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$32M Estate Mistake, Nursing Home Contracts, and Trust Planning Explained · The Legal Exchange

• 0:01
  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
• 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: to make an appointment. That's eight sixty six eight four
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  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.
• 0:36
  Speaker 2: Welcome into the Legal Exchange with Todd Lutsky. I'm Susan
• 0:40
  Speaker 2: Power as a financial advisor with the Armstrong Advisory Group,
• 0:43
  Speaker 2: and I'm joined by Todd Lutsky, a partner with the
• 0:45
  Speaker 2: law firm of Cushing and Dolan with a master's in taxation.
• 0:49
  Speaker 2: Welcome Todd. How are you today? I'm never better and
• 0:52
  Speaker 2: you great? Thank you what you have for us this week.
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  Speaker 3: A couple of cases. We got one out of Nevada
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  Speaker 3: Supreme Court case actually, and it's basically, you know what
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  Speaker 3: really happens when people that don't plan. And this is
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  Speaker 3: a case where the individual was we're thirty two million dollars. Wow,
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  Speaker 3: wife predeceased, no kids.
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  Speaker 2: How do you have no plan with that kind of wealth.
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  Speaker 3: I'm just going to leave that alone for now. We're
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  Speaker 3: going to come back to this and I'm going to
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  Speaker 3: explain not just what happens about where it goes, but
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  Speaker 3: there's so many other things that are happening in this case,
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  Speaker 3: from taxes to you can't even imagine how you leave assets,
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  Speaker 3: et cetera. So we'll come back to that because obviously
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  Speaker 3: they're faced with the intestate succession statute and all these
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  Speaker 3: other issues. But wow, that just shook me, so I
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  Speaker 3: had had to pull that case. Then we head back
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  Speaker 3: to Ohio again, my old stomping grounds. So an Ohio
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  Speaker 3: appellet court case dealing with an arbitration agreement. Now it's
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  Speaker 3: I know we've talked about this, but this isn't really
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  Speaker 3: just about the arbitration agreement. This is really to help
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  Speaker 3: us understand the differences between a guardianship, a conservativeship, a
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  Speaker 3: power of attorney, and a healthcare proxy. I think that's
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  Speaker 3: really what we learn from this case, and of course
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  Speaker 3: how not to sign these arbitration agreements when you're being
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  Speaker 3: admitted to a nursing home. So we'll talk about those
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  Speaker 3: as well, but we spend a lot of time on that.
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  Speaker 3: But that's really what I gleaned, when you know what
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  Speaker 3: I got from this case. And folks, we talk a
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  Speaker 3: lot about all the estate planning that goes on behind
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  Speaker 3: the scenes, the wills, the trust and this and that,
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  Speaker 3: and the taxes and the probate. But this month is
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  Speaker 3: really all I think, all about the family behind the
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  Speaker 3: estate plan and I think that can be more important
• 2:34
  Speaker 3: than any of this stuff. And it's a brand new guide, folks.
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  Speaker 2: For the month.
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  Speaker 3: It's how do you leave your assets to beneficiaries? And
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  Speaker 3: there's so many ways to do it, from adding a
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  Speaker 3: joint owner to accounts to having designated beneficiaries on accounts
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  Speaker 3: all the pitfalls that go with that. What about if
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  Speaker 3: I want to have staggered distributions to make it, you know,
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  Speaker 3: so kids get it at certain ages. Maybe I want
• 2:57
  Speaker 3: to learn how to divorce proofed credit or protected from
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  Speaker 3: for the kids generation skipping. How can I get a
• 3:03
  Speaker 3: tax free to the next generation. What if I've got
• 3:06
  Speaker 3: special needs children. How do I design my trust for that?
• 3:09
  Speaker 3: Second marriages? I mean, folks, there's so many things to
• 3:13
  Speaker 3: think about when you're doing your estate plan. When you
• 3:15
  Speaker 3: have these situations, rental properties, how do I handle those?
• 3:19
  Speaker 3: This is what this guide is about, the family behind
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  Speaker 3: the estate plan. It becomes a part of your estate plan.
• 3:25
  Speaker 3: Call and get it before you do your planning. Eight
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  Speaker 3: Legal Exchange Show dot com again eight six six eight
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  Speaker 3: four eight five six nine nine or Legal Exchange Show
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  Speaker 3: dot com brand new guide for the month and for
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  Speaker 3: more information go to our Instagram page Cushing Dolan PC.
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  Speaker 3: Let's go to Nevada.
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  Speaker 2: Sounds good?
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  Speaker 3: Here we are. William William died intestate in twenty twenty three.
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  Speaker 2: Intestate meaning no documentary.
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  Speaker 3: Yeah no, oh nothing, not even a will. Was an
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  Speaker 3: estate worth about thirty two million dollars his wife, so
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  Speaker 3: they were married, predeceased, and he had no kids. So
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  Speaker 3: the administrator of the estate identified William's living first cousin
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  Speaker 3: as a potential heir and requested that the district court
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  Speaker 3: to confirm this finding. Well, somebody named Jamie Lipson, child
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  Speaker 3: of one of William's predeceased first cousins argued that no,
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  Speaker 3: the intestate's succession statute should be interpreted to read per sturpies,
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  Speaker 3: meaning including him. Right, Well, the District Court concluded that
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  Speaker 3: the statute which reads, when a decedent dies without a
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  Speaker 3: spouse or kids, the estate shall be distributed to their
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  Speaker 3: next of kin in equal degree.
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  Speaker 2: What does that mean in English?
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  Speaker 3: This is what the court said, and that requires a
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  Speaker 3: per capita distribution scheme which would not include the deceased
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  Speaker 3: child the child and therefore only William would only William's
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  Speaker 3: first living cousin would be a beneficiary. Well, he appealed.
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  Speaker 3: Of course, didn't like that, so we went to the
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  Speaker 3: Supreme Court. The Supreme Court affirmed, finding that next of
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  Speaker 3: kin in equal degree excludes kindred not in the same degree.
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  Speaker 3: All right, well what does that mean? Therefore, cousins living
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  Speaker 3: are considered fourth degree under the intestate succession statute, and
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  Speaker 3: first cousins once removed, the child of a deceased first
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  Speaker 3: cousin is in the fifth degree and therefore you cannot
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  Speaker 3: take You're wow.
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  Speaker 2: Can you imagine having that kind of net worth and
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  Speaker 2: just having it go through the plinko board and just
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  Speaker 2: end up where a court says instead of you know,
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  Speaker 2: I mean even if you did a will, I mean
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  Speaker 2: that's obviously not enough. But even if you did a will,
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  Speaker 2: you'd at least be able to say, give it to
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  Speaker 2: this charity or give it to that charity, or give
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  Speaker 2: it to this person or something. Yeah, at least decide something.
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  Speaker 3: But yeah, so, I mean, this is the right decision.
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  Speaker 3: There's no guesswork here. I'm sure that's how it's supposed
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  Speaker 3: to be in this this unfortunately fifth degree cousin once
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  Speaker 3: removed does not get to take and so too bad
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  Speaker 3: for you. But where do we learn from this? Right?
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  Speaker 3: These are all about so when you die without a will,
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  Speaker 3: like you said, Susan, it's really just not telling anybody
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  Speaker 3: who you wanted to leave your assets to. And you're
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  Speaker 3: kind of stuck with not only probate, but what this
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  Speaker 3: you know, intestate statue directing where your assets go. But
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  Speaker 3: there's a lot more going on here. Because I'm a
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  Speaker 3: tax guy, so I had to sit down and say, well,
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  Speaker 3: no one's talking about this, but let's talk. It wasn't
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  Speaker 3: mentioned in this in the decision. Yeah, but I said,
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  Speaker 3: let me just run some numbers.
