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One Mistake Can Cost Your Family Everything · The Legal Exchange

• 0:01
  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
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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, Tod Lutsky and Susan Powers.
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  Speaker 2: Welcome into the Legal Exchange with Toddletsky. I'm Susan Powers,
• 0:41
  Speaker 2: a financial advisor with the Armstrong Advisory Group, and I'm
• 0:45
  Speaker 2: joined by Todd Lutsky, a partner with the law firm
• 0:47
  Speaker 2: of Cushing and Dolan with a master's in taxation. Welcome Todd,
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  Speaker 2: How are you never better?
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  Speaker 3: In you?
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  Speaker 2: I am great? Thank you? What do you have for
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  Speaker 2: us this week other than the end of yet another month?
• 1:00
  Speaker 3: I can't believe it. Yeah, it's unbelievable. How flying by
• 1:03
  Speaker 3: but hopefully warm weather is around the corner. Two cases today,
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  Speaker 3: both from my home state of Ohio, so we get
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  Speaker 3: to go back in time twice. So this Ohio Appellate
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  Speaker 3: Court case both ohiopelled court cases. The first one deals with,
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  Speaker 3: you know, how federal law actually trump's state law. So
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  Speaker 3: it's a divorced situation, a decree that was set up
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  Speaker 3: and then some of the one of the divorced people
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  Speaker 3: didn't follow the beneficiary change requirements that were laid out
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  Speaker 3: in the decree, and one of them is a VA
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  Speaker 3: veterans benefit and if you don't do it, what law
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  Speaker 3: applies federal VA trumping state law or not. So interesting
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  Speaker 3: to see how this plays out. But again, I think
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  Speaker 3: we're going to learn a lot more or from this case,
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  Speaker 3: because what does it tell me how to leave assets
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  Speaker 3: to beneficiaries when you get a divorce or you then
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  Speaker 3: have a second marriage, which is exactly what happened here.
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  Speaker 3: After they got divorced, one of them got remarried, and
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  Speaker 3: of course that's when the problems start. Sure, so folks,
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  Speaker 3: I'll walk you through that whole situation and learn what
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  Speaker 3: not to do there. Then we head over to another
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  Speaker 3: Ohio Pellet Court case. Now, this one's interesting. It's really
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  Speaker 3: about a bad lawyer, And we don't care about the
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  Speaker 3: bad lawyer part as much as we care about what
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  Speaker 3: we can learn from this case, because it was all
• 2:37
  Speaker 3: about someone who got sick, had a stroke, and then
• 2:41
  Speaker 3: they went to a lawyer and the lawyer suggested some
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  Speaker 3: last minute planning with an irrevocable trust and getting a
• 2:46
  Speaker 3: waiting period running and then never funding the trust rout row.
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  Speaker 3: I mean, that's a problem. So and I'm going to
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  Speaker 3: explain the importance of you know, last minute planning versus
• 3:00
  Speaker 3: you know, advanced planning, and they're really big differences and
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  Speaker 3: big savings when it comes to money as well. So
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  Speaker 3: a very interesting case there. So both of them, I think,
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  Speaker 3: are really going to help us learn a lot of lessons,
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  Speaker 3: and most of them deal with this idea at the end,
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  Speaker 3: how are we going to leave the assets to the family,
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  Speaker 3: And of course by protecting them, there's more left to
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  Speaker 3: be available to the family. So folks, it's not always
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  Speaker 3: about taxes and probate, but the family behind the estate plan.
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  Speaker 3: What if you've got a second marriage like we have
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  Speaker 3: in one of these cases, We're going to have to
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  Speaker 3: talk about that. How do you change your plans? How
• 3:35
  Speaker 3: do you update your estate plan? What if you want
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  Speaker 3: to you know, stagger distribution so your kids don't get
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  Speaker 3: it all at once, or or skip generations for tax savings,
• 3:44
  Speaker 3: or divorce proof it, or I've got a special needs trust. Folks,
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  Speaker 3: there's so many things to think about when you're leaving
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  Speaker 3: assets to the family, and the neat part about it
• 3:53
  Speaker 3: is they're all different for every one of you. So
• 3:56
  Speaker 3: have your situation in play. Get the guide and learn
• 3:59
  Speaker 3: where you fit into this fact pattern eight six six
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  Speaker 3: eight four eight five six nine nine or Legal Exchange
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  Speaker 3: Show dot com again eight six six eight four eight
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  Speaker 3: five six nine nine or Legal Exchange Show dot com.
• 4:15
  Speaker 3: Or go to our Instagram page Cushing Dolan PC for
• 4:19
  Speaker 3: more information. Okay, first, we said we're going to deal
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  Speaker 3: with this federal versus state law. So John and Martha
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  Speaker 3: keep the names familiar here because there's a similar name.
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  Speaker 3: John and Martha divorced in two thousand and five. The
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  Speaker 3: divorce decree indicated that Martha was to maintain a I'm
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  Speaker 3: sorry that Martha was to remain as a beneficiary on
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  Speaker 3: John's veterans life insurance policy and his survivor benefits from work,
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  Speaker 3: so and which was but basically was the military? Probably
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  Speaker 3: pension for yeah, yeah, and I think his work was
• 5:01
  Speaker 3: the military. Well, needless to say. Later on John Mary's
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  Speaker 3: again a woman named Marsha just to make it confusing
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  Speaker 3: with Martha, so they marry Marsha. John then dies in
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  Speaker 3: twenty twenty, and Marcia was named designated beneficiary on the
• 5:20
  Speaker 3: Marcia not Martha second wife. Marcia was named designated beneficiary
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  Speaker 3: on the life insurance policy. Martha never was named designated
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  Speaker 3: beneficiary on the survivorship plan following the divorce, leaving Marsha
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  Speaker 3: the designated beneficiary on that account as well.
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  Speaker 2: How do you not ask for proof?
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  Speaker 3: Stay with me here, don't jump ahead there, you're going
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  Speaker 3: a little too fast.
• 5:46
  Speaker 2: I'm jumping ahead. My mind's fast.
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  Speaker 3: So so, okay, that's the problem. She's now Martha is
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  Speaker 3: now not on the life insurance or on the survivorship plan.
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  Speaker 3: So Martha, who's seemingly out, sues Marsha to require the
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  Speaker 3: divorce decree to be honored and that she be named
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  Speaker 3: as designated beneficiary on both accounts. Well, turns out that
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  Speaker 3: there's a federal presumption statue of preemption statute the life
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  Speaker 3: insurance policy had a non assignment and non attachment clauses
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  Speaker 3: attached to it, governed by the service Member's Participation Act,
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  Speaker 3: which preempts state law, including the divorce decree. H that
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  Speaker 3: doesn't sound good for Martha. While the ruling basically they
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  Speaker 3: argued that John fraudulently did not change and maintain the
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  Speaker 3: designated beneficiaries, therefore misleading the court. The court said, well, Martha,
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  Speaker 3: Susan wade ah ahead of me on this. Martha, you
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  Speaker 3: could have requested proof of designated beneficiaries and on the
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  Speaker 3: decree as the decree required to provide an annual proof
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  Speaker 3: of update of the designated beneficiaries. But Martha, you never
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  Speaker 3: asked for them.
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  Speaker 2: You're going to trust the ex husband, Martha.
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  Speaker 3: Come on, shame on you, Martha for not asking. Therefore,
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  Speaker 3: Marsha gets summary judgment and wins the case. So second
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  Speaker 3: wife wins over first wife in this case.
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  Speaker 2: And that's probably what she was going to live on
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  Speaker 2: because her alimony probably ran out when he died. That's
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  Speaker 2: probably true.
