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Why a Will Is Not Enough to Protect Your Estate · 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
• 0:10
  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
• 0:27
  Speaker 1: eight five six ninety nine. Operators are standing by. Now
• 0:31
  Speaker 1: Here are your hosts, Todd Lutsky and Susan Powers.
• 0:37
  Speaker 2: Welcome into the Legal Exchange with Todd Lutsky. I'm Susan Powers,
• 0:41
  Speaker 2: a financial advisor with the Armstrong Advisory Group, and I'm
• 0:44
  Speaker 2: joined by Todd Lutsky, a partner with the law firm
• 0:47
  Speaker 2: of Cushing and Dolan with a master's in taxation. Welcome Todd,
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  Speaker 2: how are you today?
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  Speaker 3: I am never bettering you.
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  Speaker 2: I am great. Thank you. What he have for us
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  Speaker 2: this week a.
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  Speaker 3: Couple of cases. We've got a Texas Appellate Co case. Basically,
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  Speaker 3: it's a statute of limitations case, but it's a situation
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  Speaker 3: where obviously don't sit on your rights. But in this case,
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  Speaker 3: you know, a revocable trust was set up, husband died
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  Speaker 3: and spouse was in charge, and then some kids were
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  Speaker 3: treating her nicely and some weren't, and she ended up
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  Speaker 3: giving a house to three of the kids out of
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  Speaker 3: the trust, and of course the other kids weren't happy
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  Speaker 3: about that and thought that they couldn't she couldn't do it.
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  Speaker 3: And I think you'll be interested to see how this
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  Speaker 3: plays out. So again a plan was in place, worked
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  Speaker 3: works well, you'll see. Then we head over to Tennessee
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  Speaker 3: where we have an appellate court case here where we
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  Speaker 3: actually have a durable power of attorney and in a
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  Speaker 3: combination of how the power of attorney was used with
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  Speaker 3: joint property, how the power of attorney ended up transferring
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  Speaker 3: the joint property to a granddaughter from the grandmother, and
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  Speaker 3: the grandmother was still alive. So you're going to see
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  Speaker 3: how perhaps apps owning property jointly with other people is
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  Speaker 3: not the way to go. Our job is to keep
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  Speaker 3: your client, you, husband, wives, moms and dads of the
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  Speaker 3: world in charge of their estate plan. And we're going
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  Speaker 3: to see how this could have been done better with
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  Speaker 3: a revocable or even an irrevocable trust. So, folks, plenty
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  Speaker 3: of things can go wrong, and I would say the
• 2:20
  Speaker 3: guide this month will help you. It's called Potholes to
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  Speaker 3: avoid when doing your estate planning. And there's many things
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  Speaker 3: to think about, certainly these certainly things like second marriages,
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  Speaker 3: what happens when a spouse dies, So even if you've
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  Speaker 3: done your planning right, you've lost a spouse, or you
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  Speaker 3: guys want to move or relocate, change you know states,
• 2:39
  Speaker 3: how does that affect your situation? Please don't think you
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  Speaker 3: shouldn't plan because you just have a will, or you've
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  Speaker 3: just got a nominee realty trust and that's all you need,
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  Speaker 3: or that you don't even have enough money. You be surprised.
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  Speaker 3: So folks, get this guide. It will really help you
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  Speaker 3: a get started if you've not done your planning, and
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  Speaker 3: b if you've done your planning. It's got all these
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  Speaker 3: little tips to think about as to what you might
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  Speaker 3: need to do to fix or change your plan due
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  Speaker 3: to life events. Planning Potholes to Avoid eight six six
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  Speaker 3: eight four eight five six ninety 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.
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  Speaker 3: You can always go to Cushing Dolan PCR Instagram page
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  Speaker 3: for much more information. Okay, so I think we said
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  Speaker 3: we're going to go to Texas first. So this case
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  Speaker 3: is interesting. So Pearl's husband left real estate in trust
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  Speaker 3: for Pearl, and she was the trustee, and she had
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  Speaker 3: absolute discretion to use principle to support her in the
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  Speaker 3: standard of living that she was used to, so revocable trust,
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  Speaker 3: revocable trust. And then of course he died, so it
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  Speaker 3: was just her right because he had left it, so
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  Speaker 3: she he's already deceased, and it also had her ability
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  Speaker 3: to get income. Oh, come twenty ten, that were no
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  Speaker 3: money in the trust to pay for all the real
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  Speaker 3: estate taxes, maintenance and upkeep. And so three of the
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  Speaker 3: ten kids, holy cow, agreed to pay all the real
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  Speaker 3: estate taxes, all the upkeep, all the maintenance, and let
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  Speaker 3: her live there and all the living expenses. In exchange,
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  Speaker 3: Mom deeded the property to them. I don't think that's
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  Speaker 3: a great idea, but that doesn't change the fact as
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  Speaker 3: to whether or not if it was allowed. But I
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  Speaker 3: don't love the idea but she did.
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  Speaker 2: Well.
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  Speaker 3: Come twenty ten, pearl died and one child who did
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  Speaker 3: not get any real estate, did a little title search
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  Speaker 3: and disclosed to the others that transfers to these kids.
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  Speaker 3: So they did and well, I guess they didn't know,
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  Speaker 3: and that's okay, I don't need to know. And so
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  Speaker 3: three kids that get the real estate sought a judgment
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  Speaker 3: to validate the deeds. Of course, the others object and
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  Speaker 3: said no, they violated their fiduciary duty. And then the
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  Speaker 3: counter argument was, no, well, the statute of limitations has
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  Speaker 3: run anyway, you can't sue us. The kids back and
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  Speaker 3: forth with their arguments. The court said, well, the statute
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  Speaker 3: limitations had run and validated the deeds. They appealed the
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  Speaker 3: ones who didn't get it, and the appellate court agreed
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  Speaker 3: and said the two thousand and three search gave notice
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  Speaker 3: of transfer, and so the statute limitations of four years
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  Speaker 3: began to run then, so they could have looked, I'm sorry,
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  Speaker 3: the twenty ten search when the child did it the
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  Speaker 3: twenty or yeah, the twenty twenty search she died yet
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  Speaker 3: did it? Yeah? And so come twenty twenty four when
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  Speaker 3: they when they sought judgment too late, too late.
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  Speaker 1: You know.
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  Speaker 3: At the end of the day, I think that's the
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  Speaker 3: right answer. And here's why. Let's take a look what
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  Speaker 3: can we learn from this? Right, So, the trust said
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  Speaker 3: that there was that trust. They had a husband and
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  Speaker 3: wife trusts. Nice to see they had it set up.
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  Speaker 3: The surviving spouse can be in control of the trust,
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  Speaker 3: you know, after one spouse dies, and that trust would
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  Speaker 3: would have sheltered assets for state tax purposes, avoided probate
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  Speaker 3: for the family. You know, exactly how trusts are designed
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  Speaker 3: to work. Probably had the marital share and the remainder
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  Speaker 3: share in it, which again gives the surviving spouse the
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  Speaker 3: power to you know, utilize the assets and kids at bay.
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  Speaker 2: And change the mind and.
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  Speaker 3: Change their mind. Well, this is the part where I
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  Speaker 3: got a little lost. But let's see if we could
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  Speaker 3: learn something from it. So Mom then deed it out
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  Speaker 3: the property. Well, our remainder share, we know, allows distributions
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  Speaker 3: of property out to kids in equal or unequal shares.
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  Speaker 3: That's how it's designed in the trustees discretion.
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  Speaker 1: Or you know.
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  Speaker 3: So at the end of the day, she wanted to
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  Speaker 3: reward people for caring for her, helping her live in
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  Speaker 3: the house, pay the.