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  Speaker 2: Please do, because that's so I'm going to be horrified
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  Speaker 2: by the taxes.
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  Speaker 3: I best thirty two million dollars. What happens on the
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  Speaker 3: first death, Well, everything passed to the surviving spouse. Remember
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  Speaker 3: he had a spouse, so that was convenient. So we
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  Speaker 3: had a spouse, no probate, no probate of then just
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  Speaker 3: went off right to the husband, went off right to
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  Speaker 3: the husband. So everything passed to the surviving spouse, and
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  Speaker 3: there was no taxes due, and life went on and again,
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  Speaker 3: no planning, no filing, no claiming portability, no taking advantage
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  Speaker 3: of any of the tax laws, and life went on,
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  Speaker 3: and we wasted all the exemptions for the first spouse,
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  Speaker 3: which was by the way, in twenty twenty three, it
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  Speaker 3: was twelve million, nine twenty Wow. So therefore, the taxes
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  Speaker 3: that were due, approximately seven million, six hundred and thirty
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  Speaker 3: two thousand dollars had to be written to the federal government.
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  Speaker 3: And I don't know what goes on in the state.
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  Speaker 2: Wow.
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  Speaker 3: Okay, Well for folks out there, folks with kids, family,
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  Speaker 3: even a spouse, right that still have not planned and
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  Speaker 3: there are many of you. If you if this couple
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  Speaker 3: had just done basic estate planning and put together a trust. Right,
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  Speaker 3: Let's say they both died in twenty twenty three, just
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  Speaker 3: couldn't live without each other. Thirty two million minus twelve million,
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  Speaker 3: nine to twenty yep, minus twelve million, nine to twenty
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  Speaker 3: Because we did planning, leaves six million, one sixty tax
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  Speaker 3: do two point four million for a savings of five million,
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  Speaker 3: one hundred and sixty eight thousand dollars.
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  Speaker 2: That five million dollars is a voluntary gift to the irs.
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  Speaker 2: A voluntary gift, yea.
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  Speaker 3: It is so, And that could have went to charity,
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  Speaker 3: It could have went I mean anyways, in any event, folks,
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  Speaker 3: the point here is that your states don't have to
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  Speaker 3: be this large, but there's gonna be tax liability that's
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  Speaker 3: so easily saved just doing with just doing basic estate
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  Speaker 3: planning one on one. You don't have to do anything complicated.
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  Speaker 2: Because most people listening at I get thirty two million.
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  Speaker 2: That's just crazy stupid numbers. But if you have four
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  Speaker 2: million or less here in Massachusetts, zero.
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  Speaker 3: You're giving money away, ye So, and again you've got
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  Speaker 3: to keep an eye out and just do your basic
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  Speaker 3: planning and folks, and lastly, a little something about I know,
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  Speaker 3: the taxes but a lot of you don't understand the
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  Speaker 3: difference between per capita and per sturpees. So that's what
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  Speaker 3: the statute was all about. Right, So per kapita means
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  Speaker 3: if you say I leave everything to my three kids
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  Speaker 3: if living per capita, and one dies, then it just
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  Speaker 3: goes two ways to the surviving too, not down. Per
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  Speaker 3: sturpees means if you leave it to your three kids
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  Speaker 3: and you happen to have six grandkids, and one kid
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  Speaker 3: dies and has two kids, then that one kid's third
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  Speaker 3: yep would drop down to that kids to their kids grandkids,
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  Speaker 3: and you don't need to name them. It's already built
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  Speaker 3: in and so you don't have to run around worrying
• 9:49
  Speaker 3: about that stuff. So that's really the difference when you
• 9:51
  Speaker 3: do your drafting in terms of how you leave. And
• 9:54
  Speaker 3: that's exactly a nice lead into the to the guide
• 9:56
  Speaker 3: that's how you leave your assets to your families. Right,
• 10:00
  Speaker 3: make sure you are clear that per capita versus per sturpy,
• 10:04
  Speaker 3: so you're not accidentally disinheriting grandchildren if you didn't mean to.
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  Speaker 3: So folks call and get this guide. It's brand new
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  Speaker 3: for the month. How to leave assets to Beneficiaries eight
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  Speaker 2: You've been listening to Todd Lutsky, a partner with the
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  Speaker 2: more to come when we return to the Legal Exchange
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  Speaker 1: When it comes to leaving assets to your family, simplicity
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  Speaker 1: It may create serious, unintended consequences. In this guide, you'll
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  Speaker 1: be the best plan. The guide also expectans how trusts
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  Speaker 2: Susan Powers, a financial advisor with the Armstrong Advisory Group,
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  Speaker 2: Where are we headed now, Jod.
• 14:06
  Speaker 3: Gonna head over to all Ohio, Ohio. It's an arbitration agreement.
• 14:11
  Speaker 3: But again we're going to learn a lot more than that.
• 14:13
  Speaker 3: So in this case, Ken was a resident of Arbor's
• 14:16
  Speaker 3: nursing home. Prior to entering Arbor's. He was adjudicated incompetent,
• 14:21
  Speaker 3: and a guardian of his person and a conservator of
• 14:24
  Speaker 3: his estate were both appointed. Makes sense. The guardian signed
• 14:30
  Speaker 3: all the admission agreements, including a separate arbitration agreement. Remember,
• 14:35
  Speaker 3: arbitration is to waive a jury right in case something
• 14:38
  Speaker 3: happens to you in the in the nursing from the
• 14:40
  Speaker 3: negligence of the nursing from the negligence. Yes. The next year, Ken,
• 14:46
  Speaker 3: through the guardian and the conservators, sued Arbors for negligence,
• 14:50
  Speaker 3: shocker and related injuries. Arbors filed to have the arbitration
• 14:56
  Speaker 3: agreement apply. Ken of course objected, arguing that the guardian
• 15:01
  Speaker 3: who signed the arbitration agreement did not have authority to
• 15:04
  Speaker 3: enter into that arbitration agreement. The trial court agreed, and
• 15:10
  Speaker 3: Arbors appealed. Not surprised, the appellate court affirmed. The court
• 15:17
  Speaker 3: noted that to the statue, although not clear, said guardians
• 15:23
  Speaker 3: and conservators may be required to enter into contracts on
• 15:27
  Speaker 3: behalf of persons subject to guardianship or conservatorship. Guardians, however,
• 15:33
  Speaker 3: is the power over a person and to consent to
• 15:38
  Speaker 3: medical treatment. A conservator, on the other hand, is the
• 15:42
  Speaker 3: power to defend lawsuits, bring lawsuits, and so forth for
• 15:46
  Speaker 3: the person money side of things. So because the contract
• 15:50
  Speaker 3: was not required for admission to ars big point, and
• 15:55
  Speaker 3: not an agreement for care or medical treatment, guardian really
• 16:00
  Speaker 3: had no authority to sign that arbitration agreement, and therefore
• 16:04
  Speaker 3: the arbitration agreement does not exist.
• 16:07
  Speaker 2: And Todd, why don't you want to go to arbitration?
• 16:11
  Speaker 2: What's the deal with that?
• 16:12
  Speaker 3: So when you go to arbitration, you take yourself out
• 16:15
  Speaker 3: of the jury before your peers of so to speak.
