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Undue influence that benefits one child more than others · The Legal Exchange

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  Speaker 1: This is the Legal Exchange with Todd Lutsky from the
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  Speaker 1: law firm of Cushing and Dolan and Susan Powers of
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  Speaker 1: the Armstrong Advisory Group. Each week, Todd and Susan will
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  Speaker 1: Here are your hosts, Tod Lutsky and Susan Powers.
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  Speaker 2: Welcome into the Legal Exchange with Todd Lutsky. I'm Susan Powers,
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  Speaker 2: a financial advisor with the Armstrong Advisory Group, and I'm
• 0:43
  Speaker 2: joined by Todd Lutsky, a partner with the law firm
• 0:46
  Speaker 2: of Cushing and Dolan with a master's in taxation. Welcome Todd.
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  Speaker 2: How are you today?
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  Speaker 3: I am never better in you?
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  Speaker 2: I'm great?
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  Speaker 3: Thank you.
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  Speaker 2: What do you have for us this week?
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  Speaker 3: Couple things? We've got a United States tax Court case.
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  Speaker 3: You don't see us going there very often, but we
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  Speaker 3: are because of dealing with what we call the q
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  Speaker 3: TIP election, the qualified terminal interest property. This is how
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  Speaker 3: you shelter assets for estate tax purposes. We talk about
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  Speaker 3: it all the time, but this is an actual case
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  Speaker 3: involving a q TIP or a failed q TIP election
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  Speaker 3: and why it's so important to have your estate tax
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  Speaker 3: return done correctly when someone dies and know what to
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  Speaker 3: do when someone dies. And I'm going to explain all
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  Speaker 3: that to you here. So that's a really great case actually,
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  Speaker 3: And then we're going to go all the way to Alaska.
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  Speaker 3: Haven't been to Alaska in a while, and interesting case.
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  Speaker 3: It's an undue influenced case, but Erna and James owned
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  Speaker 3: five properties in Alaska and several properties outside of Alaska.
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  Speaker 3: And then you're going to see how with the four
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  Speaker 3: kids that they were always helping equally slowly ended up
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  Speaker 3: getting more to one child than another right before they died.
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  Speaker 3: And you're going to see how they only had a
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  Speaker 3: will with all these properties, and folks, you can already
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  Speaker 3: anticipate why there was you know, the comments we're going
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  Speaker 3: to learn is why why didn't they plan better than
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  Speaker 3: this and might prevent some of this undue influence, so
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  Speaker 3: lots to learn about in these two cases, for sure.
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  Speaker 3: But before we do that, it is a new month
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  Speaker 3: of these answers in the guide. And if you've never
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  Speaker 3: Power of Unlocking Irrevocable Medicaid Trusts eight sixty six eight
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  Speaker 3: dot Com again eight sixty six eight four eight, five, six,
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  Speaker 3: nine nine or Legal Exchange show dot com, United States
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  Speaker 3: Tax Court. So Martin Griffin establishes a revocable trust in
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  Speaker 3: twenty twelve, amends it in twenty eighteen, and when he
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  Speaker 3: does that, he directs two point three million dollars into
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  Speaker 3: an irrevocable trust when he dies for his wife Maria,
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  Speaker 3: clearly a second wife. Two point zero million or two
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  Speaker 3: million was held in a trust for Maria, with the
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  Speaker 3: trustee to pay reasonable amounts to her but not to
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  Speaker 3: exceed nine thousand dollars per month or nine thousand dollars yeah,
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  Speaker 3: per month, Okay, and then another three hundred thousand set
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  Speaker 3: aside to be used for her living expenses. Oh, that's nice.
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  Speaker 3: And she gets five thousand dollars a month for sixty months.
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  Speaker 2: This is not too shabby of a deal.
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  Speaker 3: No, But with regard to that three hundred thousand, anything
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  Speaker 3: that she doesn't use on the date of her death
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  Speaker 3: goes to her anyway out of the three hundred thousand bucket.
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  Speaker 3: Will Martin died in twenty nineteen and they filed as
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  Speaker 3: seven oh six, folks, as seven oh six is an
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  Speaker 3: estate tax return. It's a federal estate tax return. That's
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  Speaker 3: the form number they filed, the seven oh six, but
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  Speaker 3: they do not make a q TIP election. But they
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  Speaker 3: did list the two point three million dollars bequest to
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  Speaker 3: Maria who was his spouse, in another in the this
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  Speaker 3: section called other property section, which is not right. Okay, Well,
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  Speaker 3: all the property ended up being included in Martin's estate
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  Speaker 3: and the tax They got a tax bill unbeknownst to
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  Speaker 3: them for one point zero four million and one hundred
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  Speaker 3: billy and one hundred and eighty four thousand inaccurately related penalties. Well, again,
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  Speaker 3: the reason they did that is because there must have
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  Speaker 3: been a lot of other assets going to someone other
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  Speaker 3: than the spouse, right because the exemption was high. So
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  Speaker 3: they appealed, and the estate and the irs both filed
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  Speaker 3: summary judgments and basically saying that there's no issue of
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  Speaker 3: material fact here. Both sides actually agreed that the two
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  Speaker 3: million dollar bucket was a terminable interest property and does
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  Speaker 3: not qualify as q TIP unless you make this q
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  Speaker 3: TIP election, and they also agreed that no such election
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  Speaker 3: was made.
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  Speaker 2: So there was basically an error on the tax return itself.
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  Speaker 3: Absolutely, they put the property in the wrong place and
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  Speaker 3: they didn't make the election However, the estate argued that
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  Speaker 3: since the irs didn't bring this up during the initial audit,
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  Speaker 3: that they can't claim it now. Well, the court said,
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  Speaker 3: we're not persuaded by the lack of substantial compliance arguments,
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  Speaker 3: so too bad for you. But they did acknowledge that
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  Speaker 3: the three hundred thousand dollars piece ended up going to
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  Speaker 3: the wife. Remember, no matter what, it would go to
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  Speaker 3: the wife when and would be included in her estate.
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  Speaker 3: So they gave the marital deduction for the three hundred
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  Speaker 3: thousand Remember, folks, the Q tip here is all about
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  Speaker 3: getting a marital deduction and not paying taxes on the
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  Speaker 3: first death, yes, but perhaps having it included in the
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  Speaker 3: estate of the survivor in paying taxes then, And of course,
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  Speaker 3: between the date of death of the first spouse and
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  Speaker 3: the second spouse you have time to do things to
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  Speaker 3: move assets out of the estate that might not be
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  Speaker 3: tax Oh okay, so that surviving spouse could have done
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  Speaker 3: something with those assets. So the ruling is that pretty
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  Speaker 3: much you lose pay the piper, except for the three
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  Speaker 3: hundred thousand dollar piece. We'll give you a deduction for that.
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  Speaker 3: Probably lowered the liability a little.
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  Speaker 2: Yeah, not much, not much.
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  Speaker 3: All right, folks, what do we learn from this? This
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  Speaker 3: is all about the Q tip and remainder share that
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  Speaker 3: we talk about so many times.
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  Speaker 2: But this is a second for a higher net worth
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  Speaker 2: I'm thinking duals.
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  Speaker 3: I'm thinking it would have been right because in.
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  Speaker 2: General are used for higher net worth families.
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  Speaker 3: Well, Q tips are built into the trusts in general.
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  Speaker 3: But yes, the higher if you're over two million dollars,
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  Speaker 3: you want to fund it in Massachusetts with anything over too,
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  Speaker 3: got it. If you're over fourteen million dollars, you're going
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  Speaker 3: to fund it. You're going to fund it up to fourteen.
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  Speaker 2: The federal side of things, and then got it.
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  Speaker 3: The additional will go into a general marital So clearly
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  Speaker 3: this was a second marriage right, and it seems to
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  Speaker 3: me that it shows us that you are able to
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  Speaker 3: divert assets in a trust to take care of a spouse.
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  Speaker 3: That's what they were doing. And it was a good deal.