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  Speaker 2: Bills stay in the house by paying those bills, and.
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  Speaker 3: So she decided to deed the property out to them. Now,
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  Speaker 3: if that had been put into the remainder share upon
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  Speaker 3: dad's death, which or husband's death, that's perfectly okay, because
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  Speaker 3: the remainder share has that spray provision, which is what
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  Speaker 3: causes it to be taxable on the first death and
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  Speaker 3: not taxable on the second death. That's the sheltering. So
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  Speaker 3: I think she legally could have done this, so that's
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  Speaker 3: not an issue. Yep. But again, don't The message here
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  Speaker 3: is get help, folks, don't try to do this on
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  Speaker 3: your own. If she had gone back to her estate
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  Speaker 3: planning attorney, like let's say this was our trust at
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  Speaker 3: Cushing and Dolan, right, it would say that you you
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  Speaker 3: have a limited power of appointment built in to the
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  Speaker 3: remainder share in the marital share, which means the surviving
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  Speaker 3: spouse has the power to change the disposition or who
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  Speaker 3: gets the assets limited to kids of all generations. And
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  Speaker 3: so all she really had to do was simply exercise
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  Speaker 3: her limited power of appointment change the dispositive provisions of
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  Speaker 3: the trust to say, upon my death, the property goes
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  Speaker 3: to these three kids.
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  Speaker 2: So instead of transferring it during her life. Yeah, there
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  Speaker 2: must have been some tax implications to.
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  Speaker 3: This, exactly right. And so this way she could have
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  Speaker 3: kept the house felt in control because it's still her house,
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  Speaker 3: it's in her trust. You give it to the kids,
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  Speaker 3: subject to their creditors. It's out of your control. You
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  Speaker 3: can't live there. Who knows what could go wrong. This
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  Speaker 3: way she could have kept control over it and still
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  Speaker 3: said house to these three kids, everything else equal, if
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  Speaker 3: that's what she wants, perfectly fine. Difference as you said,
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  Speaker 3: Susan step up in basis so now, which is huge.
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  Speaker 3: Those kids would have got the property with the basis
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  Speaker 3: to fair market value on the date of death, eliminating,
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  Speaker 3: not just reducing, but eliminating. They're built in gain yeap.
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  Speaker 3: Who knows they probably sold the property in.
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  Speaker 2: Yeah, so when they went to sell it, no taxes due.
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  Speaker 3: No taxes due, no capital gains taxes. And you know what,
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  Speaker 3: even with a medicaid irrevocable trust in case you're worried
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  Speaker 3: about protecting it for them, that might be the other
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  Speaker 3: reason where you know, you gave it to them, but
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  Speaker 3: it wasn't protected from the nursing home right away. This
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  Speaker 3: way it is because you gave it to them, Well
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  Speaker 3: it would be if it's in this irrevocable trust and
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  Speaker 3: you have the same limited power of appointment to change
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  Speaker 3: the beneficiaries of the irrevocable trust while you're alive, so
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  Speaker 3: that it goes to just that, or those three kids do.
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  Speaker 2: Need to give away your house during life.
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  Speaker 3: Folks still step up in basis with the Medicaid irrevocable trust,
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  Speaker 3: everything would have worked out well. And you know what,
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  Speaker 3: it still worked out okay, But they did planning, and folks,
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  Speaker 3: I think one of the biggest potholes to avoid in
• 9:57
  Speaker 3: planning is not planning of course right. So do your
• 10:00
  Speaker 3: plan and get the guide and learn what's right for
• 10:02
  Speaker 3: you and how to avoid the potholes in doing your
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  Speaker 3: planning eight six six eight four eight five six ninety nine,
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  Speaker 2: You've been listening to Todd Lutski, a partner with the
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  Speaker 2: law firm of Cushing and Dolan. I'm Susan Powers, a
• 10:28
  Speaker 2: financial advisor with the Armstrong Advisory Group. We've got much
• 10:31
  Speaker 2: more to come. When we return to the Legal Exchange
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  Speaker 2: with Todd Lutsky.
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  Speaker 1: Long term care costs can reach thousands of dollars per
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  Speaker 1: You're listening to the Legal Exchange with Todd Lunsky, an
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  Speaker 1: That's eight six six eight four eight five six ninety nine.
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  Speaker 2: Welcome back into the Legal Exchange with Todd Lutsky. I'm
• 13:58
  Speaker 2: susan Powers of financi advisor with the Armstrong Advisory Group,
• 14:02
  Speaker 2: and I'm joined by Todd Lutsky, a partner with the
• 14:05
  Speaker 2: law firm of Cushing and Dolan with a master's in taxation.
• 14:09
  Speaker 2: Where we headed now, Todd.
• 14:11
  Speaker 3: Ah Tennessee. Okay, how's that interesting case durable power of
• 14:16
  Speaker 3: attorney situation? So Lola creates a durable power of attorney
• 14:21
  Speaker 3: naming her son Terry as attorney in fact. Okay, so
• 14:26
  Speaker 3: it turns out that Lola and son Terry own joint
• 14:30
  Speaker 3: owners on a piece of property.
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  Speaker 2: Okay.
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  Speaker 3: Twenty twenty Terry, the daughter Tom Sorry, Terry's daughter Leah
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  Speaker 3: i e. The granddaughter to Lola, drafts a deed transferring
• 14:46
  Speaker 3: the property to herself. And guess what Terry signs both
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  Speaker 3: personally and as power of attorney for Lola. Okay, so
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  Speaker 3: this makes it sound like Terry as POA transfers Lola's
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  Speaker 3: half and I'm guessing Terry gave away his half yep,
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  Speaker 3: because he signed personally. So now the granddaughter owns property
• 15:10
  Speaker 3: hundred percent. This can't be good. This is Terry's daughter, Yes,
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  Speaker 3: Terry's daughter, so granddaughter to Lola. Lola then is still alive.
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  Speaker 3: This is really bad. So Lola sues, says the deed
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  Speaker 3: was a forgery because the power of attorney document was
• 15:29
  Speaker 3: never recorded and she did not sign the deed. Lola
• 15:32
  Speaker 3: says this, the court said, well, there was no forgery
• 15:38
  Speaker 3: proven in any way. Did that even become an issue?
• 15:42
  Speaker 3: And plus, the power of attorney doesn't need to be
• 15:45
  Speaker 3: recorded anyway to be effective. In fact, it's effective the
• 15:50
  Speaker 3: moment you sign it. And you don't even have to
• 15:53
  Speaker 3: be sick for.
• 15:54
  Speaker 2: The power of attorney.
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  Speaker 3: Yeah, you gotta be careful who you sign, who you
• 15:59
  Speaker 3: put on there. So the court said, sorry, we're going
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  Speaker 3: to find in favor of Leah and she gets the property.
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  Speaker 1: Wow.
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  Speaker 3: Which again, legally I think they've got it right.
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  Speaker 2: Ethically maybe not, but legally yes, I think I agree
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  Speaker 2: with you, Todd.
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  Speaker 3: I mean that's an issue. And so then Lowlo, of
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  Speaker 3: course very unhappy, appeals and said that you know, there
• 16:26
  Speaker 3: were certain witnesses that were not allowed. I guess this
• 16:29
  Speaker 3: is twenty twenty, nineteen, twenty twenty COVID was on. So
• 16:32
  Speaker 3: they said certain witnesses were not allowed because of COVID,
• 16:35
  Speaker 3: and that she made certain arguments that were not allowed
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  Speaker 3: that were not made during the trial court. In the words,
• 16:42
  Speaker 3: she's trying to create right arguments that she didn't make
• 16:46
  Speaker 3: during the trial court. And so the appellate court said, no,
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  Speaker 3: we're going to affirm the trial court because you can't
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  Speaker 3: make up arguments that didn't you didn't create before, and
• 16:58
  Speaker 3: you know the witnesses, that issue is not an issue.