• 16:18
  Speaker 3: I mean, you want twelve people up there feeling your pain,
• 16:24
  Speaker 3: and you don't have that if you're an arbitration So
• 16:28
  Speaker 3: you don't really want to waive that if you don't
• 16:31
  Speaker 3: have to. So that's really what happened here. And I'm
• 16:35
  Speaker 3: of course going to give you some lessons about how
• 16:36
  Speaker 3: to sign and what not to sign when you're getting
• 16:38
  Speaker 3: admitted to a nursing home. But more importantly, I want
• 16:40
  Speaker 3: to really spend some time explaining the differences between arbitrate
• 16:45
  Speaker 3: are between guardianships, conservatorships, powers of attorney, and health care
• 16:52
  Speaker 3: proxies because they are kind of the same thing, but
• 16:57
  Speaker 3: one is more efficient no court involvement. One is not.
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  Speaker 2: I'll take that one, please, right.
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  Speaker 3: And so I think we need to know when to
• 17:04
  Speaker 3: use them and how they work and what they're used for.
• 17:07
  Speaker 3: And I think that's what we're going to come back to.
• 17:09
  Speaker 3: But before I do that, folks, I just want to
• 17:11
  Speaker 3: take a minute and give you this new guide that
• 17:14
  Speaker 3: we're given away for the month, how to leave assets
• 17:18
  Speaker 3: to beneficiaries. Enough about taxes in probate for this month,
• 17:22
  Speaker 3: and more about the family behind the estate plan. You
• 17:26
  Speaker 3: got a special needs child, how do you do that?
• 17:29
  Speaker 3: You've got clients, You've got children that you want to
• 17:31
  Speaker 3: incentivize and make them go to work. And you can
• 17:34
  Speaker 3: put incentive language in a trust. You can have the
• 17:37
  Speaker 3: language distributing over time so that they grow up. You
• 17:40
  Speaker 3: can protect it from divorces. You can do generations skipping
• 17:44
  Speaker 3: language to make sure it's not tax that every generation.
• 17:47
  Speaker 3: What if you have a second marriage, folks, how do
• 17:49
  Speaker 3: you handle both sides of the marriage, And of course
• 17:52
  Speaker 3: the obvious stuff in here. Joint ownership designated beneficiaries all
• 17:56
  Speaker 3: the pitfalls that go with that. The simple approach, folks,
• 18:00
  Speaker 3: family behind the estate plan, get the guide eight six
• 18:04
  Speaker 3: six eight four eight five six nine nine or Legal
• 18:08
  Speaker 3: Exchange Show dot com again eight six six eight four
• 18:12
  Speaker 3: eight five six nine nine or Legal Exchange Show dot com.
• 18:17
  Speaker 3: And for more information go to our Instagram page Cushing
• 18:21
  Speaker 3: Dolan PC. Okay, so we did the facts. What's the lessons?
• 18:29
  Speaker 3: First of all, tips on signing, folks. When you're admitting
• 18:31
  Speaker 3: someone to a nursing home, there's gonna be a lot
• 18:34
  Speaker 3: of paperwork flying around.
• 18:36
  Speaker 2: Big huge stack of paperwork.
• 18:38
  Speaker 3: One thing you don't ever have to sign as an
• 18:41
  Speaker 3: arbitration agreement. They're gonna throw it in front of you.
• 18:43
  Speaker 3: But just know the rule. Just like this said, there
• 18:46
  Speaker 3: was no requirement to enter into an arbitration agreement. So
• 18:51
  Speaker 3: they can throw it in front of you. Just don't
• 18:53
  Speaker 3: sign it, and then you don't have any of this problem.
• 18:56
  Speaker 3: You don't have to worry about whether or not you're
• 18:58
  Speaker 3: waiving your right to a jury trial. It just won't exist.
• 19:03
  Speaker 3: That said, I also understand that there's a lot of
• 19:05
  Speaker 3: emotion at the time you're putting somebody into a nursing home.
• 19:08
  Speaker 3: And so you need to figure out what you're gonna
• 19:11
  Speaker 3: sign and how you're gonna sign it. If you're a
• 19:14
  Speaker 3: healthcare proxy, which we're going to talk about, just sign
• 19:17
  Speaker 3: it as a healthcare proxy, sign everything with HCP after
• 19:20
  Speaker 3: your name, and then you're only making medical decisions and
• 19:25
  Speaker 3: you're not entering into any contracts. And that's the safe.
• 19:28
  Speaker 2: Way what happens Todd If someone which is often very common,
• 19:32
  Speaker 2: someone is your power of attorney and the same person
• 19:35
  Speaker 2: as your healthcare proxy.
• 19:36
  Speaker 3: Well don't after your signature put HCP, not DPA.
• 19:40
  Speaker 2: So even though they also wear the hat is power attorney,
• 19:44
  Speaker 2: they're not wearing that hat.
• 19:45
  Speaker 3: If they put HCP, they're acting as a different under
• 19:49
  Speaker 3: a different sword. To know, no different than if you
• 19:51
  Speaker 3: happen to be the donor of your own trust and
• 19:53
  Speaker 3: trustee of your own trust, then then you could have
• 19:57
  Speaker 3: two roles. Same idea here, But that's a good point
• 20:01
  Speaker 3: for sure. And so here again, if you're going to
• 20:05
  Speaker 3: sign health care proxy, if you're going to sign and
• 20:07
  Speaker 3: you're only the power of attorney, don't do it because
• 20:10
  Speaker 3: a power of attorney could have language in it that
• 20:14
  Speaker 3: allows the binding of a person to a contract yep,
• 20:18
  Speaker 3: so be careful there and again signing it as guardian
• 20:20
  Speaker 3: better than conservator guardian's Okay, so those are the tips.
• 20:25
  Speaker 2: So Todd, you said that in your story that you
• 20:29
  Speaker 2: were talking about the conservator. Excuse me, the guardian was
• 20:33
  Speaker 2: appointed by the court. Yes, So why would you need
• 20:37
  Speaker 2: a guardian if you have a healthcare proxy?
• 20:40
  Speaker 3: Yeah, and that's kind of where we're headed. So let's
• 20:42
  Speaker 3: compare and contrast. So the healthcare proxy becomes effective only
• 20:47
  Speaker 3: when you are not effective. You have to be not
• 20:50
  Speaker 3: able to make your decision. Otherwise the doctor's going to
• 20:54
  Speaker 3: ask you. So. But if you're not able to like,
• 20:57
  Speaker 3: here's the case. So then the healthcare proxy is the
• 20:59
  Speaker 3: power or over the person like a guardian. A guardian
• 21:04
  Speaker 3: is a power over the person. The court explain that.
• 21:06
  Speaker 3: So you have the power to admit somebody to a
• 21:10
  Speaker 3: nursing home and make medical decisions. Power over the person.
• 21:14
  Speaker 3: So if you have a healthcare proxy, that's all you need.
• 21:16
  Speaker 3: Without it, you can't even admit them to a nursing.
• 21:20
  Speaker 2: To stop threatening my husband to check them into the nursing.
• 21:22
  Speaker 3: Yeah, that's not a good idea. Well, you're probably a
• 21:24
  Speaker 3: healthcare per too.
• 21:25
  Speaker 2: So oh, such power right now.
• 21:27
  Speaker 3: All over it. So that's important, right, you can you
• 21:32
  Speaker 3: can do all those things with the healthcare proxy. You
• 21:35
  Speaker 3: don't need the guardianship for that because you have the
• 21:38
  Speaker 3: power and I probably wouldn't do it, but I remember,
• 21:40
  Speaker 3: it doesn't become effective until you're not right. So let's
• 21:44
  Speaker 3: just compare and contrast the conservatorship with the power of attorney. Again.