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  Speaker 3: So so not a good good result. But again, what
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  Speaker 3: do we learn here? Tips right, that's what we're all about,
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  Speaker 3: you know, you know, it's it's really, you need a
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  Speaker 3: good divorce attorney to know these issues. So when you're
• 7:45
  Speaker 3: when you're separating assets and property, you need a good
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  Speaker 3: divorce attorney, just like you need a good tax lawyer
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  Speaker 3: when you're doing estate planning. I mean, it's it's that simple,
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  Speaker 3: But this really is all about when should I be
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  Speaker 3: updating my estate planning documents? Right?
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  Speaker 1: Yep?
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  Speaker 3: Always check your designated beneficiaries four oh one k's iras,
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  Speaker 3: life insurance pension plans. Check who's listed, especially after a
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  Speaker 3: divorce or a death of a spouse. These are all
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  Speaker 3: things to think about when you should update your state
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  Speaker 3: plan divorce or death. Make sure they're updated. Now, there
• 8:24
  Speaker 3: are revocation statutes on divorce, but don't rely on them.
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  Speaker 3: Obviously you could have something come up that your situation
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  Speaker 3: doesn't apply. These automatic revocation statutes which some states have
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  Speaker 3: that say upon divorce you you know you're the ex
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  Speaker 3: spouse is automatically revoked and out. They're good, but they're
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  Speaker 3: not to be relied on. Also, folks after a death
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  Speaker 3: or a divorce or even if and I had this
• 8:53
  Speaker 3: recently where someone calls and says he's my husband's diagnosed
• 8:56
  Speaker 3: with early dementia and it's getting You know, he's okay,
• 8:59
  Speaker 3: but I really don't want him serving as my health
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  Speaker 3: care proxy and my power of attorney, so my personal
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  Speaker 3: representative on the will, I want to change my basic documents.
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  Speaker 3: So always change your basic documents and add a new
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  Speaker 3: primary after a death or a dementia diagnosis, and a
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  Speaker 3: new alternate. Those always should be updated. And remember, if
• 9:23
  Speaker 3: you were married and you had a trust, a lot
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  Speaker 3: of the trust that you the old trust that you
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  Speaker 3: had is tied to a spouse, has tax formulas and
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  Speaker 3: funding formulas. Taking care of a spouse, you can't just
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  Speaker 3: use that trust. You need a new trust. And even
• 9:40
  Speaker 3: if you die and you have that kind of a
• 9:42
  Speaker 3: trust set up, the word spouse in there could include
• 9:45
  Speaker 3: a new spouse if you remarry, so you want to rent.
• 9:48
  Speaker 3: You probably want to redo your trust if you lose
• 9:52
  Speaker 3: your spouse and have a single person trust. And there's
• 9:56
  Speaker 3: so many other things to think about. Even where you
• 9:58
  Speaker 3: are vocable trust folks, you can change. All of this
• 10:02
  Speaker 3: is important because you want to make sure that your
• 10:05
  Speaker 3: estate plan leaves the assets to who you want, when
• 10:08
  Speaker 3: you want, why you want, how you want. Get the
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  Speaker 3: guide it tells you how to do that. Eight six
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  Speaker 2: You've been listening to Todd Lutsky, a partner with the
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  Speaker 2: law firm of Cushing and Dolan. I'm Susan Power as
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  Speaker 2: a financial advisor with the Armstrong Advisory Group, and Todd
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  Speaker 2: will be answering your listener questions when we return to
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  Speaker 2: the Legal Exchange with Todd Lutsky.
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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: learn why leaving assets to your children may not always
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  Speaker 1: be the best plan. The guide also explains how trusts
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  Speaker 1: can be used to stagger distributions over time, help protect
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  Speaker 1: assets from creditors or divorce, and ensure your family receives
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  Speaker 2: Welcome back into the Legal Exchange with Todd Ltsky. I'm
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  Speaker 2: Susan Powers, a financial advisor the Armstrong Advisory Group, and
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  Speaker 2: I'm joined by Todd Letsky, a partner with the law
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  Speaker 2: firm of Cushing and Dolan with a master's in taxation,
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  Speaker 2: staying in Ohio, feeling young.
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  Speaker 1: I am in your.
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  Speaker 3: Youth, back in the Buckeye State, as they say, if
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  Speaker 3: you're an Ohio State fan. So let's let's take a
• 14:19
  Speaker 3: look at this. This is about a bad lawyer. But
• 14:21
  Speaker 3: it's not about the bad lawyer. It's about what we
• 14:23
  Speaker 3: can learn from this bad lawyer. So this is a
• 14:27
  Speaker 3: situation where we have an attorney Jarvis, who met with
• 14:33
  Speaker 3: wife Lenore and daughter Karen after dad Frank had a
• 14:38
  Speaker 3: stroke and required long term care. So again sort of
• 14:42
  Speaker 3: a rough row. No advanced planning is done right, and
• 14:45
  Speaker 3: he's he's headed into the nursing home. What do they
• 14:49
  Speaker 3: do for planning? Well, the attorney suggests transferring assets now
• 14:54
  Speaker 3: to an irrevocable trust to start what will amount to
• 14:58
  Speaker 3: be a sixteen month waiting period penalty period to get
• 15:03
  Speaker 3: medicaid eligibility. That means you're gonna have to pay privately
• 15:07
  Speaker 3: for sixteen months. Again, there may be some good reason
• 15:10
  Speaker 3: to do this, I don't know yet. But then they
• 15:15
  Speaker 3: of course, when asked questions by Karen, the daughter, there
• 15:18
  Speaker 3: was never a response till you're hired, which I guess
• 15:21
  Speaker 3: that makes sense. Then the fee was paid, and then
• 15:24
  Speaker 3: there was no engagement lettert Row the attorney never met
• 15:29
  Speaker 3: with Frank. I guess the staff did, maybe, but Frank
• 15:33
  Speaker 3: ended up notarizing the signature and preparing all the trust documents.
• 15:37
  Speaker 3: I'm not Frank the attorney. Yep, okay, I guess sixteen
• 15:45
  Speaker 3: months must have passed and they applied for medicaid. But
• 15:50
  Speaker 3: they were denied when they applied for medicaid. Why well,
• 15:53
  Speaker 3: because the assets were never transferred to the trust. So
• 15:57
  Speaker 3: if the assets weren't transferred to the trust, then you
• 15:59
  Speaker 3: can't start a five year waiting period or a sixteen
• 16:02
  Speaker 3: month waiting period in this case to become eligible for medicaid.
• 16:09
  Speaker 3: That's a problem. So Frank then dies before the trust
• 16:15
  Speaker 3: was ever funded. So again, if there was ever any
• 16:17
  Speaker 3: chance to have some estate planning done or tax sheltering
• 16:20
  Speaker 3: or whatever, that didn't happen because frank trust was not funded.
• 16:25
  Speaker 3: Lenor later died shortly after that. Right, So Lenor died
• 16:30
  Speaker 3: shortly after the assets were transferred to the trust. So
• 16:34
  Speaker 3: at least they got in the trust before Lenor died. Well,
• 16:38
  Speaker 3: the lawsuit came for malpractice. You know, you never kept
• 16:41
  Speaker 3: the beneficiaries informed. You didn't fund the trust, you never
• 16:43
  Speaker 3: met with him, there was no engagement letter. I mean,
• 16:47
  Speaker 3: this isn't about the lawsuit against the lawyer. Clearly that's
• 16:51
  Speaker 3: not a helpful attorney, and that's not what this case
• 16:55
  Speaker 3: is about. This case is going to be more about
• 16:58
  Speaker 3: what could have been done in it advance called advanced planning,
• 17:01
  Speaker 3: or how do you do last minute planning better than
• 17:05
  Speaker 3: what was done here? But folks, you know this is
• 17:08
  Speaker 3: all about what didn't get done. But if you don't
• 17:11
  Speaker 3: have your estate plan in place, how you leave your
• 17:13
  Speaker 3: assets to your family might not be the way you
• 17:16
  Speaker 3: want them to get there. And folks, this guide is
• 17:19
  Speaker 3: all about how to leave those assets to the family.