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  Speaker 3: So late Leah gets to keep the property.
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  Speaker 2: Those POAs are very powerful documents.
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  Speaker 3: Wow. Right. So at this point, Lola, who's still alive, Grandma,
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  Speaker 3: I hope that wasn't her home. Hopefully it was just
• 17:17
  Speaker 3: some second property or something I don't have the facts
• 17:21
  Speaker 3: on the stuff, but you know, folks, that's exactly why
• 17:24
  Speaker 3: you need to do planning. I don't know if that's
• 17:26
  Speaker 3: a pothole, but it's certainly something to avoid. So I
• 17:30
  Speaker 3: think you should put your plan together again. If the
• 17:33
  Speaker 3: properties were in trust, I think you're going to find
• 17:35
  Speaker 3: that you have a completely different result here, as we'll learn,
• 17:39
  Speaker 3: the power of attorney doesn't have power over a trust.
• 17:41
  Speaker 3: So stay tuned. But folks, for you getting your estate
• 17:45
  Speaker 3: plan in order. Potholes to avoid. You know, if you've
• 17:49
  Speaker 3: not done your planning, this is going to help you
• 17:51
  Speaker 3: avoid them. If you've done your planning, it'll tell you
• 17:54
  Speaker 3: what you might need to do to fix what you've done.
• 17:56
  Speaker 3: And again, especially if you've done your planning, you know
• 18:00
  Speaker 3: what about you know you're now getting divorced, or you're
• 18:03
  Speaker 3: changing states, or you know you have some other life
• 18:06
  Speaker 3: event that might affect your plan. Think about it. If
• 18:09
  Speaker 3: you haven't done your planning, you know, don't rely on
• 18:12
  Speaker 3: jointly owned assets. And think about all I got is
• 18:14
  Speaker 3: a nominee realty trust. I don't need to do anything else.
• 18:17
  Speaker 3: You know, don't don't rely on those things. And if
• 18:19
  Speaker 3: you lose a spouse, What are the tax problems? Don't
• 18:22
  Speaker 3: empty one trust into another? So many things to think about.
• 18:25
  Speaker 3: Get this guide. It'll really help put you on the
• 18:29
  Speaker 3: right path and make you feel good about your plan
• 18:31
  Speaker 3: eight six six eight four eight five six nine nine
• 18:35
  Speaker 3: or Legal Exchange Show dot com again eight six six
• 18:39
  Speaker 3: eight four eight five six nine to nine or Legal
• 18:43
  Speaker 3: Exchange Show dot com. And you can always go to
• 18:46
  Speaker 3: Cushing Goal and PC our Instagram page for more information.
• 18:49
  Speaker 2: How do you know who to pick todd as you're
• 18:52
  Speaker 2: produce sharing, free power of attorney and so forth.
• 18:55
  Speaker 3: Yeah, it's it's really just kind of have to get
• 18:57
  Speaker 3: to know your children, and you know, say, which child
• 19:01
  Speaker 3: do you think you know emulate the values that you have.
• 19:05
  Speaker 3: That's really what it comes down to. You hate to
• 19:07
  Speaker 3: have to think you're going to favor one over another,
• 19:09
  Speaker 3: but let's face it, it doesn't mean you love one
• 19:11
  Speaker 3: more than another, but it just means that you know,
• 19:14
  Speaker 3: they all have different personalities and.
• 19:16
  Speaker 2: Better at different things. So it might be financially inclined
• 19:19
  Speaker 2: or healthcare inclined.
• 19:21
  Speaker 3: And right, and just their overall demeanor and actions might
• 19:26
  Speaker 3: help you. That's the only thing you can look to.
• 19:28
  Speaker 3: You can never be completely comfortable. You just have to
• 19:32
  Speaker 3: use your judgment and pick the best person. But I
• 19:37
  Speaker 3: think some of the lessons we can learn from this
• 19:39
  Speaker 3: would be, you know, like joint ownership was a problem
• 19:43
  Speaker 3: number one here, right, This was a completed gift of
• 19:46
  Speaker 3: one half the property on the day it was set
• 19:49
  Speaker 3: up with Terry. He got a half carryover basis, which
• 19:53
  Speaker 3: creates capital gains tax problems for Terry. So it's already
• 19:57
  Speaker 3: not a good idea for Terry. So if you're mom,
• 20:01
  Speaker 3: why are you giving a tax bill to your child?
• 20:05
  Speaker 3: Not helpful? Creditors, you know, Terry gets divorced, it's at
• 20:10
  Speaker 3: risk you lose half the property. If Terry gets divorced,
• 20:13
  Speaker 3: Lola's going to have to step up. Not helpful. What
• 20:17
  Speaker 3: about from a nursing home perspective, Well, yeah, there's a
• 20:19
  Speaker 3: five year waiting period and one half the property would
• 20:22
  Speaker 3: be protected from the nursing home that you actually gave
• 20:24
  Speaker 3: to Terry, but the other half's not protected at all.
• 20:29
  Speaker 3: So you know, that doesn't really help Terry if the
• 20:32
  Speaker 3: goal is to help Terry. So again, I'm trying to
• 20:36
  Speaker 3: think about this from the mother, you know, Lola's point
• 20:38
  Speaker 3: of view. What if you wanted to sell the property. Well,
• 20:42
  Speaker 3: Lola now has given up a lot of control. She
• 20:44
  Speaker 3: can't sell it, she can't move it if she wants to.
• 20:47
  Speaker 3: She would need Terry's permission to sell the property. Even
• 20:51
  Speaker 3: if she got Terry's permission, she'd only have half get
• 20:54
  Speaker 3: half the money back from from the sale, and she
• 20:57
  Speaker 3: might need more of that money to to buy her
• 21:01
  Speaker 3: next house. And then there'd be a gift tax problem
• 21:04
  Speaker 3: from Terry to give the money back. There'd be a
• 21:07
  Speaker 3: capital gains tax problem for Terry. If he doesn't live there,
• 21:09
  Speaker 3: he won't get a capital gains exclusion on selling the property.
• 21:13
  Speaker 3: So I mean, there's one problem after another.
• 21:16
  Speaker 2: And she experienced the worst case scenario. He got rid
• 21:20
  Speaker 2: of it right out from under.
• 21:21
  Speaker 3: Her exactly, and now at that point he can actually
• 21:24
  Speaker 3: transfer her property, which leads.
• 21:26
  Speaker 2: He did.
• 21:28
  Speaker 3: Exactly leads me down the path of what if they
• 21:31
  Speaker 3: even just put it in a revocable trust, just revocable right,
• 21:35
  Speaker 3: Lola would be the trustee. Guess what. Power of attorney
• 21:39
  Speaker 3: has no power over trust assets, only over assets in
• 21:43
  Speaker 3: your own name. So even though Terry was the power
• 21:47
  Speaker 3: of attorney, he could not have transferred the property out
• 21:51
  Speaker 3: of the revocable trust. Only the trustee could do that.