• 21:49
  Speaker 3: If you have power of attorney a little different. You
• 21:52
  Speaker 3: now have power over the money like a conservator, bank accounts,
• 21:57
  Speaker 3: investment accounts, taking my out writing checks.
• 22:01
  Speaker 2: Do they need to be incompetent to use?
• 22:03
  Speaker 3: And see that's the difference. You could sell real estate
• 22:05
  Speaker 3: by real estate. But power of attorney, Susan, you're right,
• 22:09
  Speaker 3: becomes effective the moment you sign it. Mostly there are
• 22:13
  Speaker 3: certain springing powers of attorney that exist, but most of
• 22:17
  Speaker 3: the time they become effective immediately. They survive your incapacity,
• 22:22
  Speaker 3: So if you later become incapacitated, the power of attorney
• 22:27
  Speaker 3: still works. It works while you're healthy and when you're not,
• 22:31
  Speaker 3: but it ends when you die.
• 22:33
  Speaker 2: Convenience during life when everything's going swimming, and then when
• 22:36
  Speaker 2: you actually.
• 22:37
  Speaker 3: Need it, say you're out of the country and you
• 22:40
  Speaker 3: want your husband to sign something. You don't have to
• 22:42
  Speaker 3: be sick, so it but it doesn't survive your death.
• 22:46
  Speaker 3: So people please don't think that, oh my gosh, I
• 22:49
  Speaker 3: lost a loved one and now I'm going to but
• 22:51
  Speaker 3: I'm still power of attorney. I'm going to go to
• 22:53
  Speaker 3: the bank and change this. So that's the difference. And
• 22:55
  Speaker 3: so the only time you might want to not have
• 22:58
  Speaker 3: the power of attorney if you have but give it up,
• 23:01
  Speaker 3: is if there's fighting going on in the family, and
• 23:03
  Speaker 3: then you probably want the protection of the court when
• 23:07
  Speaker 3: you're making decisions about finance. So I think that's a
• 23:11
  Speaker 3: good set of lessons on these kinds of things, and folks,
• 23:14
  Speaker 3: get the guide learn how to leave your assets to
• 23:17
  Speaker 3: your family in the most efficient way and most effective
• 23:21
  Speaker 3: way for them to get it. Call and get the
• 23:24
  Speaker 3: guide eight six six eight four eight five six ninety
• 23:28
  Speaker 3: nine or Legal Exchange Show dot com again eight sixty
• 23:32
  Speaker 3: six eight four eight five six nine nine or Legal
• 23:36
  Speaker 3: Exchange Show dot com.
• 23:37
  Speaker 2: You've been listening to Todd Lutsky, a partner with the
• 23:40
  Speaker 2: law firm of Cushing and Dolan. I'm Susan Powers, a
• 23:43
  Speaker 2: financial advisor with the Armstrong Advisory Group and Todd will
• 23:47
  Speaker 2: be answering your listener questions when we return to the
• 23:50
  Speaker 2: Legal Exchange with Todd Lutsky.
• 23:52
  Speaker 1: When it comes to leaving assets to your family, simplicity
• 23:56
  Speaker 1: isn't always the best approach. Cushing and Dolan are experts
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• 24:01
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  Speaker 1: learn why leaving assets to your children may not always
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• 24:21
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• 24:39
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• 24:42
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• 24:44
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• 24:46
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• 24:49
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• 24:52
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• 24:53
  Speaker 4: Sudden family emergencies can create confusion, especially when important information
• 24:57
  Speaker 4: is scattered across different accounts. HI this is Mike Armstrong
• 25:00
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• 25:40
  Speaker 1: The proceeding was paid for by Armstrong Advisory Group, a
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• 25:44
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• 25:47
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• 25:54
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• 26:24
  Speaker 1: When it comes to estate planning, many families focus on taxes,
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  Speaker 1: but understanding how your family will receive the assets you
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• 26:36
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  Speaker 1: explains decisions that may be problematic, such as adding a
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  Speaker 1: which could expose your assets to creditors or a possible divorce.
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• 27:08
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• 27:12
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• 27:14
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• 27:17
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• 27:19
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• 27:22
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• 27:25
  Speaker 1: listening to the Legal Exchange and it's time for Ask Todd,
• 27:29
  Speaker 1: the segment where Todd will answer your questions about anything
• 27:32
  Speaker 1: and everything that's included in the estate planning process. Once again,
• 27:36
  Speaker 1: here's Todd Lutsky and Susan Powers.
• 27:40
  Speaker 2: Welcome back, Todd. We have a few questions from listeners.
• 27:43
  Speaker 2: First question comes from David in Framingham, Mass and David writes,
• 27:48
  Speaker 2: my wife and I have an irrevocable trust. This is
• 27:50
  Speaker 2: a mutual client. By the way, this is one of
• 27:52
  Speaker 2: your trusts.
• 27:52
  Speaker 3: Okay, good.
• 27:53
  Speaker 2: We have three kids and we'll leave everything equal to them.
• 27:56
  Speaker 2: We've already transferred our home to the trust, but are
• 27:59
  Speaker 2: unsure of how we should update our retirement account beneficiaries.
• 28:03
  Speaker 2: Should our trust be the beneficiary or our children. I
• 28:06
  Speaker 2: will tell you that they did do divorce proofing as
• 28:09
  Speaker 2: part of their in credit or prediction, and there it.
• 28:13
  Speaker 3: Has that that kind of language credit. It's funny you
• 28:16
  Speaker 3: asked us. I'm actually was just asked at National Academy
• 28:19
  Speaker 3: of Elder Law Attorneys to do a seminar on how
• 28:22
  Speaker 3: to designate beneficiaries of i RAS people, trusts, estate. They
• 28:27
  Speaker 3: didn't even mention the states. I added that, yeah, they're
• 28:30
  Speaker 3: they're debating on trusts and people. I'm like, I'm going
• 28:33
  Speaker 3: to throw a whole nother mix into play here. So yeah,
• 28:37
  Speaker 3: so it's a very common question. That's why I mention it.
• 28:41
  Speaker 3: So in this case, now that I understand that the
• 28:45
  Speaker 3: kind of trust that they have, I would say, depending
• 28:50
  Speaker 3: on how large that retirement account is, is it a
• 28:53
  Speaker 3: decent number of the decent number hundred thousand.
• 28:56
  Speaker 2: Anyway, I know it's it's up there. It's it's least
• 29:00
  Speaker 2: seven or eight hundred, so that's good.
• 29:02
  Speaker 3: So again, when you're talking about that kind of money,
• 29:06
  Speaker 3: remember that's not in the trust currently, so it can't
• 29:09
  Speaker 3: be in the trust currently because of the taxes you'd
• 29:12
  Speaker 3: have to pay if you pulled it out, So you
• 29:14
  Speaker 3: got to leave it. Leave it there. However, when you
• 29:18
  Speaker 3: die and you're leaving assets to your family, which we
• 29:20
  Speaker 3: care about, I probably want that those assets treated the
• 29:25
  Speaker 3: same way I'm treating the assets that are in the trust.
• 29:29
  Speaker 3: So if my trust simply said divide everything equally like
• 29:33
  Speaker 3: it does, but also said, and I know it doesn't hear,
• 29:38
  Speaker 3: but if it's said, pay it outright, because sometimes that's
• 29:41
  Speaker 3: all people want, divide it and give it to the kids.