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  Speaker 3: As you said, Susan, sounds like a pretty good deal,
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  Speaker 3: and it was. And this is a great way to
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  Speaker 3: do things to you know, lots of other assets must
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  Speaker 3: have gone to the other kids from a prior marriage
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  Speaker 3: because the federal exemption in twenty eleven or twenty nineteen
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  Speaker 3: when she died was pretty high, so there probably was
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  Speaker 3: a lot of exemption, a lot of assets going to
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  Speaker 3: someone other than a spouse, which is what triggered the tax.
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  Speaker 3: Plus this amount put them even over. They might have
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  Speaker 3: been thinking this would have gotten a marital deduction, but
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  Speaker 3: turned out to be included, and that was the problem. Now,
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  Speaker 3: remember this is fine. You can take care of your
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  Speaker 3: spouse while you're living and at the same time make
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  Speaker 3: sure the kids from another marriage are taken care of. Right. However,
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  Speaker 3: you got to be careful because if you leave more
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  Speaker 3: assets than the exemption to a non spouse, then you're
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  Speaker 3: going to have taxes due on the first death because
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  Speaker 3: you only get a marital deduction if you leave it
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  Speaker 3: to Now, remember a q TIP means that all income
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  Speaker 3: must go to the spouse and principal cannot go to
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  Speaker 3: anyone other than a spouse. Well, this trust said nine
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  Speaker 3: thousand dollars, you know, per month. It likely would be
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  Speaker 3: all the income, so you probably would qualify, probably even
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  Speaker 3: need some principle to go to the spouse, so it
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  Speaker 3: would have qualified for the q TIP, But again you
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  Speaker 3: needed to make the marital deduction election. The q TIP
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  Speaker 3: election in order to get that treatment. So remember it's
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  Speaker 3: important at this point to always make sure when someone dies,
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  Speaker 3: and this was probably in some of our old guides
• 9:27
  Speaker 3: as to you know, mistakes and potholes people make right.
• 9:31
  Speaker 3: Make sure you go to your estate planning attorney when
• 9:34
  Speaker 3: you lose a spouse so that all the right tax returns, adjustments, buckets,
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  Speaker 3: q tips, remainder shares can be filled properly and then
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  Speaker 3: accounted for properly to make sure you get to use
• 9:48
  Speaker 3: the deductions that are available to you and shelter the
• 9:51
  Speaker 3: assets that you can shelter. So, folks, this was a
• 9:55
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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 Powers, a
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  Speaker 2: financial advisor with the Armstrong Advisory Group. We've got much
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  Speaker 2: with Todd Lutsky.
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  Speaker 2: Welcome back into the Legal Exchange with Todd Lotski. I'm
• 13:56
  Speaker 2: Susan Powers, a financial advisor the Armstrong Advisory Group, and
• 14:00
  Speaker 2: I'm joined by Todd Latsky, 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: Where are we headed now, Todd?
• 14:08
  Speaker 3: We are going to go to Alaska. Yeah, it's far away.
• 14:13
  Speaker 3: Let's talk about this. This is an undue influence case.
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  Speaker 3: We've heard a lot of these lately and I can't
• 14:18
  Speaker 3: help but bring them up because they keep coming up.
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  Speaker 3: And I think it's important for people to make sure
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  Speaker 3: they know that their wishes are going to be taken
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  Speaker 3: care of and should take steps to prevent it from happening.
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  Speaker 3: So in this case, Erna and James, they owned five
• 14:35
  Speaker 3: properties in Alaska and several properties outside of Alaska. I'm
• 14:39
  Speaker 3: guessing they're probably worth a good amount of money. They
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  Speaker 3: had helped all four of their kids purchase their own properties,
• 14:48
  Speaker 3: entering into formal purchase and sale agreements with each of
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  Speaker 3: them Lydia, Diane, Mary, and Jimmy. Erna in two thousand
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  Speaker 3: and four did a will. Oh great, we have all
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  Speaker 3: these properties, and she's doing a will no benefiting the
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  Speaker 3: four kids equally. You could see that it's always been,
• 15:05
  Speaker 3: you know, we're helping the four kids buy properties. We've
• 15:08
  Speaker 3: got four kids treated equally. And it says if Jim
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  Speaker 3: died and not survived by her, it goes to these
• 15:17
  Speaker 3: four kids. So Jim is her husband, Jimmy is the kid.
• 15:22
  Speaker 3: So the personal representative listed in the will if James
• 15:25
  Speaker 3: is not alive would be Lydia and Mary. Okay, Well,
• 15:30
  Speaker 3: Erna gets dementia in twenty fifteen, Well, not too bad yet.
• 15:35
  Speaker 3: So in twenty fifteen Erna and James decide to deed
• 15:39
  Speaker 3: two of their properties in Alaska to Jimmy for great
• 15:42
  Speaker 3: love and affection. Okay, well, here goes the slippery slope.
• 15:47
  Speaker 3: Twenty sixteen, Erna does a new will with a new
• 15:50
  Speaker 3: attorney that jim had a connection with. I'm sorry that
• 15:53
  Speaker 3: Jimmy the son had a connection with. So now all
• 15:57
  Speaker 3: of a sudden, in the new will, Jimmy and Mary
• 15:59
  Speaker 3: are the prs and Lydia is out. Huh plot dickens Yeah.
• 16:06
  Speaker 3: Twenty seventeen, Erna has a knee injury and starts to
• 16:09
  Speaker 3: rely on Jimmy the Sun for a lot more support
• 16:12
  Speaker 3: and is on heavy painkillers. In December of twenty eighteen,
• 16:18
  Speaker 3: same day James, her husband dies, Jimmy records Erna stating
• 16:25
  Speaker 3: that her intention is to give two other Alaska properties
• 16:29
  Speaker 3: to Jimmy and Mary and a fifth property to Jimmy
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  Speaker 3: like a recorded will. Erna then transfers two hundred and
• 16:37
  Speaker 3: fifty thousand dollars to Jimmy. Erna also transferred the remaining
• 16:41
  Speaker 3: Alaska property to Jimmy. All that from twenty eighteen to
• 16:44
  Speaker 3: twenty nineteen, when she died on the day her husband died,
• 16:47
  Speaker 3: pretty much. Yeah.
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  Speaker 1: Yeah.
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  Speaker 3: So ten days later, Jimmy then buys some property in
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  Speaker 3: Connecticut and Lydia, the daughter who's no longer the pr
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  Speaker 3: decides to file for undue influenced claims and say all
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  Speaker 3: the properties have to be transferred back. The two hundred
• 17:02
  Speaker 3: and fifty thousand have to be transferred back. This is
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  Speaker 3: just bad. Yeah, court agreed, So they appeal. Jimmy says,
• 17:11
  Speaker 3: argues that under influenced standard only applies to testamentary transfers
• 17:16
  Speaker 3: transfers at death, not intravivos transfers transfers at life. Well,
• 17:23
  Speaker 3: the Appellotan court and the Supreme Court say, no, that's
• 17:27
  Speaker 3: not how it works. We agree with the lower court.
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  Speaker 3: There was a fiduciary relationship here between Jimmy and her mother,
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  Speaker 3: and that fiduciary relationship existed, and he had exerted influence
• 17:39
  Speaker 3: on her to make all this happen. So, Jimmy, you lose.
• 17:45
  Speaker 3: So good but bad, because why do we need to
• 17:48
  Speaker 3: go through all this headache to ensure our wishes of
• 17:51
  Speaker 3: treating our family equally is done. Let's do some more planning, folks.
• 17:56
  Speaker 3: One way to do that might have been set up
• 17:58
  Speaker 3: a trust and in this case with all the real estate.