• 21:55
  Speaker 3: So it seems like, you know, Lola was competent all
• 21:59
  Speaker 3: the while, So that would have provided protection from a
• 22:02
  Speaker 3: durable power of attorney. And remember, as we said earlier,
• 22:06
  Speaker 3: the power of attorney becomes effective the moment it's signed,
• 22:08
  Speaker 3: so there's no recording, there's no needing someone to be incapacitated,
• 22:12
  Speaker 3: there's none of that, which is why Lola lost the case. Yep,
• 22:17
  Speaker 3: I feel bad for her, but that's the situation. And folks,
• 22:21
  Speaker 3: even if it was an irrevocable trust, and even if
• 22:23
  Speaker 3: Terry was the trustee the language and our irrevocable Medicaid trust,
• 22:26
  Speaker 3: if she wanted to protect this for her children, says
• 22:29
  Speaker 3: that distributions can come out to kids or grandkids, but
• 22:34
  Speaker 3: the trustee cannot give to the trustee or the trustees kids.
• 22:37
  Speaker 3: You need a separate trustee to make that distribution. So
• 22:41
  Speaker 3: even if it was in the irrevocable trust and Terry
• 22:44
  Speaker 3: was the trustee, he could not have transferred the property.
• 22:48
  Speaker 3: He would have needed to appoint someone else as an
• 22:52
  Speaker 3: independent trustee, and then that independent trustee would have had
• 22:55
  Speaker 3: to make the distribution. In other words, you needed a
• 22:58
  Speaker 3: lot of collusion here to get this done. All the while,
• 23:02
  Speaker 3: Lola and our irrevocable trust would have retained the power
• 23:05
  Speaker 3: to remove the trustee anytime, right, So she's still in
• 23:09
  Speaker 3: charge even with the new irrevocable trust. Folks, this is
• 23:13
  Speaker 3: a great case that explains how powerful and wonderful really
• 23:16
  Speaker 3: revocable or irrevocable trust can be as part of your
• 23:20
  Speaker 3: estate plan. So again potholes. To avoid one big pothole
• 23:24
  Speaker 3: not planning, call and get the guide, folks eight sixty
• 23:27
  Speaker 3: six eight four eight five six ninety nine or Legal
• 23:31
  Speaker 3: Exchange show dot com again eight six six eight four
• 23:35
  Speaker 3: eight five six nine to nine.
• 23:37
  Speaker 2: You've been listening to Todd Lutsky, a partner with the
• 23:40
  Speaker 2: law firm of Cushing and Dolan. I'm Susan Powers, a
• 23:43
  Speaker 2: financial advisor with the Armstrong Advisory Group, and Todd will
• 23:47
  Speaker 2: be answering your listener questions when we return to the
• 23:50
  Speaker 2: Legal Exchange with Todd Lutsky.
• 23:53
  Speaker 1: Long term care costs can reach thousands of dollars per
• 23:56
  Speaker 1: month and can put a serious strain on your savings.
• 23:58
  Speaker 1: The experts at Cushing and Dolan often see families caught
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  Speaker 1: Those costs can quickly eat through a lifetime of your
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  Speaker 1: at Legal exchange show dot com. The proceeding with paid
• 24:43
  Speaker 1: for in the views expressed are solely those of Cushing
• 24:45
  Speaker 1: and Dolan. Cushing and Dolan Intoor Armstrong Advisory may contact
• 24:48
  Speaker 1: you offering legal or investment services. Cushing and Dolan and
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  Speaker 1: Armstrong Advisory do not endorse each other and are not
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  Speaker 1: affiliated HI.
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  Speaker 6: This is Mike Armstrong from the Armstrong Advisory Group. One
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  Speaker 6: of the biggest challenges in financial planning is seeing the
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• 25:38
  Speaker 1: The proceeding was paid for by Armstrong Advisory Group, a
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  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
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  Speaker 1: any investment decisions. Armstrong may contact you to offer investment
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  Speaker 1: advisory services. It's important to update your estate plan as
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  Speaker 1: Potholes to avoid Call eight six six eight four eight
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  Speaker 1: five six nine nine and get your copy today or
• 26:09
  Speaker 1: request it online at Legal exchange show dot com. The
• 26:12
  Speaker 1: proceeding was paid for in The views expressed are solely
• 26:14
  Speaker 1: those of Kushian, Dolan, Cushing and Dolan Intoor. Armstrong Advisory
• 26:17
  Speaker 1: may contact you offering legal or investment services. Cushion, Dolan
• 26:20
  Speaker 1: and Armstrong Advisory do not endorse each other and are
• 26:23
  Speaker 1: not affiliated. Hi.
• 26:23
  Speaker 5: I'm Michael Valila, adjuedent of the Disabled American Veterans Department
• 26:27
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• 26:54
  Speaker 1: You're listening to the Legal exchange, and it's time for
• 26:58
  Speaker 1: Ask Todd, the segment where God will answer your questions
• 27:01
  Speaker 1: about anything and everything that's included in the estate planning process.
• 27:05
  Speaker 1: Once again, here's Todd Lutsky and Susan Powers.
• 27:09
  Speaker 2: Welcome back talk. We have a few questions from listeners
• 27:12
  Speaker 2: for you. First question comes from Edding Cranston, Rhode Island,
• 27:16
  Speaker 2: and Ed writes, my daughter predeceased me, leaving behind two children.
• 27:20
  Speaker 2: I have one living son. Now, I'd like to make
• 27:23
  Speaker 2: sure my daughter's children are taken care of after I
• 27:26
  Speaker 2: pass Would it be best if I leave my assets
• 27:29
  Speaker 2: all to my son with the understanding that he is
• 27:31
  Speaker 2: to take care of his niece and nephew. Or should
• 27:34
  Speaker 2: I leave it for my son in law for them instead?
• 27:38
  Speaker 3: All right, there's a lot of players going on here.
• 27:40
  Speaker 3: I got to get the names right.
• 27:41
  Speaker 2: Daughter passed away, he had two kids.
• 27:44
  Speaker 3: He had two kids.
• 27:45
  Speaker 2: Daughter passed away, She has children.
• 27:48
  Speaker 3: She has the daughter who died, had daughter.
• 27:52
  Speaker 2: The grandkids. He wants to know should I leave it
• 27:54
  Speaker 2: to my son their uncle or to their dad my
• 27:57
  Speaker 2: son in law.
• 28:00
  Speaker 3: To the son in law. I don't think that's a
• 28:01
  Speaker 3: good idea. Again, the whole point of well, I think
• 28:05
  Speaker 3: in general, the goal is to take things and make
• 28:08
  Speaker 3: sure they stay in the family.
• 28:10
  Speaker 2: So he doesn't go spend it on his own family.
• 28:12
  Speaker 3: There could be a new marriage, there could be you know,
• 28:14
  Speaker 3: a need where it goes that next thing, you know
• 28:16
  Speaker 3: it's going to someone else's kids. And it's just not
• 28:20
  Speaker 3: And again it's not being mean to the to the
• 28:23
  Speaker 3: spouse because if the spouse's kids, I'm sorry, if the
• 28:27
  Speaker 3: to the child, because if the if or the son
• 28:29
  Speaker 3: in law, if the son in law's children are taken
• 28:33
  Speaker 3: care of, that should make them happy. So and it's
• 28:36
  Speaker 3: also like putting money in his pocket because he didn't have.
• 28:39
  Speaker 2: To resources available for his kids.
• 28:43
  Speaker 3: Or whatever they might need. So and so he's got
• 28:48
  Speaker 3: two kids and now really one kid and two grandchildren left.
• 28:54
  Speaker 3: See his trust if he hasn't done one yet, should
• 28:58
  Speaker 3: And let's say it was drafted when they were all alive.
• 29:01
  Speaker 2: It doesn't look like he's done one because he's asking
• 29:04
  Speaker 2: should I leave it to my son or their dad?