• 29:44
  Speaker 3: Remember there's no right or wrong answer to these questions.
• 29:47
  Speaker 3: It's just your families. I hate when they asked me,
• 29:50
  Speaker 3: what would you do? That's not me. So in this case,
• 29:56
  Speaker 3: if it said that, I would say, leave the beneficiaries
• 29:59
  Speaker 3: paid out to the kids. Why because it's the same
• 30:02
  Speaker 3: language as the trust. Trust has paid out, paid out.
• 30:07
  Speaker 3: But in this case the family said no, no, no,
• 30:10
  Speaker 3: I want generation skipping tax planning, and I want to
• 30:13
  Speaker 3: protect these assets from future divorces of the children, so
• 30:18
  Speaker 3: they put the protection language in the trust. So if
• 30:23
  Speaker 3: I want the assets in the trust protected, what and
• 30:26
  Speaker 3: I also want my eight hundred thousand dollars IRA treated
• 30:30
  Speaker 3: the same way I would think I would too, So
• 30:33
  Speaker 3: in this case, I would say change the designated beneficiaries
• 30:37
  Speaker 3: on that IRA contingent Obviously, Well, let's assume it's the
• 30:43
  Speaker 3: old way, spouse first, then contingent the trust so that
• 30:48
  Speaker 3: ultimately it gets into the trust so that it can
• 30:52
  Speaker 3: be paid out or not, but protected from divorces for
• 30:56
  Speaker 3: the kids. Now, there's a time where you could maybe
• 30:59
  Speaker 3: depending on how old they are or if they were
• 31:00
  Speaker 3: over seventy three. And again a lot of these things
• 31:03
  Speaker 3: were done before twenty twenty two, so we didn't have
• 31:05
  Speaker 3: this option, but after twenty twenty two we do. It's
• 31:09
  Speaker 3: possible if they're over twenty, if they're over seventy three,
• 31:12
  Speaker 3: which is the required beginning date, they could make the
• 31:15
  Speaker 3: designated beneficiary the trust in the primary position not have
• 31:20
  Speaker 3: to wait for contingent.
• 31:22
  Speaker 2: And they're not. They're not at that stage yet, and
• 31:25
  Speaker 2: they so they're younger so these the IRA is only
• 31:28
  Speaker 2: going to grow between now when the kids inherited, so
• 31:31
  Speaker 2: it could be much larger, very much be doubled, you know.
• 31:33
  Speaker 3: So you definitely in that kind of situation do need
• 31:35
  Speaker 3: to at least make the contingent the beneficiary are there
• 31:39
  Speaker 3: the trust are.
• 31:39
  Speaker 2: Their adverse tax consequences to that time because those kids
• 31:42
  Speaker 2: when they get it or when the trust gets it,
• 31:44
  Speaker 2: you've got that ten year payout rule.
• 31:47
  Speaker 3: So the issue is the ten year payout rule still applies,
• 31:50
  Speaker 3: so the money has to come out of the IRA
• 31:52
  Speaker 3: into the trust over ten years. That's the beneficiary, so
• 31:55
  Speaker 3: that still has to be coming out. If you don't
• 31:58
  Speaker 3: distribute the money out to the kids, it will be
• 32:00
  Speaker 3: taxed at the trust level, so there could be a
• 32:02
  Speaker 3: higher rate. But I also want to protect them from
• 32:05
  Speaker 3: future divorces, so you can play that game every year
• 32:08
  Speaker 3: and make the distribution or not. Okay, but folks, this
• 32:12
  Speaker 3: is exactly what we're talking about in our brand new
• 32:14
  Speaker 3: guide for the month how to leave assets to beneficiaries.
• 32:17
  Speaker 3: This is one idea right divorce proof, credit or protection.
• 32:21
  Speaker 3: It's in there. What if I've just got special needs children,
• 32:24
  Speaker 3: I got to design my trust to have special needs
• 32:27
  Speaker 3: language in there so that they don't lose their governmental benefits.
• 32:30
  Speaker 3: What if I'm not overly concerned about divorce, but just
• 32:33
  Speaker 3: that their maturity is not there, and I want to
• 32:36
  Speaker 3: stagger the distributions over certain ages. I can do that.
• 32:39
  Speaker 3: I can put incentive language in I can you know
• 32:42
  Speaker 3: what about second marriages? Folks? You got to think of
• 32:45
  Speaker 3: these things when you're doing your planning. The family behind
• 32:48
  Speaker 3: the estate plan. Get the new guide how to Leave
• 32:51
  Speaker 3: Assets to your Beneficiaries eight six six eight four eight
• 32:56
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• 32:59
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• 33:03
  Speaker 3: nine nine or Legal Exchange Show dot com. Download it
• 33:07
  Speaker 3: right there and you can also go to our PC
• 33:11
  Speaker 3: and get Cushing Dolant Instagram. It's the word you're here,
• 33:16
  Speaker 3: Cushing Dolan, Cushing Dolan PC.
• 33:19
  Speaker 2: Last question comes from Jennifer in Malden, mass and Jennifer writes,
• 33:23
  Speaker 2: excuse me. I am married and my husband and I
• 33:25
  Speaker 2: have named our only son is beneficiary on all of
• 33:28
  Speaker 2: our accounts except for our home. We are in our
• 33:32
  Speaker 2: mid sixties and our total assets are around two and
• 33:35
  Speaker 2: a half million. Because we only have one child, we
• 33:38
  Speaker 2: are thinking of adding him to our deed so he
• 33:41
  Speaker 2: can avoid probate when we pass away. If we do this,
• 33:45
  Speaker 2: will this remove the need for a trust.
• 33:48
  Speaker 3: So again there's got two questions. I think. One, they're
• 33:52
  Speaker 3: talking about beneficiaries that they put on the counts, which
• 33:56
  Speaker 3: I guess is each other and their kid yep, And
• 34:00
  Speaker 3: that could be for all accounts, it doesn't have to
• 34:02
  Speaker 3: just be ira, that's what it looks like. And then
• 34:05
  Speaker 3: they have this house in order to avoid probate for that,
• 34:09
  Speaker 3: they want to put the kid's name on as like
• 34:10
  Speaker 3: a joint owner.
• 34:11
  Speaker 2: I'm guessing in their mid sixties. The current value of
• 34:15
  Speaker 2: the estate in their Massachusetts is two and a half million,
• 34:18
  Speaker 2: so that will only continue to grow as well as they.
• 34:20
  Speaker 3: Age, right, so that's going to go up. And so
• 34:22
  Speaker 3: over time we're looking at this being you know, could
• 34:25
  Speaker 3: be approaching the three four million dollar range, which is
• 34:29
  Speaker 3: what married couples can shelter if you plan. And so
• 34:34
  Speaker 3: I would say you're missing out on a lot here, folks.
• 34:36
  Speaker 3: A couple of things. One obviously, yes, if you want
• 34:39
  Speaker 3: to avoid probate the simple way, you can just put
• 34:42
  Speaker 3: the beneficiaries on, but not for your house. If you
• 34:45
  Speaker 3: put your if you put the house half in your
• 34:47
  Speaker 3: kid's name. Yeah, you have to avoid probate, but boy,
• 34:50
  Speaker 3: what have you done. You've you've given a half half
• 34:52
  Speaker 3: a step up and basis gone. You've exposed it to
• 34:56
  Speaker 3: the kids, creditors today, divorces. I mean, these are all
• 35:00
  Speaker 3: things that you don't want to do. What you want
• 35:02
  Speaker 3: to sell your house now, you need your kid's permission
• 35:05
  Speaker 3: to sign off to those issues with.
