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November 10, 2024 • 40 mins
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Episode Transcript

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Speaker 1 (00:12):
He served at the Pentagon as an army jag. He
graduated from Notre Dame and has two law degrees from
Boston University and Georgetown University. He's been practicing law for
over thirty years. He's your family's personal attorney. It's time
for the David Carrier Show.

Speaker 2 (00:32):
Hello, and welcome to the David Carrier Show on David Carrier.
Your family's personal attorney. And you have found the place
where we talk about a state planning, elder law, real
estate and business law. So give us a call. Went
on just six one six seven seven four twenty four
twenty four. That's sixty one six seven seven four twenty

(00:52):
four twenty four. You know, I've heard of this place
in Boston called Harvard University. Have it hai A v
V A on a D Havid Havid Hurrah. Anyway, it
it had a reputation as a you know, I don't know,
some sort of school whatever. Uh, but but recently, the
the professors at Havard have decided to give all a's

(01:16):
to their students. Did you see this in the news. Yeah,
if you go to Harvard, Uh, you're not going to
get a B, or a C or a D. Why
because you'd squeal like a stuck pig, that's why. And
the you know, and and then you have to go
to the rumpus room and you know, get readjusted or whatever.
And so the professors the average grade at Harvard, now
Harvard is an A who the hell believes that? Does

(01:42):
anybody believe that? You know that? That that they're all
a students? I guess so I guess you know, you
get into Harvard and uh. And now the the professors
in a you know who knuckled under when it came
to great inflation and said, yeah, if you got in here,
I guess you're you know, whatever material you produce, you know,
whatever vomit you deposit on the page, I guess that.

(02:05):
I guess that's a material.

Speaker 3 (02:06):
Okay.

Speaker 2 (02:07):
The same cadre of brave civilian defenders, UH decided. Also
you may have heard of this. There was a some
political stuff was going on, like last week or something,
and it didn't go the way that everybody wanted it
to go, which is the nature of politics. I mean,
sometimes you wouldn't, sometimes you lose. But anyway, what these
what these professors did, and this is what really redeemed

(02:28):
them in my site, It wasn't that they set up
rooms with milk and cookies and stuffed animals to cuddle
and things like that. It wasn't that that I found
so impressive. It wasn't the uh, it wasn't the infantile
justification of everything by the professors. And it wasn't the
abandonment of its uh you know, uh history of not

(02:50):
supposed nonpartisanship by the Kennedy School of Business to declare
that it is now an organ of the Democrat Democrat Party. Uh. No,
none of those. Those those aren't the things that I
find so admirable. The fact is, though, that because the
teachers cancel classes, extended deadlines and all the rest of it.
You know, they gave the kids a day off, that

(03:12):
the professors agreed that they would not be paid for
any of the days during which they were not teaching
because the kids were not we're not going to be there. Now,
that's the kind of commitment that you'd like to see.
So you're a professor and you're making X hundred thousand
dollars a year teaching at Harvard because you must be
really good at giving a's to people. I guess you're not.

(03:35):
Particularly you don't have to be good at grading. See
that's the thing. Grading. What a having to read papers
and stuff like that, I mean, or give tests or
any of that stuff. How ridiculous, How how anti de Luvian?
How how dare I say Trumpian like to give a
test or anything. No, when you're at Harvard, you get

(03:56):
in A. That's how it works. It's the average grade
now is in A. So so you know, so, yeah,
you know you don't have to do that. I I
understand why should you, right, But the idea that you're
going to completely take days off and suspend assignments really
kind of put your money where your mouth is, there
by foregoing pay for those for all those days during

(04:20):
which you're not thinking great thoughts in front of the
in front of the kiddies. Of course, most of your
classes are done by teaching assistants anyway. But you know,
but still, you know, it's a it's it's it's the
putting your money where your mouth is, refusing to accept
pay for the days you gave the kids off to
go cuddle with animals and drink milk and cookies and color.

(04:42):
Actually I read this somewhere that they have like coloring
books for the for the college students, now, which I
don't think Father Hesburg would have approved of. But it's
a new day, A new day is dawning.

Speaker 4 (04:54):
So what.