• 29:07
  Speaker 3: So I think they need a trust here at a
• 29:09
  Speaker 3: bare minimum. And if the trust was prepared before he died,
• 29:12
  Speaker 3: it would have said equally to my kids if living
• 29:14
  Speaker 3: otherwise to my grandchildren Okay, so that would have been
• 29:17
  Speaker 3: already taken care of. I just wanted to sort of
• 29:18
  Speaker 3: make the point where how easy it is to draft
• 29:21
  Speaker 3: your document, because now, yeah, there would have been no
• 29:25
  Speaker 3: need to change it. It would have been okay, daughter
• 29:27
  Speaker 3: died but left two kids, so daughter's half would now
• 29:30
  Speaker 3: go in trust for the grandchildren and not the spouse,
• 29:35
  Speaker 3: which is exactly the way we said it should go.
• 29:37
  Speaker 1: Yep.
• 29:39
  Speaker 3: In addition saying, well, am I leaving it to the uncle? No,
• 29:41
  Speaker 3: but the uncle might be trustee, right see, so the
• 29:45
  Speaker 3: uncle could be trustee over the money sitting in the
• 29:48
  Speaker 3: grandchildren's bucket, and therefore the uncle can dole it out
• 29:52
  Speaker 3: to them as needed for their health, education, or whatever
• 29:56
  Speaker 3: the trust says, until they reach a certain age.
• 29:58
  Speaker 2: So even though his daughters already passed, if he's doing
• 30:01
  Speaker 2: his trust planning now, he doesn't need to leave it
• 30:03
  Speaker 2: to the son or the son in law. That doesn't
• 30:06
  Speaker 2: even have to be an option.
• 30:07
  Speaker 3: No, he can just say, now, I want to leave
• 30:09
  Speaker 3: it fifty to fifty, you know, fifty percent allocated to
• 30:11
  Speaker 3: a share for my child, my son, and fifty percent
• 30:16
  Speaker 3: equally to my grandchildren from it might have to be
• 30:21
  Speaker 3: clear here because the son could have kids, right, and
• 30:23
  Speaker 3: so you don't want to just say equally to my grandchildren,
• 30:25
  Speaker 3: because then that could include the son's children. So you
• 30:29
  Speaker 3: would probably want to be very clear that it would
• 30:31
  Speaker 3: go equally, you know, fifty percent allocated to these two
• 30:34
  Speaker 3: grandchildren who are the children of my deceased daughter, and
• 30:38
  Speaker 3: then same you still get to the same result. So yeah,
• 30:42
  Speaker 3: I don't you know. Ed at this point, I'm saying,
• 30:44
  Speaker 3: there's really no reason to leave it out right. Leave
• 30:47
  Speaker 3: it out right to anybody, and just when you pass,
• 30:50
  Speaker 3: it'll get to where they need to go in the
• 30:52
  Speaker 3: manner that you wanted to get there. But again, folks,
• 30:56
  Speaker 3: this is a really good article or a really good
• 30:59
  Speaker 3: exact ample in terms of this article of avoiding you know,
• 31:02
  Speaker 3: potholes to avoid in your estate planning. You know here
• 31:05
  Speaker 3: he didn't even have any planning, and it could create problems.
• 31:09
  Speaker 3: I mean, if you die and you just had one
• 31:11
  Speaker 3: daughter or one child left, it might end up going
• 31:13
  Speaker 3: all to that child, and you didn't really want to
• 31:15
  Speaker 3: disinherit your grandchildren, so you need to be careful about that.
• 31:19
  Speaker 3: But you know what folks think about these things, because
• 31:23
  Speaker 3: there's always something to do, Like if you've got your
• 31:25
  Speaker 3: estate plan in order, you've got tax returns that need
• 31:28
  Speaker 3: to be filed. If one spouse dies, how does that
• 31:31
  Speaker 3: change the tax returns and what do you do with
• 31:33
  Speaker 3: the surviving spouse's trust? A good idea to look into
• 31:37
  Speaker 3: this right if you haven't done your planning and you
• 31:39
  Speaker 3: think you only need a will, bad idea. Don't rely
• 31:42
  Speaker 3: on like life estates or jointly held property or you know,
• 31:48
  Speaker 3: think about not if you've got your plan done and
• 31:50
  Speaker 3: you've not funded your trust, huge pothole. Now it's just
• 31:53
  Speaker 3: completely empty and wasted, folks. This guide is for both
• 31:57
  Speaker 3: the people who have planned and the people who have
• 32:00
  Speaker 3: not done their planning. Call and get it State planning
• 32:03
  Speaker 3: potholes to avoid eight six six eight four eight five
• 32:07
  Speaker 3: six nine nine or Legal exchange show dot com again
• 32:11
  Speaker 3: eight six six eight four eight five six nine nine
• 32:16
  Speaker 3: or Legal Exchange Show dot com. Can always go to
• 32:19
  Speaker 3: our Instagram page Cushing dolein PC for even more information.
• 32:23
  Speaker 2: Our last question comes from down in Harwich, mass and
• 32:26
  Speaker 2: Don writes, my wife and I will soon be meeting
• 32:29
  Speaker 2: with an attorney to create an estate plan, likely revocable trust,
• 32:33
  Speaker 2: as we have plenty of assets as well as long
• 32:35
  Speaker 2: term care insurance, and we are not concerned about nursing
• 32:38
  Speaker 2: home costs. My question is this, what is the best
• 32:42
  Speaker 2: way to ensure our two children keep our family beach
• 32:45
  Speaker 2: house in the family without ending up enemies. Is there
• 32:49
  Speaker 2: any way to protect the property from their creditors.
• 32:52
  Speaker 3: Well, there's two questions there. The creditor part's actually pretty easy.
• 32:57
  Speaker 3: The preventing people from becoming enemies is a.
• 32:59
  Speaker 2: Little it's a little more nuanced.
• 33:02
  Speaker 3: Can always can't always guarantee that, but but we can
• 33:06
  Speaker 3: at least to a degree eliminate some of the problems
• 33:10
  Speaker 3: that they might encounter that would create them, that would
• 33:14
  Speaker 3: create that enemy situation. Right, So you're going to say,
• 33:18
  Speaker 3: look equally to the kids, that's what we want. But
• 33:22
  Speaker 3: notwithstanding that, if it's real estate, and specifically this one,
• 33:27
  Speaker 3: but we would say for all real estate, it's going
• 33:30
  Speaker 3: to be sold. Now, Todd, why are you saying that?
• 33:32
  Speaker 3: They said they want to keep it in the they
• 33:34
  Speaker 3: want to keep it, totally get it. So I'm like,
• 33:37
  Speaker 3: it's got to be sold unless they all want it.
• 33:41
  Speaker 3: So you ask them, say, you've got three kids, you know,
• 33:45
  Speaker 3: and do you all want it? You can easily save it,
• 33:48
  Speaker 3: just set just tell us you want it.
• 33:50
  Speaker 2: So if one says no, I don't want anything to
• 33:52
  Speaker 2: do with it, I live far away, and the other
• 33:53
  Speaker 2: two say, yeah, we want it, how is that handled right?
• 33:56
  Speaker 3: So that's why we say start off with the idea
• 33:59
  Speaker 3: of selling it, and why because you can't force people
• 34:02
  Speaker 3: to like something as much as you like it. I
• 34:05
  Speaker 3: know you want that for them, but they might not
• 34:08
  Speaker 3: want it for them, and then they would just run
• 34:11
  Speaker 3: it down if you don't if you force it on them.