• 35:07
  Speaker 2: That because they'd have to give it back to you
• 35:09
  Speaker 2: with a haircut for gains.
• 35:11
  Speaker 3: Yeah, I think you got all these problems. So so
• 35:14
  Speaker 3: I mean, just to avoid probate on my house, I'm
• 35:17
  Speaker 3: not going to put my kid's name on it, so
• 35:19
  Speaker 3: to me, that's not really an option to avoid probate.
• 35:23
  Speaker 3: But setting all that aside, which is certainly problems. But
• 35:26
  Speaker 3: you know, the quick answer is, yes, you can avoid
• 35:28
  Speaker 3: probate with these things. The downside is now again they
• 35:31
  Speaker 3: only have one child, right, yes, so you don't have
• 35:33
  Speaker 3: to worry about disinheriting people. But when you start putting
• 35:35
  Speaker 3: beneficiaries on accounts, if you don't make them all equal
• 35:38
  Speaker 3: and you have multiple kids, you could accidentally be disinheriting
• 35:42
  Speaker 3: kids that you mean to. So I get it. They
• 35:44
  Speaker 3: don't have that in this case. But folks, a lot
• 35:46
  Speaker 3: of you don't just have one kid, so got to
• 35:48
  Speaker 3: be careful with that. Again, all this stuff about avoiding
• 35:52
  Speaker 3: probate aside, these people also have state tax problems, right,
• 35:56
  Speaker 3: You're not going to shelter any assets from a state
• 35:59
  Speaker 3: taxes is if you leave everything to your spouse and
• 36:01
  Speaker 3: then to your kid, because you know, if you die
• 36:03
  Speaker 3: with four million dollars, because as you said, Susan, this
• 36:05
  Speaker 3: could grow.
• 36:06
  Speaker 2: Yeah, let's say it's five million when they die.
• 36:08
  Speaker 3: So if they died when it was five million, and
• 36:11
  Speaker 3: you didn't do any planning, but you avoided probate because
• 36:14
  Speaker 3: you did this quick fix, then everything would go to
• 36:17
  Speaker 3: the surviving spouse at five million figure minus two million
• 36:21
  Speaker 3: is three million. You know you're going to hit that.
• 36:24
  Speaker 3: You got to be you know, even if it was
• 36:25
  Speaker 3: ten percent, but at the highest sixteen percent. You know,
• 36:28
  Speaker 3: but even at even at ten percent, three hundred thousand,
• 36:31
  Speaker 3: I think it's going to be more than that. I
• 36:33
  Speaker 3: think you're closer to thirteen percent. So you know, you're
• 36:37
  Speaker 3: looking at three fifty Yeah, four hundred thousand dollars. So
• 36:40
  Speaker 3: that's what's built in. Whereas if you do your planning
• 36:43
  Speaker 3: and you can shelter four million. You won't have that problem, folks. Again,
• 36:47
  Speaker 3: not just taxes, but here how to leave your assets
• 36:50
  Speaker 3: beneficiaries not the way to go learn Get the guide
• 36:53
  Speaker 3: eight six six eight four eight five six nine nine
• 36:57
  Speaker 3: or Legal Exchange Show dot com again eight six six
• 37:01
  Speaker 3: eight four eight five six nine to nine or Legal
• 37:05
  Speaker 3: Exchange Show dot com and you can download the guide
• 37:08
  Speaker 3: right there.
• 37:09
  Speaker 2: If you have a question you would like to ask Todd,
• 37:11
  Speaker 2: visit his website Legal Exchange Show dot com and click
• 37:15
  Speaker 2: on the ask Tod tab. Maybe I'll be able to
• 37:17
  Speaker 2: read your question on the air, and hopefully his answer
• 37:20
  Speaker 2: will stop you from becoming one of his next real
• 37:23
  Speaker 2: life stories. You've been listening to Todd Lutsky, a partner
• 37:26
  Speaker 2: with the law firm of Cushing and Dolan. I'm Susan Powers,
• 37:30
  Speaker 2: a financial advisor with the Armstrong Advisory Group, and we'll
• 37:33
  Speaker 2: be back with more after this quick break on the
• 37:36
  Speaker 2: Legal Exchange with Todd Lutsky.
• 37:39
  Speaker 1: When it comes to leaving assets to your family, simplicity
• 37:43
  Speaker 1: isn't always the best approach. Cushing and Dolan are experts
• 37:46
  Speaker 1: in other law, and their new guide is called how
• 37:48
  Speaker 1: to Leave Assets to beneficiaries. Adding children as joint donors
• 37:52
  Speaker 1: on accounts or property doesn't guarantee you can avoid probate.
• 37:55
  Speaker 1: It may create serious unintended consequences. In this guide, you'll
• 37:59
  Speaker 1: learn widly having assets to your children may not always
• 38:02
  Speaker 1: be the best plan. The guide also explains how trusts
• 38:04
  Speaker 1: can be used to stagger distributions over time, help protect
• 38:08
  Speaker 1: assets from creditors or divorce, and ensure your family receives
• 38:11
  Speaker 1: your inheritance in a way that makes sense for your
• 38:13
  Speaker 1: personal situation. Call eight six six eight four eight five
• 38:17
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• 38:19
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• 38:22
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• 38:26
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• 38:29
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• 38:31
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• 38:33
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• 39:08
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• 39:10
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• 39:16
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• 39:22
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• 39:39
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• 39:42
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• 39:44
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• 39:47
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• 40:40
  Speaker 1: Your tune to the Legal Exchange with Todd Lutsky. If
• 40:43
  Speaker 1: you are a loved one needs a nursing homestay. Call
• 40:46
  Speaker 1: Todd right now at eight six six eight four eight
• 40:48
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• 40:51
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• 40:54
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• 40:57
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• 40:59
  Speaker 2: Welcome back into the Legal Exchange with Todd Lutsky. I'm
• 41:02
  Speaker 2: Susan Powers, a financial advisor with the Armstrong Advisory Group,
• 41:06
  Speaker 2: and I'm joined, of course by Todd Lutsky, a partner
• 41:08
  Speaker 2: with a law firm of Cushing and Dolan with a
• 41:11
  Speaker 2: master's in taxation. Todd, your guide this month is all
• 41:15
  Speaker 2: about the best way to leave assets to beneficiary. Yes,
• 41:19
  Speaker 2: and I think that for a lot of people we
• 41:22
  Speaker 2: talk about, you know, the family behind the estate plan.
• 41:26
  Speaker 2: I know for a lot of my clients they're concerned
• 41:29
  Speaker 2: about a daughter in law or a son in law.
• 41:34
  Speaker 2: They've worked hard to create this wealth for themselves and
• 41:38
  Speaker 2: they want to make sure it's going to be left
• 41:40
  Speaker 2: to their kids and not have their kids get divorced
• 41:44
  Speaker 2: right after they receive their inheritance and have their ex
• 41:46
  Speaker 2: wife go spend it on their new family. They want
• 41:49
  Speaker 2: to keep it in the blood line, and I think
• 41:54
  Speaker 2: it becomes clear. Like I know, I met with a
• 41:56
  Speaker 2: client last week and we did some planning. They were surprised.