• 18:00
  Speaker 3: Eight Maybe the irrevocable trust, which is the guide that
• 18:03
  Speaker 3: we're giving away this month, folks. It's the new guide
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  Speaker 3: for the month of June. The Power of Irrevocable Medicaid
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• 18:13
  Speaker 3: do and what you can't do during life, So from
• 18:16
  Speaker 3: living in your house to selling a house, to buying
• 18:19
  Speaker 3: another house to moving You know, do I have income
• 18:22
  Speaker 3: tax issues? How can I collect my income if I
• 18:24
  Speaker 3: put rental property in one after another? Folks, you will
• 18:28
  Speaker 3: learn if you've never known how these trusts work, and
• 18:30
  Speaker 3: you've never known if one was right for you or not.
• 18:34
  Speaker 3: After you read this guide, I think you will be
• 18:36
  Speaker 3: able to decide yes I want to get one, or no,
• 18:39
  Speaker 3: I hate them, So call and get it eight sixty
• 18:42
  Speaker 3: six eight four eight five six nine nine. That's true?
• 18:46
  Speaker 3: Could be or Legal Exchange Show dot Com again eight
• 18:50
  Speaker 3: six six eight four eight five six nine nine or
• 18:54
  Speaker 3: Legal Exchange Show dot Com Tips and lessons. Folks. What
• 18:59
  Speaker 3: do we learn from that? Well, keep an eye on Jimmy,
• 19:02
  Speaker 3: keep an eye on Jimmy, keep an eye on all
• 19:04
  Speaker 3: your family. But more importantly, this estate is full of
• 19:07
  Speaker 3: real estate. When you have real estate, you really should
• 19:11
  Speaker 3: be using a trust. I mean, planning with a will
• 19:14
  Speaker 3: is just bad news.
• 19:15
  Speaker 2: Right, because you can't have beneficiaries on your real estate, no,
• 19:18
  Speaker 2: and not like a regular account.
• 19:20
  Speaker 3: Well, I think what you're driving at by that point,
• 19:22
  Speaker 3: Susan is if you have a will, it's not even
• 19:23
  Speaker 3: going to help you avoid probate, right, And if it's
• 19:26
  Speaker 3: not going to help you avoid probate in this case,
• 19:29
  Speaker 3: they had property outside of Alaska, So now they could
• 19:33
  Speaker 3: be probating in multiple states Alaska plus every state in
• 19:39
  Speaker 3: which they owned real estate because they did not own
• 19:43
  Speaker 3: it in a trust.
• 19:45
  Speaker 2: And if they had a trust, it doesn't matter where
• 19:47
  Speaker 2: you own your property, right, that's right, you're not going
• 19:49
  Speaker 2: to probate with that property.
• 19:51
  Speaker 3: And that's really the key here. So simply by setting
• 19:54
  Speaker 3: up a trust, you would have avoided the probate problems
• 19:58
  Speaker 3: in all states. Of course, with this many pieces of property,
• 20:03
  Speaker 3: I don't know where what the values are in all
• 20:06
  Speaker 3: these states, but I'm guessing they probably had some value,
• 20:10
  Speaker 3: and there's probably worth some money here, and so if
• 20:14
  Speaker 3: they are, you know, you need to be thinking about
• 20:16
  Speaker 3: trusts in terms of taxes.
• 20:18
  Speaker 1: Right.
• 20:19
  Speaker 3: So here I would have said let's put it in
• 20:21
  Speaker 3: a trust. Even if the trust could be irrevocable, you know,
• 20:25
  Speaker 3: depending on the size of the estate, we can not
• 20:28
  Speaker 3: only avoid probate, but maybe get them protected from the
• 20:31
  Speaker 3: cost of long term care so that it ultimately goes
• 20:35
  Speaker 3: to who we want it to go to. And clearly
• 20:38
  Speaker 3: from the facts, it appears that she really wanted to
• 20:41
  Speaker 3: treat her family equally, helped them all the same, helped
• 20:45
  Speaker 3: them buy houses. So you want that to happen, and
• 20:48
  Speaker 3: we can ensure that with a trust, plus the trust
• 20:52
  Speaker 3: shelters from a state taxes. You know, on the first
• 20:55
  Speaker 3: death remember our last segment talks about the q tip
• 20:58
  Speaker 3: share and the remainder share. Well, we could have not
• 21:01
  Speaker 3: only protected it from the nursing home, avoided probate, and
• 21:03
  Speaker 3: perhaps eliminated taxes on the second death right. So that's important.
• 21:10
  Speaker 3: And I probably would have put two kids on as trustees,
• 21:13
  Speaker 3: because if you do that, it becomes a lot harder
• 21:16
  Speaker 3: for one kid to exert undue influence. And when it's
• 21:19
  Speaker 3: owned by a trust, it's not so easy just to
• 21:22
  Speaker 3: distribute property out of a trust.
• 21:24
  Speaker 2: Right in checks and balance give it.
• 21:26
  Speaker 3: Yeah, you could require two signatures, you know, that would
• 21:30
  Speaker 3: only happen if you know she can't serve, so you'd
• 21:33
  Speaker 3: you know, you have some checks and balances with a trust,
• 21:36
  Speaker 3: so I would certainly want to do that to further
• 21:39
  Speaker 3: support my position. And something else you don't think about here.
• 21:43
  Speaker 3: Sometimes when people do things like here, give me these properties,
• 21:48
  Speaker 3: and a lot of these were all gifted right before
• 21:52
  Speaker 3: she died. M Well, he doesn't realize it, but all
• 21:57
  Speaker 3: the built in gain when to him, so even if
• 22:01
  Speaker 3: he kept it now, he's trapped capital gains taxes on
• 22:05
  Speaker 3: all these properties that I'm guessing they probably bought years
• 22:08
  Speaker 3: and years and years ago.
• 22:10
  Speaker 2: And that would have been a taxi he would have
• 22:11
  Speaker 2: rightfully deserved.
• 22:12
  Speaker 3: That's right, that's true. But these are things that people
• 22:15
  Speaker 3: don't think about. Yeah, and even just the regular mom
• 22:20
  Speaker 3: and dads of the world that are that are thinking,
• 22:23
  Speaker 3: I don't need to do estate planning. I'm just going
• 22:24
  Speaker 3: to give stuff to my children and not helpful. Right,
• 22:28
  Speaker 3: you end up creating a tax liability that you don't need.
• 22:32
  Speaker 3: Because if she had set up a trust here for
• 22:34
  Speaker 3: the kids, then those properties would have not only been
• 22:37
  Speaker 3: protected for them, but we may have been able to
• 22:40
  Speaker 3: avoid estate taxes and die owning them. To get a
• 22:45
  Speaker 3: step up in basis, to eliminate the built in capital.
• 22:49
  Speaker 2: Gain, thus taxes are better.
• 22:50
  Speaker 3: People winning on both fronts income and estate tax side.
• 22:55
  Speaker 3: And to prevent and finally with the trust, to prevent
• 22:58
  Speaker 3: any fighting. Our trust off always have language in there
• 23:01
  Speaker 3: regarding offering the property to be sold unless they all
• 23:05
  Speaker 3: want it right and if they don't, the ones who
• 23:07
  Speaker 3: want it can always buy out the ones who don't,
• 23:09
  Speaker 3: so everybody's still treated equally, just with different assets. Folks
• 23:15
  Speaker 3: can't say enough about a trust when it comes to
• 23:18
  Speaker 3: real estate, for sure. The new guide this month deals
• 23:22
  Speaker 3: with a trust happens to be the irrevocable medicaid trust
• 23:25
  Speaker 3: variety that can still own real estate. It will tell
• 23:28
  Speaker 3: you how to do it. Get the guide. If you've
• 23:30
  Speaker 3: never understood that how they work, this will tell you
• 23:34
  Speaker 3: eight six six eight four eight five six nine nine
• 23:38
  Speaker 3: or Legal Exchange show dot com.
• 23:39
  Speaker 2: You've been listening to Todd Lutsky, a partner with the
• 23:42
  Speaker 2: law firm of Cushing and Dolan. I'm Susan Powers, a
• 23:45
  Speaker 2: financial advisor with the Armstrong Advisory Group. Tod will answer
• 23:49
  Speaker 2: your listener questions next on the Legal Exchange with Todd Lutsky.