Speaker 2 (04:57):
Oh what? But they're still get paid. I'm sorry, I
got that. I got that wrong. They are getting paid. Well,
I guess nothing is nothing surprising anyway. Six one, six, seven, seven, four,
twenty four, twenty four. Don't send your kids to Harvard.
Don't be a sap does eight? Here's a here's a

(05:18):
good question. Though, here's a good one. Does a person
have to pay Medicaid back if it's only retirement money
that was left to me by my deceased wife? Is
a person required to pay money back to Medicaid if
inherited for retirement from deceased spouse?

Speaker 1 (05:35):
What?

Speaker 2 (05:36):
How does that work? I think the short answer is
the short answer is no, because it's not going to
go through probate. Right. So if you received, if your
beneficiary on a retirement account from your spouse, would you
would you would Medicaid come in and grab that? The
answer is no. Now, in most states they would put

(05:59):
a leaning against any real estate. But see, here's my question.
How'd you get on medicaid if there was any money
left in the name of the person, right, So it's
obviously a spouse calling in. You know, how do they
have to pay back the money they got from their
deceased spouse? But how did your deceased spouse get medicaid
with any money? Me smells medicaid fraud. Me smells somebody

(06:24):
got away with something. I don't know how they did it.
But but good Anya. So the answer would be no
in anyway, you know, I would I'd be really wondering,
how is it that there was any Now, there are
ways to annuitize retirement plan assets that we can that

(06:46):
we can do. Maybe that's what they did. Maybe they
maybe they did one of those. There are some pretty
there are some pretty goofy things we could do with
retirement plan assets. But generally speaking, when I've got a spouse,
I don't want to run the risk. But they're not
talking about it the way they'd be talking about it

(07:06):
if they had used some of these other techniques. So
it makes it really makes you wonder. Bottom line, in
order to qualify for the long term care, you cannot
have assets in your own name. There are some exceptions,
but retirement plan assets are not one of those. Exceptions,
So you know, if your spouse has an IRA, presumptively

(07:28):
it's countable. Like I say, there are ways around that.
We do those ways around that, but generally speaking, you're
not going to have a state recovery from it. What
can be done about family members taking advantage of an
elderly woman in the early ages of dementia. My elderly
family member who's seventy years old. I was talking to

(07:51):
a guy at a bar last night, and you know,
there are two big screen TVs, and it's like, hey,
can I watch a Notre Dame game? Do you mind?
And I go, oh, no, no, I owe you notre
name blah blah blah. It turns out his grandfather went
to Notre Dame, the kid had been there and whatnot.
He goes, yeah, he is my grandfather. Oh he's seventy
years old. Oh really old guy. And I'm like, yeah,

(08:12):
well I'm sixty eight. He's like, what So when I
read this elderly family member is seventy years old, Hey,
I'm knocking on that door anyway. Elderly family member has
been diagnosed with dementia. Hey, welcome to the club. Was
recently taken from their home by other family members. They

(08:32):
have allegedly taken control of my family members' finances and
left them without a place to live. What legal actions
can I take to protect my family member's rights and
ensure their well being? Well, here's the thing. First call
would be to Adult Protective Service. Well, first call would
be the family members, just to find out who's starting this,
whether it's a rumor or a report. Did it happen,

(08:54):
did it not happen? You need to figure out what
the heck's going on before you start accusing your family
members of stuff. The ninth Circle of Hell in Dante's Inferno,
which is where the Great Satan is, is a frozen lake.
The devil is frozen into a lake with his wings
beating constantly. Right, you know who's frozen into the lake
with him, The people who are betrayed their country and

(09:18):
their family. Okay, I'm not even going to go into
the description of the horrors that await people who betray
their family members. Okay, it's terrible, but you don't have
to wait for that. You know that's all eternity. But
right now you can call Adult Protective number when you
find out what's going on. Okay, make sure that whatever
you heard is accurate. But then secondly, adult protective services

(09:41):
would be a good call. Then you can move on to, well,
maybe I need to get guardianship over this person, guardianship, conservativeship,
find out what's exactly going on, and at that point
contact the attorney. The sooner you get the attorney involved.
Frankly in this process where you're actually sitting down with
somebody who can help you with the investigation, knows the

(10:02):
questions to ask. The better off the better off you're
going to be. Too often families divide when somebody says
something and it gets repeated and gets repeated and it
isn't wasn't accurate the first time. So finding out the
facts that's number one. Number two adult protective services. Number

(10:22):
three would be going to court for a guardianship conservatorship.
So there are things that can be done, but your
first case is investigation. The first thing you should do.
First step is investigation, and your local attorney, you know,
we can help with that, but with the eye to
building the case if necessary, for a guardianship, for conservatorship,

(10:46):
for the lawsuit for you know, exploitation of a vulnerable adult.
All right, but that's the way to go even listening
to the David Carrier Show on David Carrier your Family's
Personal attorney.