• 42:00
  Speaker 2: They're pretty conservative and frugal. They were surprised by what
• 42:05
  Speaker 2: the projection was saying they were going to have left
• 42:07
  Speaker 2: on the table at the end of the day. So
• 42:10
  Speaker 2: it was a lot more than they expected to because
• 42:13
  Speaker 2: they just don't spend down the hall.
• 42:14
  Speaker 3: I see, I didn't know I was thinking about something.
• 42:17
  Speaker 2: So the inheritance will be bigger, substantially more than they
• 42:20
  Speaker 2: thought it was going to be for their kids.
• 42:22
  Speaker 3: Got it.
• 42:23
  Speaker 2: And they looked at that number and they said, how
• 42:25
  Speaker 2: do we protect that from divorce?
• 42:28
  Speaker 3: Well, yeah, that's another said another objective, Todd.
• 42:32
  Speaker 2: So they're going to come see you. But I realized
• 42:35
  Speaker 2: that a lot of people don't realize that they can
• 42:38
  Speaker 2: actually divorce, proof and credit or protect their beneficiary's inheritance.
• 42:43
  Speaker 2: How do you actually accomplish that?
• 42:45
  Speaker 3: So when you set these trusts up and it says
• 42:50
  Speaker 3: upon the death of the survivor, and.
• 42:52
  Speaker 2: That's whether it's irrevocable or revocable. Right when mom and
• 42:55
  Speaker 2: dad do their basic planning.
• 42:57
  Speaker 3: It's irrevocable, irrevocable, it's I set up gifting truck the
• 43:00
  Speaker 3: same way irrevocable life insurance trust. It doesn't matter. This
• 43:03
  Speaker 3: is the death party. So all trusts are created equal
• 43:06
  Speaker 3: after you're dead, okay, so to speak, and so you
• 43:11
  Speaker 3: know it says, let's say equally to my three kids.
• 43:15
  Speaker 3: And let's say we put you know, Tim on as trustee.
• 43:19
  Speaker 3: And again you don't need three kids, right, and you
• 43:25
  Speaker 3: put them on and you have language that says, you know,
• 43:30
  Speaker 3: three buckets equally funded, and you can make manage the money,
• 43:36
  Speaker 3: invest the money, but you can't rob Peter to pay Paul.
• 43:39
  Speaker 2: Okay, So mom and dad die, three accounts are open
• 43:44
  Speaker 2: to receive a share for each of the kids in
• 43:47
  Speaker 2: this case.
• 43:47
  Speaker 3: Yes.
• 43:48
  Speaker 2: So now there's money that goes into these trusts. What
• 43:52
  Speaker 2: happens with the money within the trust?
• 43:54
  Speaker 3: Okay? So so now we've got them equally treated. Remember,
• 43:58
  Speaker 3: we don't want any fighting to fund the bucket, so
• 44:00
  Speaker 3: we actually put real estate in there too. We say, look,
• 44:02
  Speaker 3: sell the property or buy each other out, so there's
• 44:04
  Speaker 3: never any fighting, even over real estate.
• 44:06
  Speaker 2: Okay.
• 44:06
  Speaker 3: So now you've managed to create these three buckets and
• 44:09
  Speaker 3: fund them equally, and the kids are not mad at
• 44:10
  Speaker 3: each other And another point to remember is they can't
• 44:13
  Speaker 3: rob Peter to pay Paul.
• 44:14
  Speaker 2: So what do you mean by that?
• 44:15
  Speaker 3: So you can't Let's say you have one child as trustee.
• 44:19
  Speaker 3: That child cannot take money from another child's bucket and
• 44:22
  Speaker 3: put it in his own, okay, so that you don't
• 44:25
  Speaker 3: have to worry about that. So none of these things matter.
• 44:27
  Speaker 2: So is it the trustee of your trust? So who
• 44:30
  Speaker 2: you select to be the trustee when you pass? Is
• 44:33
  Speaker 2: that the person that's in charge of these three pockets?
• 44:35
  Speaker 3: Well they're managing and investing them, yes, okay, but remember
• 44:39
  Speaker 3: the other kids could talk to them and say, in
• 44:41
  Speaker 3: my bucket, I'd like you to buy this. Sure, I
• 44:43
  Speaker 3: mean he shouldn't mind. It's not his money. Remember it's
• 44:46
  Speaker 3: that child's money only. Okay, So again trying to keep
• 44:50
  Speaker 3: it so there's no fighting m And then we get
• 44:53
  Speaker 3: to talk a little bit about how they get it.
• 44:55
  Speaker 2: Yeah.
• 44:56
  Speaker 3: I think that was the only thing that we didn't Yeah,
• 44:59
  Speaker 3: we didn't talk about yet. So now it's in the buckets.
• 45:02
  Speaker 3: How do we get it? But folks, before I tell
• 45:04
  Speaker 3: you how to get it, I want you to get
• 45:06
  Speaker 3: the guide to learn how to leave your assets to beneficiaries.
• 45:09
  Speaker 3: So you can learn how they get it, but do
• 45:11
  Speaker 3: it understand that the family behind the estate plan is
• 45:15
  Speaker 3: really the most important part. If you've got a second marriage,
• 45:18
  Speaker 3: how are you going to leave your assets? You've got
• 45:20
  Speaker 3: a special needs child, You've got to have certain language
• 45:23
  Speaker 3: in the trust. You know, you have rental property, you
• 45:25
  Speaker 3: got to think about an LLC. You have, you know,
• 45:29
  Speaker 3: children who you just want to become more mature over time,
• 45:32
  Speaker 3: Stagger the distributions over certain ages.
• 45:35
  Speaker 4: Yeah.
• 45:35
  Speaker 3: It also talks about joint ownership and beneficiaries and tells
• 45:39
  Speaker 3: you all the negatives and pros and cons that go
• 45:41
  Speaker 3: with that. So from simple to more complicated leaving of assets,
• 45:47
  Speaker 3: call and get the guide eight six six eight four
• 45:50
  Speaker 3: eight five six nine nine or Legal Exchange Show dot
• 45:54
  Speaker 3: com How to leave assets to your Beneficiaries eight six
• 45:58
  Speaker 3: six eight four eight five six nine nine or Legal
• 46:02
  Speaker 3: Exchange Show dot com and go to our Instagram page
• 46:06
  Speaker 3: Cushing doan PC for more information.
• 46:09
  Speaker 2: So, Todd, let's say my parents set this up and
• 46:12
  Speaker 2: I'm serving as the trustee for my brother and sister.
• 46:15
  Speaker 2: I can serve as the trustee for myself as well.
• 46:20
  Speaker 3: You can, Okay, yes, you can serve as what we
• 46:23
  Speaker 3: call the general trustee.
• 46:25
  Speaker 2: Okay.
• 46:25
  Speaker 3: So the general trustee is managing investing.
• 46:28
  Speaker 2: Okay, and no restrictions as to what I can buy.
• 46:31
  Speaker 2: I can buy investments, I can buy real estate if
• 46:34
  Speaker 2: they want to buy a new house, rental properties, only
• 46:37
  Speaker 2: they're trust and so forth.
• 46:39
  Speaker 3: Yes, say one of the siblings comes to you and says,
• 46:41
  Speaker 3: I really want to buy a beach house down in Florida. Okay,
• 46:45
  Speaker 3: in your bucket. Yeah, if you have the money, we'll
• 46:47
  Speaker 3: buy it in your bucket.
• 46:48
  Speaker 2: Okay. Perfect. So what if what if my brother comes
• 46:51
  Speaker 2: to me and says, hey, great on the investments in
• 46:55
  Speaker 2: the house, but I want a really sweet ride, I
• 46:58
  Speaker 2: want to buy a car. Do I write him a
• 47:02
  Speaker 2: check to get that money out? How does that work?