• 23:53
  Speaker 1: Elder life planning can be overwhelming, so be sure you're
• 23:56
  Speaker 1: prepared or you could make costly mistakes that affect your
• 23:59
  Speaker 1: overall plan. Cushing and Dolan are experts in elder lawn
• 24:02
  Speaker 1: taxation and they can devise a plan that covers you
• 24:05
  Speaker 1: in every area where issues can rise. Irrevocable trusts so
• 24:08
  Speaker 1: are the most common type of trust that folks use
• 24:10
  Speaker 1: for financial protection, and while they can be complicated to create,
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• 24:17
  Speaker 1: protections that many of us need, like the possibility of
• 24:20
  Speaker 1: eliminating your estate taxes. Their new guide is called Unlocking
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  Speaker 1: or you can request the guide right now by visiting
• 24:40
  Speaker 1: legal exchange show dot com. The proceeding was paid for
• 24:43
  Speaker 1: and the views expressed are solely those of Cushing and Dolan.
• 24:45
  Speaker 1: Cushing and Dolan, ind or Armstrong Advisory may contact you
• 24:48
  Speaker 1: offering legal or investment services. Cushing and Dolan in Armstrong
• 24:50
  Speaker 1: Advisory do not endorse each other and are not affiliated.
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  Speaker 4: Preparing for retirement is a time consuming and challenging process. Hi,
• 25:57
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• 26:00
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• 26:39
  Speaker 1: The proceeding was paid for by Armstrong Advisory Group, a
• 26:41
  Speaker 1: registered investment advisor. Nothing in the ad or in any
• 26:44
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• 26:47
  Speaker 1: your own financial tax into state planning advisors before making
• 26:50
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• 26:53
  Speaker 1: advisory services. You're listening to the Legal Exchange, and it's
• 26:57
  Speaker 1: time for Ask Todd, the segment where Todd will answer
• 27:00
  Speaker 1: your questions about anything and everything that's included in the
• 27:04
  Speaker 1: estate planning process. Once again, here's Todd Lutsky and Susan Powers.
• 27:10
  Speaker 2: Welcome back, Tod. We have a few questions from listeners.
• 27:13
  Speaker 2: First question comes from Rose in Boston, mass And Rose writes,
• 27:17
  Speaker 2: my sister and I live together in a two family
• 27:19
  Speaker 2: home that we inherited from our parents years ago and
• 27:24
  Speaker 2: now own is joint tenants with rights of survivorship. We
• 27:27
  Speaker 2: are getting older and are worried about what will happen
• 27:29
  Speaker 2: to the other if one of us ends up in
• 27:31
  Speaker 2: a nursing home. What's the best way to protect each
• 27:34
  Speaker 2: other while still protecting our respective children's inheritances.
• 27:39
  Speaker 3: Yeah, so this is this becomes a big issue when
• 27:43
  Speaker 3: you have the siblings who own a piece of property
• 27:46
  Speaker 3: and I don't know if they live there. Just says
• 27:48
  Speaker 3: they own they.
• 27:48
  Speaker 2: Live there together. They do live there together, live there,
• 27:51
  Speaker 2: they own it together, but they both have job.
• 27:53
  Speaker 3: I missed the Cha children. Yes, so if they live
• 27:57
  Speaker 3: in the house, this is the two family, you know,
• 27:59
  Speaker 3: summer Bill properly, you kind of think of it that way.
• 28:02
  Speaker 3: Where where we've got siblings living up and down in
• 28:05
  Speaker 3: the in the building. Couple of things I've had this
• 28:09
  Speaker 3: happen where one family comes in, Let's say Rose, but
• 28:14
  Speaker 3: Rose's sister doesn't come in. I can tell Rose, Yeah,
• 28:17
  Speaker 3: to do planning. Yeah, I can tell Rose. Rose. Probably
• 28:20
  Speaker 3: if you want to protect us, we'll, you know, figure
• 28:22
  Speaker 3: out what the size of your estate is. And if
• 28:24
  Speaker 3: you want the nursing home protection, then you know, we'll
• 28:26
  Speaker 3: discuss these medicaid irrevocable trusts and how you can put
• 28:31
  Speaker 3: your home in there and how it works, how you
• 28:33
  Speaker 3: can live there and sell it and pay for your
• 28:36
  Speaker 3: expenses and really not disrupt your life at all, but
• 28:40
  Speaker 3: avoid the probate, get a five year clock running, protect
• 28:44
  Speaker 3: it from the cost of nursing home care, and provide
• 28:46
  Speaker 3: when you die for it to go to your family
• 28:50
  Speaker 3: the way you want it to go to, which is
• 28:52
  Speaker 3: what she's saying here. I wanted to go to my
• 28:53
  Speaker 3: side of the family, not to my sister. And again,
• 28:57
  Speaker 3: if you own it jointly, it will go to this
• 29:00
  Speaker 3: and not your side of the family. So doing nothing
• 29:03
  Speaker 3: is not really a good option here. But doing that planning.
• 29:08
  Speaker 3: Let's say we put together that whole planning. Now we're
• 29:10
  Speaker 3: accomplishing all of her wishes. She says, yeah, this is great,
• 29:14
  Speaker 3: sign me up, and we do it. If I don't
• 29:19
  Speaker 3: hear from the sister, have we really protected the house
• 29:23
  Speaker 3: from the nursing.
• 29:24
  Speaker 2: Home only for the sister, right, Well.
• 29:28
  Speaker 3: We protected the house from the nursing home for the
• 29:30
  Speaker 3: one who came in to do the planning, but only half, right,
• 29:35
  Speaker 3: And if this is not condominiumized, meaning she actually owns
• 29:41
  Speaker 3: half one unit and it's just all on one deed
• 29:47
  Speaker 3: and sister on the first floor doesn't do planning and
• 29:52
  Speaker 3: gets sick and goes to the nursing home, then her
• 29:56
  Speaker 3: that half of the house will be at risk for
• 29:59
  Speaker 3: them nursing home. Right, Okay, So we don't love this
• 30:03
  Speaker 3: because she would then need to do some planning to really,
• 30:06
  Speaker 3: because if you don't have the bottom the owner whoever's
• 30:10
  Speaker 3: living in the bottom of the house do the planning,
• 30:14
  Speaker 3: then what would happen is that the person who did
• 30:17
  Speaker 3: the planning would have two choices, sell and take half
• 30:21
  Speaker 3: the money mm hmm, or buy out the interest of
• 30:24
  Speaker 3: the sister who went to the nursing home to save
• 30:27
  Speaker 3: the house.
• 30:27
  Speaker 2: Right, and who knows if she'd be able to do
• 30:29
  Speaker 2: that financially.
• 30:30
  Speaker 3: And then even if you do it, then the sister
• 30:31
  Speaker 3: who went in the nursing home has kids and wants
• 30:35
  Speaker 3: her have to go to her kids.
• 30:36
  Speaker 2: Right.
• 30:36
  Speaker 3: That didn't help her kids at all. Because there's also
• 30:40
  Speaker 3: an exception whereas if you have an equity interest in
• 30:42
  Speaker 3: property and your siblings and you live together for at
• 30:45
  Speaker 3: least one year, then you are allowed to transfer the
• 30:48
  Speaker 3: house to the surviving, the healthy sibling with no five
• 30:52
  Speaker 3: year waiting period.
• 30:53
  Speaker 2: But that doesn't protect your kids.
• 30:54
  Speaker 3: Right exactly, Susan, That's where I'm headed, right. So, even
• 30:59
  Speaker 3: though there's this backdoor exception where maybe she the person
• 31:03
  Speaker 3: who did the planning, doesn't have to buy out the interest,
• 31:05
  Speaker 3: can just get it to preserve it, but then she
• 31:09
  Speaker 3: owns it all and I don't know who's she going
• 31:12
  Speaker 3: to leave it to. So there could be nieces and
• 31:14
  Speaker 3: nephews from the sister, the sister's kids who are looking
• 31:20
  Speaker 3: to get it.