Speaker 5 (11:02):
He comes us nice, it's all right.

Speaker 1 (11:20):
This hour of the David Carrier Show is pro bono,
so call in now at seven seven twenty four. This
is the David Carrier Show.

Speaker 2 (11:33):
Welcome back to the David Carrier Show. I'm David Carrier,
your Family's personal attorney. As I promised, you know, we're
sticking strictly with strictly with the law. Yeah, yeah, that's right,
the law. We're not going to comment on big doings
that are, you know, obviously beyond our beyond our ken

(11:54):
and outside of our ability to do anything about.

Speaker 1 (11:59):
Right.

Speaker 2 (11:59):
So uh, no more, no more politics here because no
we don't. We do not believe in infecting politics now.
Sooner or later, I'm going to figure out how to
work this computer.

Speaker 1 (12:12):
Come.

Speaker 2 (12:12):
Oh, here we go, all right, exit full screen. You know,
technology is great when it works, but when it doesn't,
it's it's kind of a it's not it's not a
happy thing. All right, here we go, Oh terrible six
one six seven, seven twenty four twenty four. That's the

(12:32):
number to call you'd like to get your question, comment,
or concern on the air, and uh, if you need
milk and cookies, crow up. Anyway, you're already getting a's.
Plus someone else is paying for your education. Anyway, if
you're a hava. How much does a POA have? How
much power does a POA have? All right, I assume

(12:54):
they mean power of attorney. Now here's the thing, a
power of attorney. And for me say this before I know,
I'm i'm, I'm addressing the whirlwind that will never listen
to me. Someone else is new. The document is a
power of attorney. The individual who is acting for the

(13:15):
other person, right, is not a power of attorney. The
individual who's acting for the other person is the attorney
in fact, the patient advocate or the agent. Okay, can
we get her terms straight? Not that it matters, because
everyone's just going to keep saying poa. This is actually
a Court of Appeals decision where they were the court
in the opinion referred to the person who should They

(13:37):
should have said agent, but they didn't. They said the
power of attorney did this. And I'm like, when you
lost the Court of Appeals, and that was years ago,
I forget about it. The battle is lost. Anyway, here's
the thing, how much power does the power of attorney have.
My girlfriend, non relative, I guess, is in a nursing
home with Alzheimer's. Her son was restricting me from seeing her,

(13:58):
which is one of the things you get to do
with a health care power of attorney. You get to
see you get to make health care decisions for the person,
including including living arrangements, including who gets to see somebody. Okay,
it would be a very unusual health care power of
attorney where the patient advocate did not have the authority
to determine living arrangements for somebody. Now, maybe he just

(14:21):
doesn't like you or you know who knows, but they
certainly do generally speaking, the patient advocate does have control
over who visits. Now, the nursing home finally stepped in
on her behalf. He is still not letting myself well,
meaning what meaning they said, okay, you can have a
compromise where you can come in and visit. I guess

(14:43):
that's what that means. And it says he the son,
I guess, is still not letting myself or any of
her friends take her to lunch or even out of
the building for a walk.

Speaker 3 (14:52):
What are my rights?

Speaker 2 (14:53):
Well, the entry is you have no rights. Really, you
really have no rights. She has rights. She has rights
to associate. It the Constitution right free association. She has
your right to associate with whom she wants. As a
citizen in the United States, you get to go where
you want to go. The knows that song, go where
you want to go, do what you want to do. Right, Well,

(15:14):
you have those rights. It's constitutional, it's fundamental. Okay. The
only reason that there's any restriction on her right to
see you, right is because she granted authority to her
son as patient advocate to control that stuff. Because she
recognized that there may be situations where she is not

(15:35):
able to exercise her rights, so she delegates those That's
what a power of attorney is, when you delegate your
rights to somebody else to exercise those rights on your behalf.
That's what's going on here. Now. You're complaining because he
won't let you take her out of the building or
you know, to go to lunch or for a walk
or something like this. Well, okay, go visit. Okay, but

(16:00):
maybe there's a balance to be struck. Who gets to
make the balance, who gets to decide the answer? Is
the person who has the authority. Who's that person? The
answer is the patient advocate, the person who holds the
power of attorney. Is it possible to do a power
of attorney without that authority?

