidden gift issues, and while they can be beneficial in
• 51:05
  Speaker 1: some cases if you use one, you need to be
• 51:07
  Speaker 1: aware of the pitfalls they make cause. Cushing and Dolan
• 51:10
  Speaker 1: are experts in elder law and have nearly forty years
• 51:12
  Speaker 1: of experience helping families with their estate planning. Their new guide,
• 51:16
  Speaker 1: called Calculating the Consequences of Life Estates, can help you
• 51:19
  Speaker 1: make the right decisions about how to protect your assets
• 51:21
  Speaker 1: from probate and the nursing Home. Life estates are not
• 51:24
  Speaker 1: simple documents and can create the potential for you to
• 51:27
  Speaker 1: lose control of your estate. So if you haven't done
• 51:29
  Speaker 1: your planning yet, now's the time to learn about the
• 51:31
  Speaker 1: effects that life estates can have when it comes to
• 51:33
  Speaker 1: protecting your assets. Call Cushing and Dolan today at eight
• 51:36
  Speaker 1: sixty six eight four eight five six ninety nine and
• 51:39
  Speaker 1: request their new guide called Calculating the Consequences of Life Estates.
• 51:42
  Speaker 1: That's eight sixty six eight four eight five six nine nine,
• 51:46
  Speaker 1: or request the guide online at Legal exchange show dot com.
• 51:49
  Speaker 1: The proceeding was paid for and the views expressed are
• 51:51
  Speaker 1: solely those of Cushing and Dolan. Cushing and Dolan and
• 51:53
  Speaker 1: or Armstrong Advisory may contact you offering legal or investment services.
• 51:56
  Speaker 1: Cushing and Dolan and Armstrong Advisory do not endorse each
• 51:58
  Speaker 1: other and are not affiliated.
• 52:00
  Speaker 5: Developing the right financial strategy can be complicated, especially in
• 52:03
  Speaker 5: today's economic climate. HI, this is Mike Armstrong from the
• 52:06
  Speaker 5: Armstrong Advisory Group. One of the most important pieces to
• 52:09
  Speaker 5: this puzzle is the trust you have with the advisor
• 52:11
  Speaker 5: you choose to work with. We've written a brand new
• 52:14
  Speaker 5: guide called what can an advisor do for me. In it,
• 52:17
  Speaker 5: we discuss a host of reasons why picking the right
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  Speaker 5: you age. A financial advisor is much more than someone
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• 52:30
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• 52:35
  Speaker 5: assets as you enter your retirement years. Call us right
• 52:38
  Speaker 5: now at eight hundred three nine three four zero zero
• 52:41
  Speaker 5: one and ask for our new guide today. That number
• 52:43
  Speaker 5: again is eight hundred three nine three four zero zero one.
• 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. If you're looking for the perfect place for
• 53:01
  Speaker 1: your next vacation, look no further than the US Virgin Islands.
• 53:05
  Speaker 1: Act fast and take advantage of a special promotion to
• 53:08
  Speaker 1: Saint Croix. Experience a vibe like no other, and receive
• 53:11
  Speaker 1: a two hundred and fifty dollars per person airfare credit
• 53:14
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