• 17:21
  Speaker 3: Think about rental property, do I, you know, how do
• 17:24
  Speaker 3: I own that to protect my family from creditors? What
• 17:27
  Speaker 3: about a special needs child and how do I leave
• 17:30
  Speaker 3: things to a special needs child or a drug addicted child?
• 17:34
  Speaker 3: Or a second marriage? Think about both sides of the
• 17:38
  Speaker 3: of the marriage and how do we take care of
• 17:40
  Speaker 3: a spouse and not disinherit my side. What if I
• 17:43
  Speaker 3: want to just protect from future divorces, or what if
• 17:46
  Speaker 3: I want to do nothing and just have designated beneficiaries
• 17:49
  Speaker 3: and jointly owned assets. Again, it's in here, but it's
• 17:53
  Speaker 3: not always the best. So folks, learn how best to
• 17:57
  Speaker 3: leave your assets to you, your family with your special situations.
• 18:03
  Speaker 3: Get the guide eight six six eight four eight five
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  Speaker 3: eight four eight five six nine nine or Legal Exchange
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  Speaker 3: show dot com. And again it's the last chance to
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  Speaker 3: get this guide. It's the end of the month, so
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  Speaker 3: call and get it eight six six eight four eight
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  Speaker 3: and you can download it right there.
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  Speaker 2: So sixteen months of private pay todd that must have
• 18:30
  Speaker 2: been a couple hundred grand easily.
• 18:32
  Speaker 3: Yeah, sixteen thousand a month, Yeah, fifteen thousand a month.
• 18:36
  Speaker 3: So I mean I'm scratching my head over that, right?
• 18:39
  Speaker 3: Why Why are we why that route? So let's take
• 18:42
  Speaker 3: a minute, folks. The tips and lessons we get here
• 18:46
  Speaker 3: is not so much about the malpractice but what could
• 18:49
  Speaker 3: have been done. So they were obviously faced with last
• 18:53
  Speaker 3: minute planning, they did not do any advanced planning. My
• 18:56
  Speaker 3: first question is why are we doing an irrevocable trust?
• 18:59
  Speaker 3: Why are we private paying for sixteen months? As you
• 19:01
  Speaker 3: just asked, Susan, I don't know. I can tell you
• 19:05
  Speaker 3: that I can't think of a necessary a reason why
• 19:09
  Speaker 3: I would do.
• 19:09
  Speaker 2: That, And what would you do if they had come
• 19:11
  Speaker 2: to you? So in that situation, do you think.
• 19:14
  Speaker 3: You know, I'm going to guess that of all their
• 19:16
  Speaker 3: assets they have, I don't know, but let's just take
• 19:18
  Speaker 3: a guess if they had a home. So, if they
• 19:20
  Speaker 3: had a home, I would have transferred the home to
• 19:23
  Speaker 3: the healthy spouse, right because this was yeah, there was
• 19:27
  Speaker 3: a healthy spouse leonor yeah, So I would have transferred
• 19:30
  Speaker 3: the home to Lenore. And Lenore is allowed to keep
• 19:34
  Speaker 3: a house, does not matter how much it's worth, and
• 19:38
  Speaker 3: there will be no lean attached to it, and because
• 19:41
  Speaker 3: it's her primary residence and she's living there, it will
• 19:44
  Speaker 3: be non countable and as I said earlier, non leanable
• 19:47
  Speaker 3: off the table, no.
• 19:49
  Speaker 2: Waiting, completely protected.
• 19:52
  Speaker 3: Okay, Todd, Well, I don't know how much money they have,
• 19:53
  Speaker 3: but I don't care. Let's say they have a million
• 19:55
  Speaker 3: dollars of assets. What can I do with that? Well,
• 20:00
  Speaker 3: those are what we call excess resources, and that's a lot.
• 20:03
  Speaker 3: It's a lot of money. So I'm making it high
• 20:06
  Speaker 3: because I want people to not just think you get
• 20:08
  Speaker 3: a right to check, you know, assuming that we don't
• 20:10
  Speaker 3: have a large amount of IRA money, which even if
• 20:13
  Speaker 3: we did, we could transfer it. We just have to
• 20:15
  Speaker 3: calculate the tax right consequences of doing it. Let's just
• 20:18
  Speaker 3: say for fun now that they didn't really have a
• 20:20
  Speaker 3: lot of IRA money and we want to transfer all
• 20:24
  Speaker 3: the assets to the healthy spouse. Can I do that? Absolutely?
• 20:28
  Speaker 3: I can move it right over. There is no penalty
• 20:32
  Speaker 3: period associated with transfers between spouses, but that's not going
• 20:37
  Speaker 3: to help you get eligible for medicaid because they look
• 20:39
  Speaker 3: at you as a whole. That's correct, But the community
• 20:42
  Speaker 3: spouse is allowed to keep about one hundred and fifty
• 20:44
  Speaker 3: thousand dollars. Okay, So a million minus one hundred and
• 20:47
  Speaker 3: fifty thousand, we're down to eight fifty. Yep, all right,
• 20:50
  Speaker 3: Well I got eight hundred and fifty thousand that technically
• 20:52
  Speaker 3: belongs to the six spouse. Six spouse is only allowed
• 20:55
  Speaker 3: to have two thousand dollars rough road denied medicaid. Yep,
• 21:00
  Speaker 3: Well no, because we're going to take the money the
• 21:01
  Speaker 3: eight hundred and fifty thousand that the wife has, depending
• 21:04
  Speaker 3: on her age, and probably buy a medicaid annuity.
• 21:08
  Speaker 2: Okay.
• 21:09
  Speaker 3: And by buying a medicaid annuity, you're basically converting the
• 21:14
  Speaker 3: eight hundred and fifty thousand dollars of excess assets into
• 21:19
  Speaker 3: an income stream. And now she's going to get probably
• 21:23
  Speaker 3: over the next five years a monthly check. Sounds like
• 21:26
  Speaker 3: it'll be pretty large, but.
• 21:27
  Speaker 2: That is going to be large because it's over one
• 21:28
  Speaker 2: hundred a year, So she's going to have that money again,
• 21:31
  Speaker 2: she is.
• 21:32
  Speaker 3: But that's okay because there's a snapshot date. This all
• 21:35
  Speaker 3: gets done on the you know, the date of application.
• 21:39
  Speaker 3: We make a snapshot date. It doesn't matter what happens
• 21:42
  Speaker 3: after that, after your approved right for her. So at
• 21:45
  Speaker 3: that moment, we've converted this to medicaid to an annuity
• 21:48
  Speaker 3: and now he's immediately eligible for medicaid.
• 21:51
  Speaker 2: No paying for sixteen months, and I'm.
• 21:53
  Speaker 3: Paying for sixteen months. I didn't deplete her assets at all,
• 21:56
  Speaker 3: and she got every penny and it's all coming back
• 21:58
  Speaker 3: to her. It's all coming back to her. Why would
• 22:00
  Speaker 3: And it's all coming back to a relatively tax free
• 22:03
  Speaker 3: because again a media newies don't pay out a lot
• 22:05
  Speaker 3: of income, and we don't care about that. We care
• 22:08
  Speaker 3: about saving sixteen thousand a month.
• 22:10
  Speaker 2: Yes, that's a.