Speaker 3 (16:17):
Sure?

Speaker 2 (16:18):
It is all right. So that's why every single time
when a power of attorney's involved, it's not enough to
say I have a power of attorney, I have of this,
I have of that. That's not enough. You have to
take the next step of actually reading the damn thing
to figure out what the hell you're allowed to do,
what you're not allowed to do. What the delegation the

(16:39):
extent of the delegation of rights has been, Okay, you
have the right to do all excuse me, you have
to do all that in order to determine whether or
not what's being done here is appropriate. Now, one of
the problems that you have with people who are not
involved all the time, with people who are offering from

(17:00):
the dementia what have you right, is they don't really
realize how damaging it can be, how dislocating it can be.
In some cases for the person to go to their
own home. They want to go home, they want to
go home, so they'll take them out, they'll drive them
past the home you know where they used to live. Okay,

(17:21):
now you've got three or four days of turmoil because
they expected to go home, and you know, you just
there's a lot of dislocation that comes from that psychological
Now that's not all the time, and sometimes is it
used as an excuse. Yeah, it can be. Yeah, absolutely,
it can be like everything else. You know, things can be,
things can be, things can be twisted. But you should

(17:42):
have a little humility. I would suggest about that. Let's
see how can my where'd that one go? Let's get
a let's get another one.

Speaker 1 (17:59):
Here.

Speaker 2 (18:04):
I inherited land with four others. They want to sell
I do not. I live on the land. Could I
get my share of surveyed off? It's in probate. I
inherited my mother's portion of land along with her four sisters.
The sisters want to sell the land, but I do
not want to sell my part. I've been living on
part of land. I want to know if I could
get the part I live on surveyed off. This is
what we call an action for partition over a mount

(18:26):
I inherited. I could just pay the remaining to the sisters,
But the land is in probate right now. Okay, so
the land's in probate right now. The lands in probate
right now. Well, here's the deal. If the land is
in probate right now, then whoever the personal representative is
of the estate doesn't have to allow you to stay there.

(18:46):
They could evict you from the land. Mo've done this
a million times where somebody, you know, we've got the house,
one of the kids is staying in the house, and
then you have to evict the kid, sell the house
and give them their money. Now, generally speaking, it makes
sense if one of the kids actually wants to pay
what the house is actually worth, or the land or

(19:07):
what have you, to have that person pay the money
to buy out the other shares. So, if that's what
you want, you know, go to the probate court and
ask for a protective order or direction to the personal
representative that that happened. You can, you know, you can
at least get in front of the judge. You can
at least argue for that. But in a situation like this,

(19:33):
you don't could this happen, Yeah, it could happen, right,
Could you get just a portion of it and not
take a distribution in cash when they sell off? There
could that happen, Yes, it could. But those are the
sorts of things that only happen when people cooperate with
each other. Because the aunt of yours, you know, your

(19:54):
mother's sister, deceive mother's sister. I mean as personal she
could sell the land out from under you. She could
evict you, sell the land and hand you a check.
If you want something other than that, then you have
to cooperate. Then you have to work together. Generally speaking,
families want to work together, they would be they would

(20:14):
rather work together, all right. So in a situation like
this where you're feeling kind of vulnerable because you're living
on the land, what have you? Right, then you need
to reach out. You need to be understanding, is what
I would suggest. Even listening to the David Carrier Shell.
I'm David Carrier, your family's personal attorney.

Speaker 4 (20:44):
Not at all, so you can see this to be.

Speaker 1 (21:04):
David's got the how too you're looking for? Just call
seven four. This is the David Carrier Show.

Speaker 2 (21:16):
Let's keep it Welcome back to the David Carrier Show.
Bonus points for you if you remember that this song
was from the Poseidon Adventure. Do you remember that I do?
I saw it at the drive it this is where
the big wave hit the cruise ship and made it

(21:37):
upside down, and they were singing this in the uh,
you know, in the ballroom on the cruise ship, which
I guess the cruise industry probably had that movie suppressed.
I don't think that actually happened that we're just saying that.
But yeah, remember it was. It was upside down and
they were making their way to the engine room or

(21:58):
whatever the heck they were. We're doing. It was one
of the first, one of those first big disaster movies.
And speaking of disaster movies, writing the Ship of State
and all the rest.