• 31:21
  Speaker 2: Yeah, they both need to do irrevocable trust planning.
• 31:24
  Speaker 3: So that's a great, great point and a great situation
• 31:28
  Speaker 3: that can be resolved with these Medicaid irrevocable trust folks.
• 31:32
  Speaker 3: That's what the guide is this month, the power of
• 31:34
  Speaker 3: the irrevocable Medicaid trust. Both of these families should come
• 31:37
  Speaker 3: in and probably put their respective halves into their own
• 31:41
  Speaker 3: irrevocable trust, thereby fully protecting the property for each side
• 31:46
  Speaker 3: of the family. Everybody's happy, but you need to understand
• 31:50
  Speaker 3: how they work. And this is an operational guide. Question
• 31:53
  Speaker 3: and answer. Living in the house, renting a house, selling
• 31:57
  Speaker 3: a house, buying another house? Do I have to pay
• 32:00
  Speaker 3: income taxes on the trust? All these questions that people
• 32:03
  Speaker 3: worry about will be answered in this guide. So call
• 32:07
  Speaker 3: and get it eight six six eight four eight five
• 32:11
  Speaker 3: six nine nine or Legal Exchange Show dot com again
• 32:15
  Speaker 3: eight six six eight four eight five six nine nine
• 32:19
  Speaker 3: or Legal Exchange Show dot com.
• 32:22
  Speaker 2: Todd. Our last question comes from Rich in Westborough, mass
• 32:25
  Speaker 2: and Rich writes, my wife and I have an irrevocable
• 32:29
  Speaker 2: trust that we created with you around eight years ago.
• 32:32
  Speaker 2: We are going to be putting our rental property up
• 32:34
  Speaker 2: for sale this year. Do we need to do anything
• 32:37
  Speaker 2: special since it is in the trust? What can we
• 32:40
  Speaker 2: do with the proceeds of the sale.
• 32:42
  Speaker 3: I'm going to start by saying the most important special
• 32:45
  Speaker 3: thing that you need to do before you put this
• 32:49
  Speaker 3: property up for sale is call me. In this case,
• 32:53
  Speaker 3: it's me because it's it's apparently our client, so or
• 32:57
  Speaker 3: I'll tell you for other people listening, call your lawyer,
• 33:01
  Speaker 3: and don't do the sale without consulting the person who
• 33:06
  Speaker 3: created the trust, because you're going to go find a realtor.
• 33:10
  Speaker 3: The realtor's going to tell you, oh, I have a
• 33:13
  Speaker 3: closing lawyer that can help you with the real estate.
• 33:16
  Speaker 3: Let's just go over here and get this thing done.
• 33:18
  Speaker 3: That realtor, that real estate lawyer. No offense to the
• 33:21
  Speaker 3: real estate lawyer might not just understand the nuances of
• 33:26
  Speaker 3: a trust from a tax perspective and a nursing home perspective,
• 33:32
  Speaker 3: and might just sell the property and end up cutting
• 33:34
  Speaker 3: a check to you. If it goes to you, the
• 33:39
  Speaker 3: donor of the trust, then you run the not run
• 33:42
  Speaker 3: the risk you completely blow your five year waiting period,
• 33:46
  Speaker 3: which you don't want to do because you should be
• 33:49
  Speaker 3: able to sell the house very easily from the trust.
• 33:53
  Speaker 3: Money goes back into the trust. If it does, that
• 33:57
  Speaker 3: transaction does not reset the five year waiting period. And
• 34:02
  Speaker 3: then you will be in touch with the lawyer because
• 34:05
  Speaker 3: it's possible, now that you sold your home, you're homeless,
• 34:07
  Speaker 3: as funny as that might sound, you want to buy
• 34:11
  Speaker 3: another one. Maybe you're moving, maybe you're going to Maine.
• 34:15
  Speaker 3: Out goes the property. Incomes a new house. I'm sorry,
• 34:19
  Speaker 3: out goes the money. Yep, incomes a new house that
• 34:23
  Speaker 3: you bought in another state or any state. Again, that
• 34:27
  Speaker 3: transaction does not restart the five year waiting period.
• 34:32
  Speaker 2: And what about in this case Todd, where they're selling
• 34:34
  Speaker 2: a rental property and they're not buying anything in replacement,
• 34:37
  Speaker 2: what can they actually do with the money that's now
• 34:39
  Speaker 2: owned by their trust Yeah?
• 34:41
  Speaker 3: Great, great points. So again, the same transaction would apply.
• 34:44
  Speaker 3: It would not reset the clock.
• 34:46
  Speaker 2: And their trustee has to sign all this PaperWorks, all right, Yeah,
• 34:49
  Speaker 2: they're not signing it themselves.
• 34:50
  Speaker 3: Oh they're not. But now there's money in there. Well,
• 34:53
  Speaker 3: I guess if they're not replacing the property, I suppose
• 34:56
  Speaker 3: they're going to invest it. So now they're going to
• 34:58
  Speaker 3: call you and they're going to start saying what do
• 35:02
  Speaker 3: I do to invest it? So they'll have all the
• 35:04
  Speaker 3: same options of investing that they would have had had
• 35:09
  Speaker 3: they not done the trust and it was sitting in
• 35:11
  Speaker 3: their own hands. Then once it's invested, they can sit
• 35:15
  Speaker 3: back and collect the income.
• 35:17
  Speaker 2: Which they're still entitled to, just like the rental.
• 35:20
  Speaker 3: And they would be able to now replace the rent
• 35:23
  Speaker 3: which they were getting when it was in the trust, remember,
• 35:25
  Speaker 3: because the rent would come in and the rent would
• 35:27
  Speaker 3: come out. Now they've replaced the rental flow with interest
• 35:31
  Speaker 3: and dividend flow, which is also okay, and they continue
• 35:35
  Speaker 3: to pay the same income taxes at their own rate,
• 35:39
  Speaker 3: and life goes on for them.
• 35:40
  Speaker 2: And so where they still have this bucket of money
• 35:43
  Speaker 2: owned by the trust, and then their primary residence is
• 35:46
  Speaker 2: also owned by the trust. Can they use some of
• 35:48
  Speaker 2: that bucket of money to pay for things for their
• 35:52
  Speaker 2: primary residents like taxes and improvements and things like that.
• 35:55
  Speaker 3: That's great question. Let's focus more on like, oh, I
• 35:58
  Speaker 3: need the new kitchen.
• 35:59
  Speaker 2: I need the new back big expenses.
• 36:01
  Speaker 3: And it's these big expenses and they say, well, you
• 36:03
  Speaker 3: can't take it out. Well, yeah, that's true, but you
• 36:05
  Speaker 3: are allowed to reinvest the money from the brokerage account
• 36:10
  Speaker 3: saying I want to sell this stock and I want
• 36:12
  Speaker 3: to now buy a new kitchen. Right, Well, that's okay,
• 36:15
  Speaker 3: pay the contractor. Yeah, contractor builds the new kitchen, and
• 36:19
  Speaker 3: now you've improved the value of your house. So that's
• 36:23
  Speaker 3: just rearranging your investments. Folks, learn there's so much you
• 36:27
  Speaker 3: can do. All of those things can be done with
• 36:30
  Speaker 3: the house in an irrevocable Medicaid trust. Get the new
• 36:33
  Speaker 3: Guide eight six six eight four eight five six nine
• 36:37
  Speaker 3: to nine or Legal Exchange Show dot com.
• 36:40
  Speaker 2: If you have a question you'd like to ask Todd,
• 36:42
  Speaker 2: visit his website, Legal Exchange Show dot com and click
• 36:46
  Speaker 2: on the ass Tod tab. Maybe I'll be able to
• 36:48
  Speaker 2: read your question on the air, and hopefully his answer
• 36:51
  Speaker 2: will stop you from becoming one of his next real
• 36:53
  Speaker 2: life stories. You've been listening to Todd Lutsky, a partner
• 36:57
  Speaker 2: with the law firm of Cushing and Dolan. I'm Susan Powers,
• 37:01
  Speaker 2: a financial advice with the Armstrong Advisory Group. We'll be
• 37:04
  Speaker 2: back with more right after this on the Legal Exchange
• 37:07
  Speaker 2: with Todd Lutski.