• 22:11
  Speaker 3: Pretty good ROI I'm not a financial expert, but I'm
• 22:15
  Speaker 3: liking that make it and so to me, that sounds
• 22:19
  Speaker 3: like a way better approach. And I just need you
• 22:21
  Speaker 3: folks to know that that's how things can get done.
• 22:23
  Speaker 2: So even if you have a house and you have
• 22:25
  Speaker 2: a million bucks, you've shown how you can save that
• 22:29
  Speaker 2: money last minute, last minute, if someone goes into the
• 22:31
  Speaker 2: nursing home.
• 22:32
  Speaker 3: But for all you folks that are saying, well, none
• 22:34
  Speaker 3: of us are sick, Now, how can we do advanced planning? Well,
• 22:37
  Speaker 3: let's talk about you know, post medicaid planning. That's where
• 22:40
  Speaker 3: I was going to go with here. But if you
• 22:41
  Speaker 3: haven't done any or even now for the surviving spouse,
• 22:45
  Speaker 3: we don't want this to happen to the surviving spouse.
• 22:47
  Speaker 3: So we'll take that money in the house and we'll
• 22:50
  Speaker 3: put it into an irrevocable trust.
• 22:52
  Speaker 2: For her once he gets approved.
• 22:54
  Speaker 3: Once he gets approved and get the five year clock started,
• 22:57
  Speaker 3: get the trust funded, you know we're going to be
• 22:59
  Speaker 3: able to preserve the assets for the for Karen, for
• 23:02
  Speaker 3: the child, and for the future children. And again there's
• 23:06
  Speaker 3: no it's it's an incomplete gift. You're going to get
• 23:08
  Speaker 3: to step up in basis again when when she dies
• 23:11
  Speaker 3: it's a home run. Folks learn how to leave your
• 23:15
  Speaker 3: assets to your family, and of course learn how to
• 23:16
  Speaker 3: do last minute medicaid planning too. But this guide helps
• 23:20
  Speaker 3: you make sure that your kids get the assets the
• 23:23
  Speaker 3: way when how you want them to get it. Call
• 23:26
  Speaker 3: and get the guide eight six six eight four eight
• 23:29
  Speaker 3: five six nine nine or Legal Exchange show dot com.
• 23:32
  Speaker 3: It's the last chance to get it, so folks, call
• 23:35
  Speaker 3: and get the guide. Today.
• 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
• 23:46
  Speaker 2: be answering your listener questions when we return to the
• 23:49
  Speaker 2: Legal Exchange with Todd Lutsky.
• 23:53
  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
• 23:59
  Speaker 1: in other law, and their new guide is called how
• 24:01
  Speaker 1: to Leave Assets to Beneficiaries. Adding children as joint owners
• 24:05
  Speaker 1: on accounts or property doesn't guarantee you can avoid probate.
• 24:08
  Speaker 1: It may create serious unintended consequences. In this guide, you'll
• 24:12
  Speaker 1: learn why leaving assets to your children may not always
• 24:15
  Speaker 1: be the best plan. The guide also explains how trusts
• 24:18
  Speaker 1: can be used to stagger distributions over time, help protect
• 24:21
  Speaker 1: assets from creditors or divorce, and ensure your family receives
• 24:24
  Speaker 1: your inheritance in a way that makes sense for your
• 24:27
  Speaker 1: personal situation. Call eight six six eight four eight five
• 24:30
  Speaker 1: six ninety nine right now and ask for your free
• 24:32
  Speaker 1: guide how to Leave Assets to Beneficiaries. That's eight sixty
• 24:36
  Speaker 1: six eight four eight five six nine nine, or requested
• 24:39
  Speaker 1: online at Legal exchange show dot com. The proceeding was
• 24:42
  Speaker 1: paid for and the views expressed are solely those of
• 24:44
  Speaker 1: Cushing and Dolan. Cushing and Dolan and or Armstrong Advisory
• 24:47
  Speaker 1: may contact you offering legal or investment services. Cushing and
• 24:49
  Speaker 1: Dolan and Armstrong Advisory do not endorse each other and
• 24:52
  Speaker 1: are not affiliated.
• 24:53
  Speaker 5: Organization can make a big difference when life takes an
• 24:56
  Speaker 5: unexpected turn. Hi, this is Mike Armstrong from the Armstrong
• 24:59
  Speaker 5: Advisory Group. Having your most important information all in one
• 25:02
  Speaker 5: place may help the people you trust handle critical financial
• 25:05
  Speaker 5: or legal decisions if a crisis occurs. We've written a
• 25:08
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• 25:11
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• 25:14
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• 25:18
  Speaker 5: and property information. Our goal is to provide you with
• 25:20
  Speaker 5: a clear plan for the people you trust if they
• 25:23
  Speaker 5: ever need to help manage a life altering situation. Call
• 25:25
  Speaker 5: eight hundred three nine three four zero zero one right
• 25:28
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• 25:30
  Speaker 5: Emergency Financial Binder. That's eight hundred three nine three four
• 25:34
  Speaker 5: zero zero one, or you can request it online at
• 25:36
  Speaker 5: Armstrong Advisory dot com.
• 25:38
  Speaker 1: The proceeding was paid for by Armstrong Advisory Group, a
• 25:41
  Speaker 1: registered investment advisor. Nothing in the ad or in any
• 25:43
  Speaker 1: Armstrong guide a specific financial, legal, or tax advice. Consult
• 25:46
  Speaker 1: your own financial, tax into state planning advisors before making
• 25:49
  Speaker 1: any investment decisions. Armstrong may contact you to offer investment
• 25:52
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• 25:53
  Speaker 4: This is Michael Valila, adjuedent of the Disabled American Veterans
• 25:57
  Speaker 4: Department of Massachusetts, the DAVIA, Massachusets. This has helped me
• 26:01
  Speaker 4: and countless others adjust to civilian life through a variety
• 26:04
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• 26:08
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  Speaker 4: food shopping, landscaping, and companionship. But we need your support.
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• 26:19
  Speaker 4: davfivek dot Boston. That's dav fivek dot Boston.
• 26:24
  Speaker 1: When it comes to leaving assets to your family, simplicity
• 26:27
  Speaker 1: isn't always the best approach. Cushing and Dolan are experts
• 26:30
  Speaker 1: in other law, and their new guide is called how
• 26:32
  Speaker 1: to Leave Assets to Beneficiaries. Adding children as joint owners
• 26:36
  Speaker 1: and accounts or property doesn't guarantee you can avoid probate.
• 26:39
  Speaker 1: It may create serious unintended consequences. In this guide, you'll
• 26:43
  Speaker 1: learn why leaving assets to your children may not always
• 26:46
  Speaker 1: be the best plan. The guide also explains how trusts
• 26:49
  Speaker 1: can be used to stagger distributions over time, help protect
• 26:52
  Speaker 1: assets from creditors or divorce, and ensure your family receives
• 26:55
  Speaker 1: your inheritance in a way that makes sense for your
• 26:57
  Speaker 1: personal situation. Call eight six eight four eight five six
• 27:01
  Speaker 1: ninety nine right now and ask for your free guide
• 27:04
  Speaker 1: How to Leave Assets to Beneficiaries that's eight six six
• 27:07
  Speaker 1: eight four eight five six nine nine, or requested online
• 27:10
  Speaker 1: at Legal exchange show dot com. The proceeding was paid
• 27:13
  Speaker 1: for and the views expressed are solely those of Cushing
• 27:15
  Speaker 1: and Dolan. Cushing and Dolan and or Armstrong Advisory may
• 27:17
  Speaker 1: contact you offering legal or investment services. Cushing and Dolan
• 27:20
  Speaker 1: and Armstrong Advisory do not endorse each other and are
• 27:23
  Speaker 1: not affiliated. You're listening to the Legal Exchange, and it's
• 27:27
  Speaker 1: time for Ask Todd, the segment where Todd will answer
• 27:30
  Speaker 1: your questions about anything and everything that's included in the
• 27:33
  Speaker 1: estate planning process. Once again, here's Todd, Lutsky and Susan Powers.