• 34:14
  Speaker 3: So you offer it like this. So if they all
• 34:16
  Speaker 3: want it, great, we sprinkle it to your point. One
• 34:18
  Speaker 3: wants it too, don't Maybe one when you died, is
• 34:21
  Speaker 3: living out in California and they want nothing to do
• 34:23
  Speaker 3: with the Cape house.
• 34:23
  Speaker 1: Yep.
• 34:26
  Speaker 3: Then the two that want it get to buy out
• 34:29
  Speaker 3: the interest of the one that doesn't at fair market value.
• 34:34
  Speaker 3: So you put language in there that says, hey, you
• 34:36
  Speaker 3: got to buy one third of the property. Great, So
• 34:42
  Speaker 3: what do it Now? All kids are still treated equally,
• 34:47
  Speaker 3: and so the enemy issue has kind of been resolved.
• 34:51
  Speaker 3: We're not going to be enemies because our buckets are
• 34:53
  Speaker 3: filled with the same value, just different.
• 34:57
  Speaker 2: Assets, different stuff. So they could use the other inherited
• 35:01
  Speaker 2: assets to buy out that one third. They just getting
• 35:05
  Speaker 2: cash versus real estate in their bucket.
• 35:07
  Speaker 3: Yeah right, yeah exactly. So okay, I think we've eliminated
• 35:11
  Speaker 3: the enemy as much as we can, and then protecting
• 35:15
  Speaker 3: it from creditors are Yeah, I said it didn't go
• 35:17
  Speaker 3: to them, It went into their buckets. Their buckets are
• 35:22
  Speaker 3: still very much owned by the trust.
• 35:24
  Speaker 2: Got it.
• 35:25
  Speaker 3: So now you have trust language that says, you know,
• 35:30
  Speaker 3: sold discretionary distribution, so they can manage and invest the
• 35:33
  Speaker 3: money as trustees, but they can't reach in and just
• 35:37
  Speaker 3: take it. In order to take it, they need to
• 35:40
  Speaker 3: pick an independent trustee who, in the independent trustees discretion
• 35:45
  Speaker 3: can make a distribution to them or not, or to
• 35:49
  Speaker 3: their kids or not. So grandkids are actually included, okay.
• 35:55
  Speaker 3: And it's that discretionary distribution that prevents them from being
• 35:59
  Speaker 3: the owner. And so if they're not the owner, it's
• 36:03
  Speaker 3: not a mayre to ask that if they get divorced anyway. Yeah,
• 36:06
  Speaker 3: it's just it's just protected. So folks, that's how you
• 36:10
  Speaker 3: do it. Again. Planning prevents the potholes, right, Planning prevents
• 36:15
  Speaker 3: you from running into these potholes that you're bringing up here.
• 36:18
  Speaker 3: Call and get this guide estate planning potholes to avoid
• 36:22
  Speaker 3: both for the planner and the person who has not
• 36:26
  Speaker 3: done planning eight six six eight four eight, five six
• 36:30
  Speaker 3: nine nine, or Legal Exchange Show dot Com again eight
• 36:34
  Speaker 3: six six eight four eight five six nine to nine.
• 36:39
  Speaker 2: If you have a question you would like to ask Todd,
• 36:41
  Speaker 2: visit his website Legal Exchange Show dot com and click
• 36:45
  Speaker 2: on the ask Tod tab. Maybe I'll be able to
• 36:47
  Speaker 2: read your question on the air, and hopefully his answer
• 36:50
  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
• 36:56
  Speaker 2: with a law firm of Cushing and Dolan. I'm Susans,
• 37:00
  Speaker 2: a financial advisor with the Armstrong Advisory Group, and we'll
• 37:03
  Speaker 2: be back with more after this quick break on the
• 37:06
  Speaker 2: Legal Exchange with Todd Lutsky.
• 37:09
  Speaker 1: Long term care costs can reach thousands of dollars per
• 37:12
  Speaker 1: month and can put a serious strain on your savings.
• 37:14
  Speaker 1: The experts at Cushing and Dolan often see families caught
• 37:17
  Speaker 1: off guard by that reality. Without the right plan in place,
• 37:20
  Speaker 1: those costs can quickly eat through a lifetime of your
• 37:23
  Speaker 1: hard work. But here's the shocker. Many estate plans don't
• 37:26
  Speaker 1: protect your assets from those expenses. The right strategy may
• 37:29
  Speaker 1: involve specific types of trusts designed to help protect your assets,
• 37:32
  Speaker 1: but timing matters. Cushing and Dolan has a brand new
• 37:35
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• 37:56
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• 37:59
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• 38:01
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• 38:04
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• 38:06
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  Speaker 4: This is Chuck from the Armstrong Advisory Group. If your
• 38:12
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• 38:45
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• 38:49
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• 38:51
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• 38:55
  Speaker 1: The proceeding was paid for by Armstrong Advisory Group, a
• 38:57
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• 39:00
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• 39:03
  Speaker 1: your own financial tax into state planning advisors before making
• 39:06
  Speaker 1: any investment decisions. Armstrong may contact you to offer investment
• 39:08
  Speaker 1: advisory services. Long term care costs can reach thousands of
• 39:12
  Speaker 1: dollars per month and can put a serious train on
• 39:15
  Speaker 1: your savings. The experts at Cushing and Dolan often see
• 39:18
  Speaker 1: families caught off guard by that reality. Without the right
• 39:21
  Speaker 1: plan in place, those costs can quickly eat through a
• 39:23
  Speaker 1: lifetime of your hard work. But here's the shocker. Many
• 39:26
  Speaker 1: estate plans don't protect your assets from those expenses. The
• 39:29
  Speaker 1: right strategy may involve specific types of trusts designed to
• 39:32
  Speaker 1: help protect your assets, but timing matters. Cushing and Dolan
• 39:36
  Speaker 1: has a brand new guide called Detour a Head estate
• 39:39
  Speaker 1: planning Potholes to avoid. It breaks down some of the
• 39:41
  Speaker 1: most common and costly mistakes people make and explains how
• 39:45
  Speaker 1: to help protect your assets, your family, and your future.
• 39:48
  Speaker 1: Call eight sixty six eight four eight five six ninet
• 39:51
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• 39:54
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• 39:56
  Speaker 1: can request the guide online at Legal exchange show dot com.
• 40:00
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• 40:01
  Speaker 1: solely those of Cushing and Dolan. Cushing and Dolan Intoor
• 40:03
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• 40:06
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• 40:09
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• 40:10
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• 40:14
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• 40:41
  Speaker 1: Your tune to the Legal Exchange with Todd Lutsky. If
• 40:44
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• 40:46
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• 40:49
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• 40:51
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• 40:54
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• 40:57
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• 41:00
  Speaker 2: Welcome back to the Legal Exchange with Todd Lutsky. I'm
• 41:03
  Speaker 2: Susan Powers, 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
• 41:13
  Speaker 2: master's in taxation. So, Todd, the first thing, the first
• 41:18
  Speaker 2: item that you have in your guide for estate planning
• 41:21
  Speaker 2: potholes to avoid is relying on your will, as you're
• 41:25
  Speaker 2: only a state plan. So I want to actually walk
• 41:28
  Speaker 2: through this and what's the pitfall with that?
• 41:31
  Speaker 3: So I, you know, I'll let you tick these off
• 41:33
  Speaker 3: because you know, the first one is is you know,
• 41:37
  Speaker 3: I ask clients when they want to do an estate
• 41:39
  Speaker 3: plan that they want to avoid probate, and all of
• 41:41
  Speaker 3: them want to do that, that's just a given.
• 41:43
  Speaker 2: But a lot of them say, ah, I'm all set
• 41:45
  Speaker 2: with that, I have a will exactly.