• 37:09
  Speaker 1: Elder life planning can be overwhelming, so be sure you're prepared,
• 37:13
  Speaker 1: or you could make costly mistakes that affect your overall plan.
• 37:16
  Speaker 1: Cushing and Dolan are experts in elder lawn taxation and
• 37:19
  Speaker 1: they can devise a plan that covers you in every
• 37:21
  Speaker 1: area where issues can rise. Irrevocable trusts are the most
• 37:24
  Speaker 1: common type of trust that folks use for financial protection,
• 37:27
  Speaker 1: and while they can be complicated to create, they help
• 37:30
  Speaker 1: keep your assets safe because they contain specific protections that
• 37:33
  Speaker 1: many of us need, like the possibility of eliminating your
• 37:36
  Speaker 1: estate taxes. Their new guide is called Unlocking the Power
• 37:39
  Speaker 1: of Irrevocable Medicaid Trusts. Learn more about how these trusts
• 37:43
  Speaker 1: can benefit you and your family by calling eight six
• 37:45
  Speaker 1: six eight four eight five six ninety nine right now
• 37:48
  Speaker 1: and asking for your free guide today. That's eight sixty
• 37:51
  Speaker 1: six eight four eight five six nine nine, or you
• 37:54
  Speaker 1: can request the guide right now by visiting legal exchange
• 37:56
  Speaker 1: show dot com. The proceeding was paid for in the
• 37:59
  Speaker 1: views expressed our those of Cushing and Dolan. Cushing and
• 38:01
  Speaker 1: Dolan Indoor Armstrong Advisory may contact you offering legal or
• 38:04
  Speaker 1: investment services. Cushing and Dolan in Armstrong Advisory do not
• 38:07
  Speaker 1: endorse each other and are not affiliated there.
• 38:10
  Speaker 4: Are many different elements to a complete retirement plan, and
• 38:13
  Speaker 4: it takes time to make sure you've covered all your bases. Hi,
• 38:16
  Speaker 4: this is Mike Armstrong from the Armstrong Advisory Group. Our
• 38:18
  Speaker 4: new guide is called your Retirement Preparation Checklist, and it
• 38:21
  Speaker 4: may offer you the guidance you need to make the
• 38:24
  Speaker 4: right decisions about your retirement plan, from deciding on a
• 38:26
  Speaker 4: specific date to retire, to reviewing your income sources to
• 38:29
  Speaker 4: picking a place to live. This guide discusses numerous topics
• 38:33
  Speaker 4: that are important to your overall planning. Many other issues
• 38:35
  Speaker 4: need to be considered as well, like solidifying your estate
• 38:38
  Speaker 4: plan and establishing lifestyle goals. Call us right now at
• 38:41
  Speaker 4: eight hundred three nine three four zero zero one and
• 38:44
  Speaker 4: ask for your free guide today. That number again is
• 38:46
  Speaker 4: eight hundred three nine three four zero zero one, or
• 38:49
  Speaker 4: you can request it online at Armstrong Advisory dot com.
• 38:52
  Speaker 4: That's Armstrong Advisory dot com.
• 38:54
  Speaker 1: The proceeding was paid for by Armstrong Advisory Group, a
• 38:57
  Speaker 1: registered investment advisor. Nothing in the ad or in any
• 38:59
  Speaker 1: Armstrong god to specific financial, legal or tax advice. Consult
• 39:02
  Speaker 1: your own financial, tax into state planning advisors before making
• 39:05
  Speaker 1: any investment decisions. Armstrong may contact you to offer investment
• 39:08
  Speaker 1: advisory services. Summer in New England is nearly upon us.
• 39:12
  Speaker 1: The kids are home from school, the sun doesn't set
• 39:14
  Speaker 1: until after eight. It's likely time for you to relax. Well.
• 39:18
  Speaker 1: While you're relaxing, take a few minutes to check out
• 39:20
  Speaker 1: visit USVII dot com and research your next vacation in
• 39:23
  Speaker 1: the United States Virgin Islands. The USVII has something for everyone,
• 39:28
  Speaker 1: be it the rich history of Saint Croix, the spectacular
• 39:30
  Speaker 1: beaches of Saint Thomas, or the tranquill quiet of Saint John.
• 39:34
  Speaker 1: Visit one island or all three and enjoy the vacation
• 39:37
  Speaker 1: of a lifetime. From the moment you arrive, you'll fall
• 39:40
  Speaker 1: naturally in rhythm with the heartbeat of the islands. There's
• 39:43
  Speaker 1: no money to exchange, and travel from New England could
• 39:45
  Speaker 1: not be easier. Whether you're looking for a romantic getaway
• 39:49
  Speaker 1: or a family vacation, the US Virgin Islands is the
• 39:52
  Speaker 1: perfect place for your next adventure. Go to visit USVII
• 39:55
  Speaker 1: dot com right now for more information and to book
• 39:58
  Speaker 1: your trip. U is America's Caribbean paradise. Go to visit
• 40:03
  Speaker 1: USVII dot com to make your reservation today. That's visit
• 40:07
  Speaker 1: USVII dot com.
• 40:09
  Speaker 5: This is Michael Valila, adjudent of the Disabled American Veterans
• 40:13
  Speaker 5: Department of Massachusetts. The DAV of Massachusetts has helped me
• 40:17
  Speaker 5: and countless others adjust to civilian life through a variety
• 40:20
  Speaker 5: of incredible programs. Through our Local Veterans Assistance Program, we
• 40:24
  Speaker 5: provide necessary services to veterans in their communities such as food, shopping, landscaping,
• 40:30
  Speaker 5: and companionship. But we need your support. You can help
• 40:33
  Speaker 5: by making a donation today. Please visit DAV FIVEK dot Boston.
• 40:37
  Speaker 5: That's DAV five K dot Boston.
• 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 homes day,
• 40:45
  Speaker 1: call Todd right now at eight sixty six eight four
• 40:48
  Speaker 1: eight five six ninet nine and let him make sure
• 40:50
  Speaker 1: your assets are protected. That's eight six six eight for
• 40:53
  Speaker 1: eight five six nine nine, or visit him online at
• 40:56
  Speaker 1: Legal Exchange show dot com.
• 40:58
  Speaker 2: Welcome back into the Lee 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 the law firm of Cushing and Dolan with a
• 41:11
  Speaker 2: master's in taxation. So your guide this month, Todd, is
• 41:15
  Speaker 2: unlocking the power of the medicaid irrevocable or irrevocable medicaid trusts.
• 41:21
  Speaker 2: Who should actually consider using these types of trusts?
• 41:26
  Speaker 3: Yeah, I think that's a great place to start, you know.
• 41:30
  Speaker 3: I generally will ask questions in an initial meeting with
• 41:35
  Speaker 3: clients to determine what objectives might make sense for them,
• 41:40
  Speaker 3: and then they can tell me whether those objectives do
• 41:44
  Speaker 3: matter to them or not. So if you came in
• 41:47
  Speaker 3: and you were like thirty five years old, I would
• 41:50
  Speaker 3: not even ask about an irrevocable medicaid trust because to me,
• 41:54
  Speaker 3: it doesn't even make sense to offer that. However, if
• 41:59
  Speaker 3: you come in and you're you know, sixty two sixty five,
• 42:04
  Speaker 3: you know, I'm probably going to ask the question one
• 42:09
  Speaker 3: of the objectives you have might be protecting assets from
• 42:12
  Speaker 3: the nursing home. If they say yes, then I can
• 42:16
  Speaker 3: explain at the whiteboard how this irrevocable trust works.
• 42:21
  Speaker 2: And if they say not, really, yeah, it's really not
• 42:24
  Speaker 2: my worry.