• 27:41
  Speaker 2: Welcome back, Todd. We have a few questions from listeners.
• 27:44
  Speaker 2: First question comes from Lisa and Quincy Mass. Lisa writes,
• 27:47
  Speaker 2: my mother passed away in December without a will or
• 27:50
  Speaker 2: anything written down with her intentions. She has two children,
• 27:54
  Speaker 2: including me, and was not married. How difficult will it
• 27:57
  Speaker 2: be to settle her estate now? She had a long
• 28:00
  Speaker 2: term boyfriend and he thinks he is entitled to something.
• 28:04
  Speaker 2: Do we need to worry about any challenges? They were
• 28:06
  Speaker 2: together for a long time, but only lived together for
• 28:09
  Speaker 2: two years before she died, So no will, no nothing.
• 28:13
  Speaker 3: Yeah, this is interesting. I'm not too familiar with, uh,
• 28:19
  Speaker 3: with whether or not there's going to be some kind
• 28:21
  Speaker 3: of you know, deemed common law marriage here. I don't
• 28:26
  Speaker 3: think the facts support it yet I can't really tell.
• 28:30
  Speaker 2: You for two years.
• 28:32
  Speaker 3: Yeah, I mean it's it seems to me that the
• 28:34
  Speaker 3: fact that they're not married, he is not a spouse,
• 28:38
  Speaker 3: and therefore, as not a spouse, is really not a beneficiary,
• 28:44
  Speaker 3: and not only not a beneficiary, but really should not
• 28:49
  Speaker 3: have standing to even file acclaim.
• 28:52
  Speaker 2: Oh so they wouldn't even entertain it from him, basically.
• 28:54
  Speaker 3: I mean to'd be like if you died and I said, well,
• 28:56
  Speaker 3: how come Susan didn't leave me anything? Well, I can't
• 28:59
  Speaker 3: find he did a.
• 29:00
  Speaker 2: Show together for twenty something years. I'm entitled.
• 29:03
  Speaker 3: I'm like a work husband has in pay yeah something, so,
• 29:08
  Speaker 3: but no, it doesn't. It doesn't work that way, right,
• 29:10
  Speaker 3: So I would say that, you know, he probably doesn't
• 29:14
  Speaker 3: even have standing now unless there's some facts that we're
• 29:17
  Speaker 3: missing and somehow he rises to this level of a spouse.
• 29:22
  Speaker 3: But short of that, I'm going to say he doesn't
• 29:25
  Speaker 3: have standing. He can't bring an action, he's not going
• 29:28
  Speaker 3: to be suing.
• 29:29
  Speaker 2: Okay, so he's out. So now what happens if mom
• 29:34
  Speaker 2: didn't have a will or anything, how do they settle
• 29:37
  Speaker 2: her estate?
• 29:38
  Speaker 3: Yeah, it just becomes you know, a full blown probate,
• 29:41
  Speaker 3: you know, situation, so everything is likely to be well,
• 29:44
  Speaker 3: I can't say that. I mean it depends on how
• 29:46
  Speaker 3: things are owned. I mean, if if there's no will here,
• 29:49
  Speaker 3: but you know she had all her accounts jointly owned
• 29:52
  Speaker 3: with her children, or all her accounts had designated beneficiaries
• 29:56
  Speaker 3: on enlisting both children fifty to fifty, at least all
• 29:59
  Speaker 3: of those things would avoid probate. Don't even need a will,
• 30:04
  Speaker 3: They'll just go right to the designated beneficiary, no fuss,
• 30:07
  Speaker 3: no must.
• 30:07
  Speaker 2: What about if she has real estate.
• 30:09
  Speaker 3: I think the real estate Susan is the way the
• 30:12
  Speaker 3: one item that likely would not have had a joint
• 30:16
  Speaker 3: name on it. I mean, I don't think she gave
• 30:18
  Speaker 3: away her house while she was living, so I think
• 30:21
  Speaker 3: that's always could be an issue there, so that one
• 30:25
  Speaker 3: item would have to go to probate. But if that
• 30:28
  Speaker 3: one item goes to probate, and let's just now I
• 30:31
  Speaker 3: told you that the designated beneficiary options, Let's say that
• 30:34
  Speaker 3: didn't happen. Let's say not only the house is going
• 30:37
  Speaker 3: to probate, but all the assets were going to probate. Well,
• 30:41
  Speaker 3: now it'll be a function of the intestate succession statute,
• 30:44
  Speaker 3: which is every state has one, and it's different by state,
• 30:50
  Speaker 3: but it's basically a Plinko board looking for the next
• 30:54
  Speaker 3: closest next of kin, and generally, at least in Massachusetts,
• 30:58
  Speaker 3: it's next of kin at that level. Once you get
• 31:01
  Speaker 3: to that level, you go across that level and stop.
• 31:04
  Speaker 3: You don't go down.
• 31:04
  Speaker 2: So how does it start?
• 31:06
  Speaker 3: So it would say in this case, well, you know,
• 31:08
  Speaker 3: did you leave a spouse, no, nope, did you leave children? Yes,
• 31:14
  Speaker 3: So we would stop already at that level, so we
• 31:16
  Speaker 3: wouldn't have to go any further. Now we go across
• 31:19
  Speaker 3: that generation they call it that degree of king kinship.
• 31:24
  Speaker 3: And you go across that level and find how many
• 31:26
  Speaker 3: there are in this case two kids, they're both living
• 31:31
  Speaker 3: divided fifty to fifty. Take it and go, but it's
• 31:33
  Speaker 3: going to go through probate to get it. Take time
• 31:35
  Speaker 3: and take time money, It's going to take money. But
• 31:37
  Speaker 3: let me give you the example. What if one of
• 31:39
  Speaker 3: those kids had died and left two kids. You get
• 31:43
  Speaker 3: to the kinship level of children yep, and you go
• 31:45
  Speaker 3: across that level, but not down. So instead of it
• 31:50
  Speaker 3: going fifty to fifty and then fifty percent down to
• 31:53
  Speaker 3: the grandkids. It would all go to the surviving child child. Yeah,
• 31:57
  Speaker 3: you don't get that level of you know, down another
• 32:01
  Speaker 3: generation because one died.
• 32:03
  Speaker 2: So we always say a will is a won't. But
• 32:05
  Speaker 2: at the very least a will will put your assets
• 32:08
  Speaker 2: where you want them to go.
• 32:09
  Speaker 3: At least it does that, folks, not a lot else,
• 32:12
  Speaker 3: but it does that, And so that's really the issue
• 32:14
  Speaker 3: here for you.
• 32:14
  Speaker 1: Lease.
• 32:15
  Speaker 3: I think it's certainly manageable, but folks, leaving assets to family,
• 32:18
  Speaker 3: this was not a good way to do it. Get
• 32:20
  Speaker 3: the guide. It's the end of the month. It's the
• 32:22
  Speaker 3: last chance to get it, folks. We're going to put
• 32:24
  Speaker 3: it away, but this is the one that really talks
• 32:26
  Speaker 3: about how to leave your assets to your family so important,
• 32:30
  Speaker 3: more so than taxes, more so than probate. Make sure
• 32:34
  Speaker 3: they're taken care of the way you want and not
• 32:36
  Speaker 3: accidentally disinherited, from second marriages to special needs children, to
• 32:41
  Speaker 3: divorce proofing, and many other ways. Get the guide eight
• 32:46
  Speaker 3: six six eight four eight five six ninety nine or
• 32:50
  Speaker 3: Legal Exchange Show dot com Again, end of the month,
• 32:52
  Speaker 3: folks eight six six eight four eight five six ninety
• 32:56
  Speaker 3: nine or Legal Exchange Show dot com and go to
• 32:59
  Speaker 3: our instaut grand page Cushing Dolan PC for more information.