• 41:46
  Speaker 3: And that's a mistake. That's a pothole to avoid, right,
• 41:49
  Speaker 3: It's like, right off the bat, remember that your your
• 41:53
  Speaker 3: estate planning dot, your assets and your estate plan if
• 41:57
  Speaker 3: they're in your own name, will be addressed by the will.
• 42:00
  Speaker 3: But if they're addressed by the will, that means they're going.
• 42:03
  Speaker 2: To probate, because that's the only thing that goes to probate, right.
• 42:07
  Speaker 3: You file that will, So not even avoiding probate, that's
• 42:12
  Speaker 3: one problem.
• 42:13
  Speaker 2: And what in terms of expense in time little snippet
• 42:18
  Speaker 2: of what probate entails.
• 42:20
  Speaker 3: I mean it's a nine month to a year. Well,
• 42:24
  Speaker 3: it's probably a year at a minimum, because the statue
• 42:27
  Speaker 3: of limitations for the creditors who you've got to put
• 42:29
  Speaker 3: on notice, who can then file a claim against your estate. Yeah,
• 42:33
  Speaker 3: only your probate estate not your non probate estate, which
• 42:38
  Speaker 3: is why we want to avoid probate. For any creditors
• 42:42
  Speaker 3: that might be they have one year to file a claim,
• 42:44
  Speaker 3: so it's one year to bare minimum. And then you
• 42:46
  Speaker 3: got to you gotta file the will. You got to
• 42:48
  Speaker 3: notify the errors at law that you're going to be
• 42:49
  Speaker 3: appointing somebody executor, and then you got to wait thirty
• 42:53
  Speaker 3: days for them to object, and if they don't object,
• 42:55
  Speaker 3: then you got to wait for the court to say
• 42:57
  Speaker 3: I'm going to come back and appoint you as executor.
• 42:59
  Speaker 3: And finally sixty to ninety days later, you're finally appointed executor.
• 43:03
  Speaker 2: In all these tasks that you just mentioned, those are
• 43:06
  Speaker 2: done by attorneys that charge it not only basis right,
• 43:08
  Speaker 2: that's right.
• 43:09
  Speaker 3: And you got to put together an inventory with all
• 43:10
  Speaker 3: the assets that you've got in your own name that
• 43:13
  Speaker 3: are a subject to probate, put values on them, and
• 43:15
  Speaker 3: you have to do an accounting. You have to get
• 43:17
  Speaker 3: an ID number for the for the estate to open
• 43:19
  Speaker 3: up the bank accounts to receive all the money accounts
• 43:24
  Speaker 3: under a new ID number. You got to file income
• 43:26
  Speaker 3: tax returns for the estate because it's holding money that's
• 43:29
  Speaker 3: generating the income during the year. You don't get to
• 43:32
  Speaker 3: not pay tax on that. I mean, then you've got
• 43:34
  Speaker 3: to do a final accounting, close out the estate. I mean,
• 43:37
  Speaker 3: have I said enough?
• 43:38
  Speaker 2: That's like a wait, there's more. That's way too much.
• 43:42
  Speaker 3: So is this just a lot that needs to be done?
• 43:46
  Speaker 3: That can completely be avoided with do to trust revocable
• 43:49
  Speaker 3: or irrevocable? So please a will is not your estate plan, folks.
• 43:54
  Speaker 2: So we can avoid probate, which is like saying, okay,
• 43:57
  Speaker 2: would you like to avoid this root canal? This very
• 44:00
  Speaker 2: expensive one year root can out?
• 44:01
  Speaker 3: What about a state taxes? You're saving nothing?
• 44:05
  Speaker 2: And how would that work differently if you had a
• 44:06
  Speaker 2: trust versus just the will.
• 44:08
  Speaker 3: So with the will, it's probably just saying I leave
• 44:10
  Speaker 3: everything to my spouse.
• 44:12
  Speaker 2: I love you, honey, here's the money.
• 44:14
  Speaker 3: And then therefore it's you know, includable. It's going to
• 44:17
  Speaker 3: be taxed on the second death and likely at a
• 44:20
  Speaker 3: much higher rate because you filled up that estate.
• 44:22
  Speaker 2: Well, the government loves when you don't have to.
• 44:25
  Speaker 3: Have a plan. So with a trust, at least you
• 44:27
  Speaker 3: can shelter assets on the first death. Trying to utilize
• 44:31
  Speaker 3: that here in Massachusetts anyway, that two million dollar exemption
• 44:36
  Speaker 3: which we each have. And so as being married and
• 44:39
  Speaker 3: doing a trust, you are going to double the exemption
• 44:41
  Speaker 3: to four million. And so now, because the exemption is
• 44:45
  Speaker 3: two million each, not planning just cost you twice as
• 44:48
  Speaker 3: much by not planning. So do your planning and don't
• 44:53
  Speaker 3: rely on a will.
• 44:53
  Speaker 2: So if you have a married couple with four million
• 44:56
  Speaker 2: or lesson in assets, you could eliminate eight mass Chusetts
• 45:01
  Speaker 2: the state taxes. That's huge stage by doing just a
• 45:04
  Speaker 2: little bit of planning.
• 45:06
  Speaker 3: And folks, that's exactly right. And that brings me to
• 45:09
  Speaker 3: the guide that says what we were just talking about,
• 45:11
  Speaker 3: a will is a pothole to avoid. What about you know,
• 45:14
  Speaker 3: if you have all your assets in a nominee realty trust,
• 45:16
  Speaker 3: that's not a great idea. What if you've got you know,
• 45:19
  Speaker 3: if you haven't, if you've done your planning ten years ago,
• 45:22
  Speaker 3: look it over. That's a pothole. Right. What if you've
• 45:24
  Speaker 3: got you want to change residency, you're relocating. You've got
• 45:27
  Speaker 3: to learn how that affects your plan. You've got to understand.
• 45:30
  Speaker 3: Don't rely on another thing. Don't rely on joint ownership of assets, right,
• 45:34
  Speaker 3: don't and please don't forget to fund your trust, if
• 45:37
  Speaker 3: you did your planning, and if you are get a divorce,
• 45:42
  Speaker 3: or if you or if you had a spouse who dies,
• 45:45
  Speaker 3: these are issues that are potholes for people who have
• 45:47
  Speaker 3: done their planning. So, folks, this guide has got something
• 45:51
  Speaker 3: for everybody. If you've done your state plan, look it over,
• 45:54
  Speaker 3: See if it needs updated, See if it needs revised,
• 45:56
  Speaker 3: See if there's been life events that affect your plan.
• 46:00
  Speaker 3: If you haven't done your planning, get it so that
• 46:02
  Speaker 3: you don't make these mistakes when you're putting together your
• 46:05
  Speaker 3: state plan eight six six eight four eight five six
• 46:10
  Speaker 3: nine nine or Legal Exchange Show dot com again eight
• 46:13
  Speaker 3: six six eight four eight five six nine nine or
• 46:18
  Speaker 3: Legal Exchange Show dot com. And you can go to
• 46:21
  Speaker 3: our Instagram page Cushing Dolan PC for more info.
• 46:25
  Speaker 1: So, just to.
• 46:27
  Speaker 2: Finalize the conversation about the estate tax benefits of creating
• 46:30
  Speaker 2: a trust, Yes, you get that benefit whether it's revocable
• 46:35
  Speaker 2: or irrevocable.
• 46:36
  Speaker 3: Correct estate tax benefits yes, Probate and estate tax benefits
• 46:42
  Speaker 3: you will get with the with an irrevocable trust show.