• 47:04
  Speaker 2: How do they do they get put it in their pocket?
• 47:07
  Speaker 3: So, as we said, the trustee of the general trustee
• 47:09
  Speaker 3: in this case, Tim is managing and investing everything. But
• 47:14
  Speaker 3: none of the kids, including Tim, cannot take money out
• 47:17
  Speaker 3: of their own bucket and give it to themselves. So
• 47:20
  Speaker 3: they cannot do that. But we also don't want the
• 47:24
  Speaker 3: kids pitted against each other. Could you sure? You could
• 47:27
  Speaker 3: have one make trustee for the other. But it's not
• 47:30
  Speaker 3: as good I think you're better off allowing all the
• 47:34
  Speaker 3: kids to pick an independent trustee. But they don't have
• 47:37
  Speaker 3: to it, can just let let Tim do it. Usually
• 47:40
  Speaker 3: they don't care. There's not usually three independent trustees.
• 47:43
  Speaker 2: So Tim is serving is this independent trust?
• 47:45
  Speaker 3: No, Tim is serving as general trustee?
• 47:47
  Speaker 2: Okay, so in this but you're adding more players. I'm
• 47:50
  Speaker 2: the trustee for me, myself and my brothers brok who
• 47:54
  Speaker 2: is this general trustee? You're talking about independent, the independent
• 47:58
  Speaker 2: trust So the independent trust the you guys pick trustee.
• 48:02
  Speaker 2: You could pick an accountant, a lawyer, anybody not related
• 48:06
  Speaker 2: or subordinate. Okay, So I picked you because I want
• 48:08
  Speaker 2: to make you work for me. Okay, find pleasure in
• 48:10
  Speaker 2: that making you help me be the boss?
• 48:13
  Speaker 3: What else is now?
• 48:14
  Speaker 2: So you're working for me as the independent trustee? Does
• 48:18
  Speaker 2: that mean you write the check to my brother?
• 48:20
  Speaker 3: So it means I authorize the distribution. So your brother
• 48:24
  Speaker 3: would say, I need a new car or a happily
• 48:27
  Speaker 3: married couple, we need to take a family vacation, watch
• 48:30
  Speaker 3: some extra money college college. And they give the independent
• 48:36
  Speaker 3: trustee the power to remove or the power to distribute
• 48:41
  Speaker 3: or not. And it's a sole discretionary power.
• 48:46
  Speaker 2: So you don't really have a motivation to say no,
• 48:48
  Speaker 2: I don't to my brother or my sister, or to
• 48:50
  Speaker 2: me for that matter. But what happens if my brother
• 48:53
  Speaker 2: comes to me and says bad news, my wife just
• 48:56
  Speaker 2: filed for divorce.
• 48:58
  Speaker 3: So here's where the benefit comes in. The benefit is,
• 49:01
  Speaker 3: of course, if there's you know, three million dollars in
• 49:04
  Speaker 3: that bucket and they want one point five, because that's
• 49:07
  Speaker 3: fifty percent, we simply you would simply say, well, you
• 49:11
  Speaker 3: have to ask Todd or whoever the independent trustee is.
• 49:14
  Speaker 3: And of course the answer is going to be no,
• 49:16
  Speaker 3: because I have sole discretion to make a distribution. But
• 49:20
  Speaker 3: better than that, remember you don't whoever. That bucket was
• 49:24
  Speaker 3: never owned. That three million dollars was owned by your brother. Yeah,
• 49:28
  Speaker 3: it was owned by the trust and therefore it's not
• 49:30
  Speaker 3: a marital asset to begin with. So you know, technically
• 49:35
  Speaker 3: I would just tell the other lawyer you can't even
• 49:37
  Speaker 3: ask me because it's just not a marital asset, so
• 49:42
  Speaker 3: it's not really subject to the divorce.
• 49:44
  Speaker 2: So you stay married. You guys are enjoying the money.
• 49:47
  Speaker 2: No must no fuss what happens when my brother dies.
• 49:50
  Speaker 2: What happens to his bucket?
• 49:51
  Speaker 3: If it hasn't been distributed out yet. It's not included
• 49:54
  Speaker 3: in his estate for estate tax purposes. So we're winning
• 49:57
  Speaker 3: on that front. And it passes down to the grandkids.
• 50:00
  Speaker 3: And one last thing at stay tax free and credit
• 50:03
  Speaker 3: or protected. Nice and don't forget. We give the kids
• 50:06
  Speaker 3: the power to remove and replace the independent trustee, so
• 50:09
  Speaker 3: you don't have to worry kids about not getting money
• 50:11
  Speaker 3: or having some curmudgeon trustee.
• 50:13
  Speaker 2: You better be nice to my kid.
• 50:14
  Speaker 3: That's it, folks. It really is a wonderful way to
• 50:19
  Speaker 3: receive assets the way we just describe it, but there's
• 50:21
  Speaker 3: many other ways to leave assets to your children. Call
• 50:24
  Speaker 3: and get the guide eight six six eight four eight
• 50:28
  Speaker 3: five six ninety nine or Legal Exchange Show dot com
• 50:32
  Speaker 3: How to Leave Assets to your Beneficiaries eight six six
• 50:37
  Speaker 3: eight four eight five six ninety nine or Legal Exchange
• 50:41
  Speaker 3: Show dot com and download it right there.
• 50:44
  Speaker 2: Todd Lutsky from the law firm of Cushing and Dolan,
• 50:46
  Speaker 2: thank you so much.
• 50:47
  Speaker 3: Thank you, Susan. Always a pleasure.
• 50:49
  Speaker 2: I'm Susan Powers, a financial advisor with the Armstrong Advisory Group.
• 50:53
  Speaker 2: We thank you for joining us today and we'll be
• 50:55
  Speaker 2: back again next week on the Legal Exchange with Todd Lutsky.
• 51:00
  Speaker 1: When it comes to leaving assets to your family, simplicity
• 51:03
  Speaker 1: isn't always the best approach. Cushing and Dolan are experts
• 51:06
  Speaker 1: in other law, and their new guide is called How
• 51:08
  Speaker 1: to Leave Assets to Beneficiaries. Adding children as joint donors
• 51:12
  Speaker 1: on accounts or property doesn't guarantee you can avoid probate.
• 51:15
  Speaker 1: It may create serious unintended consequences. In this guide, you'll
• 51:19
  Speaker 1: learn why leaving assets to your children may not always
• 51:22
  Speaker 1: be the best plan. The guide also explains how trusts
• 51:25
  Speaker 1: can be used to stagger distributions over time, help protect
• 51:28
  Speaker 1: assets from creditors or divorce, and ensure your family receives
• 51:31
  Speaker 1: your inheritance in a way that makes sense for your
• 51:34
  Speaker 1: personal situation. Call eight six six eight four eight five
• 51:37
  Speaker 1: six ninety nine right now and ask for your free
• 51:39
  Speaker 1: guide How to Leave Assets to Beneficiaries. That's eight six
• 51:43
  Speaker 1: six eight four eight five six nine nine, or requested
• 51:46
  Speaker 1: online at Legal exchange show dot com. The proceeding is
• 51:49
  Speaker 1: paid for and the views expressed are solely those of
• 51:51
  Speaker 1: Cushing and Dolan. Cushing and Dolan and or Armstrong Advisory
• 51:54
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