• 33:03
  Speaker 2: Our last question comes from Sharon in Walpole, Mass and
• 33:06
  Speaker 2: Sharon writes, I created my irrevocable trust with you several
• 33:11
  Speaker 2: years ago, and I'm afraid now that I'm stuck with
• 33:13
  Speaker 2: the beneficiaries I selected at the time. I don't have
• 33:17
  Speaker 2: any children, but i have several nieces and nephews that
• 33:20
  Speaker 2: I've included in my plan. One of my nieces has
• 33:23
  Speaker 2: been helping him out, helping me out a lot, and
• 33:26
  Speaker 2: I'd like to now leave her a little extra. Is
• 33:28
  Speaker 2: that possible? Also? Can I add charities and a cousin?
• 33:34
  Speaker 3: So the answer is good news for you. If it
• 33:38
  Speaker 3: was a trust that I prepared, you did so. An
• 33:43
  Speaker 3: irrevocable trust that Cushing and Dolan puts together. We keep
• 33:47
  Speaker 3: our trusts saying we give you, Sharon something called a
• 33:52
  Speaker 3: limited power of appointment.
• 33:54
  Speaker 2: What does that mean in English?
• 33:56
  Speaker 3: And that is a power granted to the donor are
• 34:00
  Speaker 3: to change. I know it sounds funny. Change an irrevocable
• 34:06
  Speaker 3: trust after it's created, but limited limited power appointment limited
• 34:12
  Speaker 3: to who gets the assets when you die, and further
• 34:17
  Speaker 3: limited to a class of people defined at that time.
• 34:22
  Speaker 2: Okay, what does that mean?
• 34:23
  Speaker 3: So in this case, I'm gonna guess that the beneficiaries,
• 34:28
  Speaker 3: since it says our nieces and nephews, we would have
• 34:31
  Speaker 3: limited it to probably siblings and nieces and nephews and
• 34:34
  Speaker 3: maybe charities.
• 34:35
  Speaker 2: Yep.
• 34:36
  Speaker 3: So it would probably be siblings, nieces, nephews, and charities
• 34:40
  Speaker 3: that that's probably it. Or maybe just nieces, nephews and
• 34:43
  Speaker 3: charities that that's probably what it says. So that's the class. Okay, okay,
• 34:48
  Speaker 3: So what does that mean? So now you could come back, Sharon,
• 34:53
  Speaker 3: and by exercising this power appointment, and by the way,
• 34:56
  Speaker 3: you have to exercise it through the w bill to
• 35:02
  Speaker 3: change the language and the trust. So you're going to
• 35:04
  Speaker 3: go to probate, not the trust assets. Just file the
• 35:08
  Speaker 3: will to effectuate this change, okay, And then you can say, oh,
• 35:14
  Speaker 3: I want a little more to go to this nephew,
• 35:16
  Speaker 3: a little more to go to this niece. Sounds like
• 35:18
  Speaker 3: you've got one niece who's been helping out. So maybe
• 35:20
  Speaker 3: we allocate things, you know, sixty forty, seventy thirty or
• 35:24
  Speaker 3: whatever percentage you want to do to take care of
• 35:30
  Speaker 3: that particular niece or nephew so.
• 35:32
  Speaker 2: She has the ability to change your mind of how
• 35:34
  Speaker 2: she's doing it and charity.
• 35:36
  Speaker 3: So she could probably add a charity if she wanted to.
• 35:39
  Speaker 3: What about the cousin, cousin Vinnie. Yeah, see cousin Vinnie
• 35:43
  Speaker 3: is not a niece or nephew, He's a cousin, so
• 35:46
  Speaker 3: he is not in the group. Okay, So if he's
• 35:49
  Speaker 3: not in the group, you can't add him now.
• 35:53
  Speaker 2: So she could do something like if she has something
• 35:55
  Speaker 2: that's not a trust asset. So for example, if she
• 35:58
  Speaker 2: has an IRA, she could take care of cousin Binny there,
• 36:01
  Speaker 2: maybe make him part of a beneficiary. Absolutely could do that,
• 36:05
  Speaker 2: certainly take care of him outside of the trust. So
• 36:09
  Speaker 2: when she dies, how does this change how her estate
• 36:13
  Speaker 2: is settled? If she makes changes to her beneficiaries along
• 36:17
  Speaker 2: the way, does it make a difference.
• 36:19
  Speaker 3: Well, aside from the fact that different people are going
• 36:22
  Speaker 3: to get different assets.
• 36:23
  Speaker 2: Right, that's one process itself.
• 36:25
  Speaker 3: Is the process does change a little because again we
• 36:28
  Speaker 3: are going to have to open up a probate to
• 36:31
  Speaker 3: file the will to effectuate the exercise of the power
• 36:35
  Speaker 3: of appointment. Changing the language and the will.
• 36:38
  Speaker 2: Is that a complicated process.
• 36:40
  Speaker 3: It's not a full blown probate it's just one of
• 36:42
  Speaker 3: those things where you've got to do it because it's
• 36:47
  Speaker 3: the way it's set up. Step one more step. But
• 36:50
  Speaker 3: all the assets of the trust do not become probate assets.
• 36:53
  Speaker 3: I don't want you to think that at all. So
• 36:56
  Speaker 3: that's that's exactly it now. Folks, How you leave assets
• 37:00
  Speaker 3: very important. Get the guide eight six six eight four
• 37:04
  Speaker 3: eight five six nine nine or Legal Exchange Show dot
• 37:08
  Speaker 3: com and download it right there.
• 37:09
  Speaker 2: If you have a question you'd like to ask Todd,
• 37:12
  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
• 37:18
  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
• 37:23
  Speaker 2: life stories. You've been listening to Todd Lutsky, a partner
• 37:27
  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: 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 why leaving assets to your children may not always
• 38:02
  Speaker 1: be the best plan. The guide also explains how trusts
• 38:05
  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
  Speaker 1: six ninety nine right now and ask for your free
• 38:19
  Speaker 1: guide How to Leave Assets to Beneficiaries. That's eight sixty
• 38:23
  Speaker 1: six eight four eight five six nine nine, or requested
• 38:26
  Speaker 1: online at legal exchangshow dot com. The proceeding was paid
• 38:29
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• 38:31
  Speaker 1: and Dolan. Cushing and Dolan and or Armstrong Advisory may
• 38:34
  Speaker 1: contact you offering legal or investment services. Cushing and Dolan
• 38:36
  Speaker 1: and Armstrong Advisory do not endorse each other and are
• 38:39
  Speaker 1: not affiliated HI.