Speaker 4 (22:08):
Of that.

Speaker 2 (22:10):
Big doings in the good old us of A. But
we talked about that in the first hour. So you
can go back and get the podcast if you want to,
or you know, whatever it is. However, you do that
if you want to hear about that. But I would
never you know, I don't want to make the show politically.
We don't. We don't want to do that. No, no
politics around here, glory yeah, anyway, we don't want to

(22:33):
do that. So let's get to uh, let's go back
to some emails, sayall we do that does a boyfriend
oh oh, You can interrupt this too if you want
six one six seven seven four twenty four twenty four.
That's six one six seven seven four twenty four twenty four.
Don't be like those Harvard students who are used to
getting all a's and not having to do jack squat

(22:53):
for it, or their professors who continue to get full
pay even though they're taking the day off to feed
the kids cookies don't be in color. Apparently, don't do that.
They're doing that at Georgetown too, you know what I mean.
I have a I have a you know, one of
my my Master of Laws degrees from Georgetown. So it's
like when they pull crap like this, it's just like,

(23:14):
what now, you freaking kidding me. I'm glad I got
the degree when it was a lot less expensive. But
uh but anyway, Yeah, Georgetown apparently milk, cookies, drawings, and
I think they had puppies or something to calm the
kids down. These are people who are supposed to be
the future leaders of America, you know what I mean. Well,

(23:36):
but you know they do that in basic training, you know,
whenever the whenever the troopers have had a hard time,
they did this for us, you know, they you know
the sergeants, you know, they would take you in and say, yeah, guys,
that was kind of rough today. You know, I had
kind of a long march feet hurting. Oh well, we
have these messuss here they'll they'll, they'll fix you right up.
And here you go. Have have some you know, have

(23:57):
some cocoa, and you know, let's just take tomorrow off on.
It's kind of stressful, you know, that jumping out of
the airplane stuff. Kind of stressful. Let's not you know, oh,
just relaxable. Anyway, does a boyfriend here's an email? Does
a boyfriend, Now you think you got it bad? You

(24:17):
could be in this situation. Does a boyfriend of a
deceased family member have to sign a legal paper that
gives my mother the right to put her name on property.
After years, my mom has decided to get the land
where she lived all her young life with mother because
dad died young. Okay, so this guy's mom was raised

(24:41):
by her mom and whose husband died young. So so
the grandfather died young. Grandmother raised the kids on this
patch of land, I guess right, and there were seven
kids left with the mother to raise. Okay, so this
guy's grandmother raised seven daughters or seven kids. Anyway, Now
everyone is dead except my mother at seventy eight. Okay,

(25:03):
so she's the last person standing. She's getting all individuals
to sign in order to get it. I guess the
homestead transferred to mom's name, grandmother's name, mom's name because
the grandparents never made a will. Shocking. She still needs
two children of deceased granddaughter of one of her brothers,

(25:27):
a grandson in a prison psychological ward, and a so
called boyfriend of the deceased granddaughter. Now here's the thing
for the grandson who's in prison psychological ward. There's probably
someone who has authority to sign for that one. Okay,
he can't sign for himself because he's in a psych
word apparently, if he's still mentally competent. Write what's he

(25:50):
doing in the psych word in the prison? I don't know,
So we're probably not able to sign for himself. So
there must have been a conservator or a guardian appointed
for this guy. You got to find out who he is,
who he or she guardian for this person is. If
there isn't one, then you need to file just for
the limited purpose to get a protective order saying that

(26:12):
his interest in this property, which isn't worth anything to
it goes to his great aunt. Okay, but but here's
the problem. If you're in prison, prison is not free.
You know. Do you think that if you commit a crime,
you go to prison, it's free. It's not free. They
want to get paid for putting you up. And if

(26:34):
we get an inheritance or something, they're coming after the inheritance.
Now will they allow this guy just to sign off? Well,
I don't know. Is this you know what kind of
property is this? Is this Jaed Klampett's property before he
went shooting for some food and out of the ground
came a bubbling crude? Is it like that valueless? Or

(26:57):
is it after a shot.