• 46:44
  Speaker 2: Okay, if you have just a will and you've not
• 46:47
  Speaker 2: done trust planning, is there anything that can be done
• 46:50
  Speaker 2: short of giving away your assets, which I know we
• 46:52
  Speaker 2: don't like to protect against nursing homes.
• 46:56
  Speaker 3: If you've not done your if you've.
• 46:57
  Speaker 2: Not done a plan, like will your will somehow protect
• 47:00
  Speaker 2: from that?
• 47:00
  Speaker 3: No, No, the will won't protect them. Mean, there's some
• 47:03
  Speaker 3: last minute things you can do if someone gets sick
• 47:05
  Speaker 3: and you happen to be married. We've talked about those
• 47:07
  Speaker 3: on our shows. But that's not planning nothing in advance though. No,
• 47:10
  Speaker 3: if you've not done anything in advance, you're really you're
• 47:14
  Speaker 3: really at the at the mercy of the nursing home
• 47:17
  Speaker 3: and whatever last minute medicaid rules might provide you some relief.
• 47:22
  Speaker 3: But no, and again, I don't want to give away
• 47:26
  Speaker 3: my ass. That's what. Just use a trust first, So
• 47:28
  Speaker 3: if I'm going to make a gift, it's going to
• 47:29
  Speaker 3: be to a trust YEP.
• 47:31
  Speaker 2: And then for how about like bloodline planning things. I mean,
• 47:34
  Speaker 2: you can say in your will where you want your
• 47:36
  Speaker 2: stuff to go, right, But can you do divorce proofing
• 47:38
  Speaker 2: and all that stuff in a will? Yeah?
• 47:40
  Speaker 3: Well, I mean I guess you could put together a
• 47:42
  Speaker 3: testamentary trust built into the will. We do that, but
• 47:45
  Speaker 3: we do it only for very specific assets. For medicaid
• 47:48
  Speaker 3: planning like life insurance and an IRA, and it's for.
• 47:51
  Speaker 2: A spouse, right, not for for a spouse.
• 47:53
  Speaker 3: And then ultimately it can be divorce proof when it
• 47:55
  Speaker 3: goes when the spouse dies to the kids, so you
• 47:58
  Speaker 3: can you can build a you know, language, divorce proof
• 48:02
  Speaker 3: language into a testamentary trust. But remember, folks, a testamentary
• 48:07
  Speaker 3: trust is not really a state planning because it doesn't
• 48:10
  Speaker 3: exist until you die because it's in your will. It's
• 48:13
  Speaker 3: built into your will, so it doesn't exist until you die.
• 48:16
  Speaker 3: So therefore you know you're not doing any advanced nursing
• 48:21
  Speaker 3: home planning. To advance nursing home planning, you have to
• 48:25
  Speaker 3: put assets in an irrevocable trust while you're alive and
• 48:29
  Speaker 3: get the five year clock running so that five years
• 48:33
  Speaker 3: after you set it up it's done with a testamentary trust.
• 48:37
  Speaker 3: Five years later, it hasn't even started because it doesn't
• 48:40
  Speaker 3: exist until you die. So I say yes with a
• 48:44
  Speaker 3: testamentary trust, but I'm not telling you that that's the
• 48:47
  Speaker 3: way you're playing.
• 48:48
  Speaker 2: Yeah, and is do you ever get to a point
• 48:51
  Speaker 2: Todd where it's too late to do trust planning in
• 48:55
  Speaker 2: someone's life?
• 48:58
  Speaker 3: Well, I mean I guess the time it would be
• 49:01
  Speaker 3: too late, I guess is if you've lost capacity and
• 49:03
  Speaker 3: you don't have a power of attorney. So that's kind
• 49:06
  Speaker 3: of hard to do it. I guess it's not I
• 49:09
  Speaker 3: guess effectively, still too late. You could go petition the
• 49:11
  Speaker 3: court to get a guardianship, and then the guardian can
• 49:15
  Speaker 3: petition to do an estate plan for the individual. So
• 49:17
  Speaker 3: I mean, I guess legally, as long as you're still alive,
• 49:20
  Speaker 3: it can be done.
• 49:21
  Speaker 2: I think, like at age wise, is there somewhere that
• 49:24
  Speaker 2: you go.
• 49:25
  Speaker 3: Yeah, well, I think the question that's being begged is
• 49:27
  Speaker 3: you know, why did we wait that long? And why
• 49:29
  Speaker 3: would we do it if we know they're on their deathbed? Well,
• 49:31
  Speaker 3: oftentimes to avoid probate, if nothing else, throw together a
• 49:34
  Speaker 3: revocable trust, avoid probate, and to really express your wishes
• 49:38
  Speaker 3: as to how people get it, when they get it,
• 49:41
  Speaker 3: why they get it right. So I mean, even if
• 49:44
  Speaker 3: I'm dying, I still want my family to avoid probate,
• 49:47
  Speaker 3: and I still want, you know, maybe certain items to
• 49:49
  Speaker 3: be held in trust for certain kids and divorce proofed
• 49:52
  Speaker 3: or certain grandchildren to get it in certain ways. Ye,
• 49:56
  Speaker 3: I can still accomplish that.
• 49:58
  Speaker 2: And that five year look back. That's only for the
• 50:01
  Speaker 2: nursing home protection. Everything else starts on day one, right,
• 50:04
  Speaker 2: all of these things that we've talked about exactly.
• 50:05
  Speaker 3: I mean, think, when you're at that age, you're not
• 50:07
  Speaker 3: doing it for nursing home planning. You're doing it just
• 50:09
  Speaker 3: to make sure that your wishes are taking care of.
• 50:11
  Speaker 3: So I guess it's dance. The long answer is, it's
• 50:13
  Speaker 3: never too late, and folks, it's never too late for
• 50:16
  Speaker 3: you to get the guide. It's estate planning potholes to avoid.
• 50:20
  Speaker 3: Good for people who haven't planned, good for people who
• 50:23
  Speaker 3: have planned, to see what they might need to do
• 50:26
  Speaker 3: to change their plan as their life events change. Call
• 50:30
  Speaker 3: and get the Guide eight six six eight four eight
• 50:34
  Speaker 3: five six ninety nine or Legal Exchange Show dot com
• 50:38
  Speaker 3: again eight six six eight four eight five six nine
• 50:42
  Speaker 3: nine or Legal Exchange Show dot Com.
• 50:44
  Speaker 2: Todd Lotsky 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.
• 50:49
  Speaker 2: I'm Susan Powers, a financial advisor with the Armstrong Advisory Group.
• 50:53
  Speaker 2: We thank you for joining us today and we'll be
• 50:55
  Speaker 2: back again next week on the Legal Exchange with Todd Lutskey.
• 51:00
  Speaker 1: Long term care costs can reach thousands of dollars per
• 51:03
  Speaker 1: month and can put a serious strain on your savings.
• 51:05
  Speaker 1: The experts at Cushing and Dolan often see families caught
• 51:08
  Speaker 1: off guard by that reality. Without the right plan in place,
• 51:11
  Speaker 1: those costs can quickly eat through a lifetime of your
• 51:13
  Speaker 1: hard work. But here's the shocker. Many estate plans don't
• 51:16
  Speaker 1: protect your assets from those expenses. The right strategy may
• 51:20
  Speaker 1: involve specific types of trusts designed to help protect your assets,
• 51:23
  Speaker 1: but timing matters. Cushing and Dolan has a brand new
• 51:26
  Speaker 1: guide called Detour a Head estate planning Potholes to avoid.
• 51:30
  Speaker 1: It breaks down some of the most common and costly
• 51:32
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