• 38:40
  Speaker 2: This is susan powers from the Armstrong Advisory Group when
• 38:42
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• 39:23
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• 39:27
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• 39:27
  Speaker 1: The proceeding was paid for by Armstrong Advisory Group, a
• 39:30
  Speaker 1: registered investment advisor. Nothing in the ad or in any
• 39:32
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• 39:34
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• 39:37
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• 39:40
  Speaker 1: Leaving assets to your family may sound simple, but you
• 39:43
  Speaker 1: need the right plan. Cushing and Dolan's new guide is
• 39:45
  Speaker 1: called how to Leave Assets to Beneficiaries, Protect your assets
• 39:48
  Speaker 1: and control your family's inheritance. Call eight sixty six eight
• 39:51
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• 39:53
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• 39:56
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• 39:58
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• 40:01
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• 40:03
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• 40:09
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• 40:11
  Speaker 4: This is Michael Valila, adjudant of the Disabled American Veterans
• 40:14
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• 40:41
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• 40:44
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• 40:46
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• 40:54
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• 40:57
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• 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 with the Armstrong Advisory Group,
• 41:07
  Speaker 2: and I'm joined, of course by Todd Lutsky, a partner
• 41:10
  Speaker 2: with the law firm of Cushing and Dolan with a
• 41:12
  Speaker 2: master's in taxation. So, Todd, your guide this month is
• 41:17
  Speaker 2: all about how to leave assets to your beneficiaries. And
• 41:21
  Speaker 2: there are a lot of folks out there that may
• 41:24
  Speaker 2: have a special needs child or grandchild, and they are
• 41:27
  Speaker 2: under the misconception that they need to disinherit that child
• 41:34
  Speaker 2: in order to make sure that they don't disrupt any
• 41:37
  Speaker 2: governmental benefits they might be having and so forth. So
• 41:41
  Speaker 2: I want to set the record straight. So why don't
• 41:43
  Speaker 2: we kind of start with the basics. So there are
• 41:46
  Speaker 2: a few different types of special needs trust, So what
• 41:49
  Speaker 2: are the most common ones?
• 41:51
  Speaker 3: So I just I was going to address your first question, like,
• 41:54
  Speaker 3: you know what you know? Is that true? I don't
• 41:57
  Speaker 3: think the answer is no. I don't think it is true.
• 41:58
  Speaker 3: You don't have to disinherit your child, and I just
• 42:01
  Speaker 3: we'll get to your question for sure, but one no,
• 42:03
  Speaker 3: you don't have to. And the confusion is people think
• 42:06
  Speaker 3: that you do. But by using these special needs trusts
• 42:09
  Speaker 3: that will define for you, you prevent that from happening.
• 42:13
  Speaker 3: You leave it in trust for the child, not in
• 42:16
  Speaker 3: the child's hands. Perfect So that's.
• 42:19
  Speaker 2: What are the different type because you have different options
• 42:22
  Speaker 2: when you have a special needs child. So what type
• 42:24
  Speaker 2: of special needs trusts are there?
• 42:26
  Speaker 3: So you could have one that's a self settled trust
• 42:33
  Speaker 3: or a third party trusty, and you can have some
• 42:38
  Speaker 3: so and you can have a standalone trust or one
• 42:42
  Speaker 3: that's built into your estate plan. So I think those
• 42:44
  Speaker 3: are kind of the differences that we have. So first
• 42:48
  Speaker 3: and foremost, if the child became disabled on their own,
• 42:54
  Speaker 3: an accident, something happened, they weren't born that way, but
• 42:57
  Speaker 3: then they became special needs because of an accident, they
• 43:02
  Speaker 3: might have got an award settlement. Well that's their money.
• 43:07
  Speaker 3: Well that makes it a self settled special needs trust.
• 43:11
  Speaker 3: That's a trust that maybe they're not competent to set
• 43:13
  Speaker 3: it up, so you, as a parent or a court
• 43:16
  Speaker 3: establishes the trust for the kid, funding it with their money.
• 43:22
  Speaker 3: So that's a self settled trust in which that child
• 43:25
  Speaker 3: then can continue to stay on governmental benefits but enjoy
• 43:29
  Speaker 3: the money that's in there. The only difference is that
• 43:34
  Speaker 3: their whole life they might be getting some governmental benefit,
• 43:36
  Speaker 3: but when they die, whatever is left in there that
• 43:38
  Speaker 3: they haven't used, you got to pay back the state
• 43:42
  Speaker 3: for whatever whatever they received. And again it's hard for
• 43:46
  Speaker 3: special needs kids to use up all that money, so
• 43:49
  Speaker 3: there's likely some to pay back. I think that's a
• 43:52
  Speaker 3: self settled situation.
• 43:54
  Speaker 2: You mentioned a standalone special needs trust.
• 43:57
  Speaker 3: So mom and dads of the world now that have
• 44:00
  Speaker 3: this special needs child there, they say, oh, I'm going
• 44:03
  Speaker 3: to create a special needs trust for my kid, and
• 44:06
  Speaker 3: it's actually a trust set up just for the child
• 44:09
  Speaker 3: right right now.
• 44:10
  Speaker 2: Put money into it and so forth.
• 44:12
  Speaker 3: I don't know why we would do that. So that's
• 44:14
  Speaker 3: one that I mentioned because I see it done. I
• 44:18
  Speaker 3: don't think I've done maybe one.
• 44:20
  Speaker 2: But there's a lot of there's a lot of kind
• 44:22
  Speaker 2: of oversight. When you have a standalone special needs trust,
• 44:26
  Speaker 2: you have to report, file, dark file, all that stuff,
• 44:30
  Speaker 2: and so there's a lot of stuff that has to
• 44:32
  Speaker 2: be done.
• 44:32
  Speaker 3: I think the only time you'd really do that is
• 44:35
  Speaker 3: if you had other family members who want to contribute
• 44:37
  Speaker 3: to a fund for the benefit of this child, aunts, uncles, grandparents, Okay,
• 44:42
  Speaker 3: and they feel bad and they want to contribute, Maybe
• 44:45
  Speaker 3: do it that way. Mostly you're the parent, You're going
• 44:47
  Speaker 3: to take care of your child. Well, in that case,
• 44:51
  Speaker 3: you're going to have your own estate plan done to
• 44:53
  Speaker 3: begin with. That's first and foremost yep. And then inside
• 44:58
  Speaker 3: your trust it says upon the death of both of you,
• 45:01
  Speaker 3: it breaks down into these buckets for the kids. Well,
• 45:04
  Speaker 3: there will be this inside that trust will be the
• 45:07
  Speaker 3: third party sole benefit trust or special needs trust for
• 45:12
  Speaker 3: that child.
• 45:13
  Speaker 2: So the language to create it once mom and dad.
• 45:16
  Speaker 3: Die, Yeah, it's built into your existing trust. Third party
• 45:19
  Speaker 3: trust takes care of the child. No payback provision. Huge difference. Folks,
• 45:25
  Speaker 3: call and get the guide learn how to leave your
• 45:29
  Speaker 3: assets to your family, because there is an important distinction
• 45:34
  Speaker 3: for your situation. Rather it's the second marriage, or as
• 45:37
  Speaker 3: we just talked about special needs children, or you know,
• 45:40
  Speaker 3: maybe I've got an LLC's and I want to protect
• 45:42
  Speaker 3: my kids from creditors. How do I do that? You know?
• 45:45
  Speaker 3: What about divorces? Folks? So many things to think about.
• 45:49
  Speaker 3: Call and get it. It's the end of the month,
• 45:50
  Speaker 3: last chance to get it. Eight six six eight four
• 45:54
  Speaker 3: eight five six nine to nine or Legal Exchange Show
• 45:58
  Speaker 3: dot com. You can download it right there again eight
• 46:01
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• 46:05
  Speaker 3: or Legal Exchange Show dot com and go to our
• 46:08
  Speaker 3: Instagram page Cushing Dolan PC for more information.
• 46:12
  Speaker 2: So the self settled in the standalone special needs trust
• 46:17
  Speaker 2: self settled, yes, compared to the third party trust.
• 46:21
  Speaker 3: Yes.
• 46:21
  Speaker 2: The big difference there is what happens when they die?