• 42:25
  Speaker 3: I think we can pay our own or we got
• 42:27
  Speaker 3: good long term care insurance. Or whatever the case may be. Well,
• 42:31
  Speaker 3: then we can close the book on the irrevocable type trust,
• 42:35
  Speaker 3: and then we know when we get to the whiteboard,
• 42:36
  Speaker 3: we'll be talking about the revocable trust. Because remember, folks,
• 42:41
  Speaker 3: the revocable trust and the irrevocable medicaid trust in this
• 42:45
  Speaker 3: case does almost exactly the same thing except for one thing.
• 42:51
  Speaker 3: They both avoid probate, they both help you reduce or
• 42:55
  Speaker 3: eliminate your taxes, and they both provide bloodline planning for
• 43:01
  Speaker 3: the children.
• 43:02
  Speaker 2: But the thing that's different.
• 43:04
  Speaker 3: The irrevocable trust provides nursing home protection and the revocable
• 43:09
  Speaker 3: never will.
• 43:10
  Speaker 2: So if you want that nursing home protection, you have
• 43:12
  Speaker 2: to use the air evocable Uh yes, okay, yes you
• 43:16
  Speaker 2: really do.
• 43:17
  Speaker 3: There's just if you have a revocable Please don't sitting
• 43:20
  Speaker 3: at home thinking I got my five year clock running.
• 43:22
  Speaker 3: Never started right, right, never started.
• 43:25
  Speaker 2: So there are a lot of people out there. They
• 43:28
  Speaker 2: like to maintain control of their things. Not that I'm
• 43:32
  Speaker 2: saying I'm one of those people, but I might be.
• 43:34
  Speaker 3: I think you are.
• 43:35
  Speaker 2: So if I came in to see you to do
• 43:37
  Speaker 2: an irrevocable trust, you're gonna tell me that I can't
• 43:42
  Speaker 2: be my own trustee. Can you explain why that is?
• 43:46
  Speaker 3: Yeah, so I've done it in the past. Obviously, tax laws,
• 43:52
  Speaker 3: rules change and evolve, and we evolve our trusts along
• 43:56
  Speaker 3: with them. The only reason I don't like it is
• 43:59
  Speaker 3: I've had to fight a few battles, all of which
• 44:01
  Speaker 3: we've won, knock on woods. So don't worry if you
• 44:04
  Speaker 3: happen to be trustee of your trust. But the battle
• 44:07
  Speaker 3: that you face when you're applying for Medicaid when you're
• 44:11
  Speaker 3: the trustee is there's a little paragraph in the trust
• 44:14
  Speaker 3: that says trustees are entitled to reasonable compensation, which, of course,
• 44:20
  Speaker 3: if you didn't have that, no professional trustee would take
• 44:23
  Speaker 3: the job.
• 44:24
  Speaker 2: No, they wouldn't do it for frase, So you know.
• 44:27
  Speaker 3: But obviously if you're your own trustee, you're not paying yourself,
• 44:31
  Speaker 3: right it says entitled to you don't have to take it. Well,
• 44:38
  Speaker 3: the state has come back and tried to make arguments that, well,
• 44:42
  Speaker 3: if you're entitled to get paid, then that means you
• 44:45
  Speaker 3: if there's no income being generated by the trust, the
• 44:49
  Speaker 3: only way you can get paid is with principle. And therefore,
• 44:52
  Speaker 3: because you have access to principle to get paid all
• 44:55
  Speaker 3: the assets and the trust are at risk.
• 44:57
  Speaker 2: It's a bit of a stretch, and it is.
• 44:58
  Speaker 3: And it hasn't won the best case scenario. I think
• 45:01
  Speaker 3: they've come back and they've said, well, since you are
• 45:04
  Speaker 3: demanding all the assets are at risk, none of them
• 45:07
  Speaker 3: are because trustees aren't entitled reasonable compensation does not result
• 45:13
  Speaker 3: in getting paid a million dollar home. You just get
• 45:17
  Speaker 3: a piece, a little piece of what would be considered income.
• 45:22
  Speaker 3: So they've lost on that argument many times. And generally
• 45:25
  Speaker 3: there are times where the trust actually has income producing assets,
• 45:31
  Speaker 3: like investments, and then you can run the numbers and say, well,
• 45:35
  Speaker 3: here's what I'm entitled to a half a basis point
• 45:38
  Speaker 3: of what's in the trust, and we're generating X number
• 45:41
  Speaker 3: of dollars of income, which is way more than then
• 45:45
  Speaker 3: the payment you're going to get as a trustee. Therefore,
• 45:48
  Speaker 3: you're only entitled to income and you still win. I
• 45:51
  Speaker 3: just don't want to cross that bridge, so there's no
• 45:54
  Speaker 3: reason to so in that regard, I wouldn't necessarily serve
• 45:58
  Speaker 3: as trustee. But we can talk about who could be trustee.
• 46:02
  Speaker 3: And by the way, the guide explains all of this,
• 46:05
  Speaker 3: It explains who can be the trustee, who can be
• 46:07
  Speaker 3: the donor, How you can get income, how you invest
• 46:10
  Speaker 3: the money? What are the gift and income tax ramifications
• 46:14
  Speaker 3: of setting this up? How can you live in your house?
• 46:16
  Speaker 3: Folks on and on operational guide as to how this
• 46:20
  Speaker 3: irrevocable trust works. Call and get it and you'll know
• 46:24
  Speaker 3: when you're done whether you like them or not. Eight
• 46:27
  Speaker 3: six six eight four eight five six nine nine or
• 46:31
  Speaker 3: Legal Exchange Show dot com again eight six six eight
• 46:35
  Speaker 3: four eight five six nine nine or Legal Exchange Show
• 46:40
  Speaker 3: dot com.
• 46:40
  Speaker 2: So, if you have a couple of kids, todd, okay,
• 46:43
  Speaker 2: do you typically have your child serve one of your
• 46:45
  Speaker 2: children's service TRUSTe? Who do you typically recommend serve in
• 46:49
  Speaker 2: that role for this?
• 46:49
  Speaker 3: Yea? I tend to lean towards a child. Again, I
• 46:52
  Speaker 3: always ask them, do you guys have good relationships with
• 46:54
  Speaker 3: your children? And are they level headed? And you know
• 46:56
  Speaker 3: these kinds of things. But if they are, then then
• 47:00
  Speaker 3: then yeah, I would say put a child on.
• 47:02
  Speaker 2: And how about those folks that say, well, I have
• 47:05
  Speaker 2: three kids and I don't want any of them to
• 47:07
  Speaker 2: feel bad that I'm picking the other one as trustee.
• 47:11
  Speaker 2: I want three trustees.
• 47:12
  Speaker 3: I tell them too bad? No, No, I don't tell them.
• 47:14
  Speaker 2: That I cringe a little when I see that there's
• 47:16
  Speaker 2: more than two.
• 47:17
  Speaker 3: Yeah, I just I sort of explained to them that
• 47:19
  Speaker 3: that they're not going to feel bad. Believe me, if
• 47:22
  Speaker 3: they're treated equally, as what matters. And if you can
• 47:25
  Speaker 3: be treated equally and not have a job and still
• 47:29
  Speaker 3: get money, you should be saying, actually the spin there
• 47:32
  Speaker 3: as I'm happy I wasn't listed as the trustee and
• 47:36
  Speaker 3: to have to deal with all of this, I just
• 47:39
  Speaker 3: sit back and get it right. Yeah, So it's usually
• 47:42
  Speaker 3: not a problem.
• 47:43
  Speaker 2: In all of those assets once you transfer them into
• 47:46
  Speaker 2: the name of your trust. None of those assets are
• 47:49
  Speaker 2: going to probate. Correct, that's correct, None of them go
• 47:52
  Speaker 2: to probate at all. And they you know, and that's
• 47:55
  Speaker 2: that's a big reason to do them. And then for
• 47:58
  Speaker 2: those folks that are out there saying, yeah, well this
• 48:01
  Speaker 2: sounds like me, I want to protect from those nursing
• 48:04
  Speaker 2: home expenses. It's not an immediate thing, correct, right.