• 46:26
  Speaker 3: Yeah, yeah, I think that's a fair question. The difference
• 46:30
  Speaker 3: between the first to the standalone Well, no, no, the
• 46:36
  Speaker 3: self settled yep. The self settled first has a payback
• 46:40
  Speaker 3: provision to the state. Okay, the standalone trust doesn't because
• 46:45
  Speaker 3: again it's not funded with the child's money. That's the aunt,
• 46:49
  Speaker 3: the uncle, the grandparent putting money into it, and that
• 46:53
  Speaker 3: will really be the only time I would even do those,
• 46:54
  Speaker 3: And again they're not done very frequently. Yeah, compared to
• 46:58
  Speaker 3: the third party trust, which is generally done by the
• 47:02
  Speaker 3: parent built into their trust. Also no payback. So the
• 47:06
  Speaker 3: difference really is third party no payback to the state,
• 47:11
  Speaker 3: a self settled payback back. That I think is that
• 47:14
  Speaker 3: the key distinction takeaway?
• 47:16
  Speaker 2: So what happens so mom and dad pass away? They've
• 47:19
  Speaker 2: got this special needs share that's been funded. How is
• 47:23
  Speaker 2: that money utilized during the child's life? Would are there
• 47:26
  Speaker 2: restrictions on that? Is that willy nilly? Who's operating it?
• 47:29
  Speaker 2: How does that work?
• 47:31
  Speaker 3: So the trustee of these special needs trusts, if you will,
• 47:37
  Speaker 3: probably should be a sibling if you have one. I
• 47:41
  Speaker 3: say that because I think the sibling probably knows the
• 47:44
  Speaker 3: sibling that's disabled, their needs, their wants, their lifestyles, what's
• 47:49
  Speaker 3: best for them. Some stranger or a bank they don't know.
• 47:54
  Speaker 3: So I would stick with that. Now, once we have
• 47:58
  Speaker 3: that person in play, that person follows the language of
• 48:02
  Speaker 3: the trust as a guide. What have I said? And
• 48:06
  Speaker 3: mostly how would I create this? Sole discretion? All right?
• 48:11
  Speaker 3: Not a lot of guidance, right. Sole discretion means you
• 48:15
  Speaker 3: get to determine when to give it to this child
• 48:18
  Speaker 3: and how much and why and when? And that's important
• 48:20
  Speaker 3: because you don't want to itemize, right, you have no
• 48:24
  Speaker 3: idea what the child might need something for, and I
• 48:29
  Speaker 3: don't want to be tied to a list and then
• 48:31
  Speaker 3: have that item that come up not be on the list.
• 48:36
  Speaker 3: So I think sole discretion is the way to go
• 48:39
  Speaker 3: in those distributions.
• 48:40
  Speaker 2: Those don't they don't put any of those governmental benefits
• 48:43
  Speaker 2: at risk.
• 48:44
  Speaker 3: They don't. Well, they they don't because again, the way
• 48:47
  Speaker 3: they look at it is they look at not what
• 48:50
  Speaker 3: was paid out, but what the child owns. Yes, so
• 48:53
  Speaker 3: there might be five hundred thousand dollars sitting in a bucket, Well,
• 48:58
  Speaker 3: that money isn't owned by the child, So that money
• 49:02
  Speaker 3: isn't going to cause them to lose their benefits. You know,
• 49:05
  Speaker 3: a payment out here and there isn't going to cause
• 49:07
  Speaker 3: the child to lose governmental benefits. They look at it
• 49:09
  Speaker 3: sort of on an annual basis.
• 49:11
  Speaker 2: Okay, so no, and then what happens to the money
• 49:14
  Speaker 2: that's in that trust when that child passes away.
• 49:20
  Speaker 3: So if it's in a third party trust, which I
• 49:22
  Speaker 3: think is the one we're talking about, it's going to
• 49:27
  Speaker 3: go to wherever that language, and the trust says. Now again,
• 49:31
  Speaker 3: if this child had a disability occur after birth, they
• 49:37
  Speaker 3: might have been married with kids, and so if there's
• 49:40
  Speaker 3: kids in play, then they would likely go down to
• 49:43
  Speaker 3: the grandchildren. If there isn't, it would then bounce back
• 49:47
  Speaker 3: up to the then living siblings of that child or
• 49:50
  Speaker 3: the remaining children of the donor, and it would follow
• 49:54
  Speaker 3: the terms of the trust for their beneficial designation.
• 49:57
  Speaker 2: Okay, so really you can really determine where you want
• 50:01
  Speaker 2: those funds to go as a parent.
• 50:02
  Speaker 3: Oh yes, all the way through, No problem at all.
• 50:06
  Speaker 3: So folks, it's the end of the month.
• 50:08
  Speaker 1: This is it.
• 50:09
  Speaker 3: Get the guide how to leave your assets to your family,
• 50:13
  Speaker 3: the most important part of the estate plan. If you
• 50:15
  Speaker 3: ask me, call and get it eight six six eight
• 50:18
  Speaker 3: four eight five six nine nine or legal exchange show
• 50:23
  Speaker 3: dot com. Learn what's the best way to leave assets
• 50:27
  Speaker 3: to your family? Because it is the end of the
• 50:29
  Speaker 3: month eight six six eight four eight five six nine
• 50:34
  Speaker 3: to nine or legal exchange show dot com. You can
• 50:37
  Speaker 3: download it there and happy end of the month.
• 50:41
  Speaker 2: I guess I can't believe it's another one zone.
• 50:43
  Speaker 3: Another one of those gone.
• 50:44
  Speaker 2: Todd Lutsky from the law firm of Cushing and Dolan.
• 50:47
  Speaker 2: Thank you so much.
• 50:48
  Speaker 3: Thank you, Susan, always a pleasure.
• 50:50
  Speaker 2: I'm Susan Power as a financial advisor with the Armstrong
• 50:53
  Speaker 2: Advisory Group. We thank you for joining us today and
• 50:55
  Speaker 2: we'll be back again next week on the Legal Exchange
• 50:58
  Speaker 2: with Todd 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
• 51:07
  Speaker 1: in other law, and their new guide is called how
• 51:09
  Speaker 1: to Leave Assets to Beneficiaries. Adding children as joint owners
• 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
• 51:20
  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
• 51:32
  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
• 51:40
  Speaker 1: guide How to Leave Assets to Beneficiaries. That's eight sixty
• 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
  Speaker 1: may contact you offering legal or investment services. Cushing and
• 51:57
  Speaker 1: Dolan and Armstrong Advisory do not endorse each other and
• 51:59
  Speaker 1: are not affili.
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  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 is specific financial, legal or tax advice. Consult
• 52:54
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• 52:56
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• 53:00
  Speaker 1: Leaving assets to your family may sound simple, but you
• 53:02
  Speaker 1: need the right plan. Cushing and Dolan's new guide is
• 53:05
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• 53:08
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• 53:18
  Speaker 1: exchange show dot com. The proceeding was paid for and
• 53:20
  Speaker 1: the views expressed are solely those of Cushing and Dolan.
• 53:22
  Speaker 1: Cushing and Dolan and or Armstrong Advisory may contact you
• 53:25
  Speaker 1: offering legal or investment services. Cushing and Dolan and Armstrong
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  Speaker 1: Advisory do not endorse each other and are not affiliated.
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  Speaker 4: This is Michael Valila, adjudant of the Disabled American Veterans
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  Speaker 4: Department of Massachusetts. The dav of Massachusetts has helped me
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  Speaker 4: and countless others adjust to civilian life through a variety
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  Speaker 4: of incredible programs. Through our Local Veterans Assistance Program, we
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  Speaker 4: provide necessary services to veterans in their communities, such as food, shopping, landscaping,
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  Speaker 4: and companionship. But we need your support. You can help
• 53:53
  Speaker 4: by making a donation today. Please visit Dav fivek dot Boston.
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  Speaker 4: That's Dav five k dot Boston.
• 54:00
  Speaker 1: STEM