• 48:10
  Speaker 3: It takes five years to do it. So when you
• 48:13
  Speaker 3: put the assets in, you know, you've got to realize
• 48:17
  Speaker 3: that it's not I can put them in today and
• 48:19
  Speaker 3: get sick and go in the nursing home tomorrow. That's
• 48:22
  Speaker 3: not how it works. You do it in advance. That's
• 48:24
  Speaker 3: why at sixty two when I mentioned sixty five, these
• 48:27
  Speaker 3: are great ages, Yeah, to start thinking about this, because
• 48:30
  Speaker 3: if I'm going to move my million dollar home in,
• 48:33
  Speaker 3: if I'm going to move my million dollar investment portfolio
• 48:37
  Speaker 3: into the trust, I know I'm not going to get
• 48:40
  Speaker 3: sick tomorrow. I want to do it now so that
• 48:41
  Speaker 3: by the time I'm seventy it's in my rearview mirror
• 48:45
  Speaker 3: not starting. But that doesn't mean you don't start. If
• 48:48
  Speaker 3: you haven't. Still get it running is always better than
• 48:51
  Speaker 3: not having that clock running.
• 48:53
  Speaker 2: So you'll have quite a good portion of your assets
• 48:55
  Speaker 2: owned by this trust. Let's let's go back to the
• 48:59
  Speaker 2: question do we had earlier, which is I'm going to
• 49:01
  Speaker 2: be selling my rental property. What happens if you want
• 49:07
  Speaker 2: to sell your rental property but your trustee says, no,
• 49:11
  Speaker 2: I don't think so I really like that property. I
• 49:13
  Speaker 2: wanted to inherit it.
• 49:14
  Speaker 3: No, I love the k Palace. We're not selling, right,
• 49:18
  Speaker 3: And that's exactly right. And I think this goes back
• 49:21
  Speaker 3: to our whole question earlier about trustees and and why
• 49:26
  Speaker 3: you know I told you that you shouldn't serve as trustee.
• 49:29
  Speaker 3: But you mentioned control, and do we give up the
• 49:33
  Speaker 3: control piece by putting a child on because I.
• 49:37
  Speaker 2: Don't want to ask permissions as trustee.
• 49:39
  Speaker 3: I'm on your side for sure, and so I think
• 49:44
  Speaker 3: we need to explain that we're not giving up that
• 49:47
  Speaker 3: control by adding a child as trustee, because we give
• 49:51
  Speaker 3: the donor the power to remove and replace the trustee,
• 49:56
  Speaker 3: but not with themselves, Okay, so they can remove and
• 50:00
  Speaker 3: replace any time there need be no cause. So you
• 50:04
  Speaker 3: simply say, oh, if you're not going to cooperate, then
• 50:07
  Speaker 3: I'm going to remove you. Go to the next child,
• 50:09
  Speaker 3: or pick an accountant, pick a lawyer.
• 50:11
  Speaker 2: You didn't call me on Mother's Day.
• 50:13
  Speaker 3: You're out, folks. You get to retain the control over
• 50:18
  Speaker 3: the assets and the trust even though you're not the trustee.
• 50:23
  Speaker 3: I'm going to leave that with you because that's the
• 50:25
  Speaker 3: most important reason perhaps to get this guide to help
• 50:28
  Speaker 3: you come overcome your fear that you're setting up an
• 50:30
  Speaker 3: irrevocable trust and that you're losing control, because I think
• 50:34
  Speaker 3: when you read it you'll see you're not eight six
• 50:36
  Speaker 3: six eight four eight five six nine nine or Legal
• 50:40
  Speaker 3: Exchange show dot com.
• 50:42
  Speaker 2: Todd Lutsky from the law firm of Cushing in Dolan.
• 50:45
  Speaker 2: Thank you so much.
• 50:46
  Speaker 3: Thank you, Susan, always a pleasure.
• 50:47
  Speaker 2: I'm Susan Powers, a financial advisor with the Armstrong Advisory Group.
• 50:51
  Speaker 2: We thank you for joining us today and we'll be
• 50:53
  Speaker 2: back again next week on the Legal Exchange with Todd Lutsky.
• 50:58
  Speaker 1: Elder life planning can be overwhelming, so be sure you're
• 51:01
  Speaker 1: prepared or you could make costly mistakes that affect your
• 51:04
  Speaker 1: overall plan. Cushing and Dolan are experts in elder lawn
• 51:07
  Speaker 1: taxation and they can devise a plan that covers you
• 51:10
  Speaker 1: in every area where issues can rise. Irrevocable trusts so
• 51:13
  Speaker 1: the most common type of trust that folks use for
• 51:16
  Speaker 1: financial protection, and while they can be complicated to create,
• 51:19
  Speaker 1: they help keep your assets safe because they contain specific
• 51:22
  Speaker 1: protections that many of us need, like the possibility of
• 51:25
  Speaker 1: eliminating your estate taxes. Their new guide is called Unlocking
• 51:28
  Speaker 1: the Power of Irrevocable Medicaid Trusts. Learn more about how
• 51:32
  Speaker 1: these trusts can benefit you and your family by calling
• 51:34
  Speaker 1: eight six six eight four eight five six ninety nine
• 51:37
  Speaker 1: right now and asking for your free guide today. That's
• 51:40
  Speaker 1: eight six six eight four eight five six ninety nine,
• 51:43
  Speaker 1: or you can request the guide right now by visiting
• 51:45
  Speaker 1: Legal Exchange show dot com. The proceeding was paid for
• 51:48
  Speaker 1: in The views expressed are solely those of Cushing and Dolan.
• 51:50
  Speaker 1: Cushing and Dolan ind or Armstrong Advisory may contact you're
• 51:53
  Speaker 1: offering legal or investment services. Cushing and Dolan in Armstrong
• 51:56
  Speaker 1: Advisory do not endorse each other and are not affiliated.
• 52:00
  Speaker 1: New England is nearly upon us. The kids are home
• 52:02
  Speaker 1: from school, the sun doesn't set until after eight. It's
• 52:05
  Speaker 1: likely time for you to relax. Well. While you're relaxing,
• 52:08
  Speaker 1: take a few minutes to check out visit USVII dot
• 52:11
  Speaker 1: com and research your next vacation in the United States
• 52:14
  Speaker 1: Virgin Islands. The USVII has something for everyone, be it
• 52:18
  Speaker 1: the rich history of Saint Croix, the spectacular beaches of
• 52:20
  Speaker 1: Saint Thomas, or the tranquill quiet of Saint John. Visit
• 52:24
  Speaker 1: one island or all three and enjoy the vacation of
• 52:26
  Speaker 1: a lifetime. From the moment you arrive, you'll fall naturally
• 52:30
  Speaker 1: in rhythm with the heartbeat of the islands. There's no
• 52:32
  Speaker 1: money to exchange, and travel from New England could not
• 52:35
  Speaker 1: be easier. Whether you're looking for a romantic getaway or
• 52:39
  Speaker 1: a family vacation, the US Virgin Islands is the perfect
• 52:42
  Speaker 1: place for your next adventure. Go to visit USVII dot
• 52:45
  Speaker 1: com right now for more information and to book your trip.
• 52:49
  Speaker 1: The USVII is America's Caribbean paradise. Go to visit USVII
• 52:54
  Speaker 1: dot com to make your reservation today. That's visit USVII
• 52:58
  Speaker 1: dot com.
• 53:00
  Speaker 4: Preparing for retirement is a time consuming and challenging process. Hi,
• 53:03
  Speaker 4: this is Mike Armstrong from the Armstrong Advisory Group and
• 53:06
  Speaker 4: if you're at the point where you can see retirement approaching,
• 53:08
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  Speaker 1: The proceeding was paid for by Armstrong Advisory Group, a
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