Speaker 3 (27:00):
Came out?

Speaker 4 (27:00):
You know?

Speaker 2 (27:01):
Is that the mansion with the seaman pond? I don't know.
We don't know what property this is. If it's got value,
it's extremely unlikely that the state would just say he
give it up. But if it doesn't have value, then
they don't care, right And plus it's a pretty circuitous
path to get here. Now. The other one is the
boyfriend of a deceased granddaughter. Now, how in the world

(27:24):
would the it's possible that the granddaughter has an interest
in the property because if her parents died, right, the mother,
we don't know anyway, So the granddaughter died, the granddaughter
of the grandmother, who is one of the brothers or

(27:45):
sisters of this guy's mom. Right, so they have a
surviving child, So that child would naturally you would think
inherit the parents with the parents share, right, But there
is no she's deceased, now was there in a state?
Did she have heirrors? It wouldn't go to the boyfriend.

(28:07):
Why would it go to the boyfriend unless the deceased
granddaughter had a will that said give my stuff to
the boyfriend. Well, then maybe that would be a way.
But what if there is no will, then we don't
have to worry about the boyfriend because the granddaughter didn't
have it. Assuming the granddaughter doesn't have any kids, then
it goes just goes back up the generation and now mother,

(28:30):
the living mother, would great aunt would inherit. So that's
what you do. If you've got a grandson in a
prison psychological ward, talk to the representative that's been court appointed,
or go and get a quart appointed representative yourself and
have them sign off on it. But you better be
able to prove that there's really no value to this property,

(28:52):
because if there is value to it, then the state
is going to want to get paid back. So that's one.
The other is if a granddaughter has a deceased granddaughter
had a boyfriend. The boyfriend's not entitled because he's a boyfriend,
but he might be entitled if the deceased granddaughter had
a will that gave all of her property to the boyfriend,
and then you gotta yeah, then you got to deal

(29:15):
with it. And again you've got to and you know
who the hell knows, um, you got to get the
boyfriend to sign off, and you've got to prove that
there is no value or minimal value or whatever. I
think you're going to be paying off the boyfriend. And
I think you've got to figure out how much the
state of wherever the person's in prison is going to

(29:36):
want for it to release it. Just saying everybody else
may have signed off, but these these two may be sticky. Now,
if deceased granddaughter did not have a will or it
wasn't probated, then you should go to the probate court
for the mother of the deceased granddaughter and and try

(29:56):
to get it, try to get an assignment from that
that court. That's how that's how I go about it.
But just be glad this is not your family. And
one more reason not to leave a mess like this.
You've been listening to the David Carrier Show. I'm David Carrier,
your family's personal attorney.

Speaker 5 (30:16):
Sonny Day, Good day shine, God day sun shine, God
day shine.

Speaker 1 (30:30):
We take a walk. David's working and working and taking
your calls. Now, this is the David Carrier Show.

Speaker 3 (31:04):
Good morning. Oh you heard that? Hello you tweet tweet,
good morning.

Speaker 2 (31:25):
Welcome back to the David Carrier Show, where it is
indeed morning again in America. Do you remember a time,
here's a here's a test for you. You remember when
you could listen to this song and it wasn't ironic?
Do you remember that there was a time when you
could listen to the Mamas and the papas singing about

(31:45):
you know, twinkle above us and Twinkle below and it
was like, yeah, yeah, how far we have? How far
we've come? Huh different different kind of a different world.
I'm not sure which one I prefer. Anyway, We're entering
into a golden age now, so let's let's just accept that.

(32:06):
You know, that the things are going to get better
and better as we as we move forward, you know,
found it in common sense and meritocracy. Don't say that
word anyway. Six one, six, seven, seven four, twenty four,
twenty four. If you've got a question, comment, or concern.
Just got a few minutes left, but I'm going to
knock some of these out. Can you dispute a power

(32:28):
of attorney? My niece claims that she has power of
attorney over my brother, her father, but his mother is
still living. My brother has never been married. What my
brother her father, but he's never been married. How do
we know that it's his need? How do we know
that it's his daughter?

Speaker 1 (32:47):
Then?

Speaker 2 (32:47):
Anyway, my niece is not his only child. What wait
a second, he says he's never been married. How can
he have kids? There's another relic of the past, right
who is considered to be his next of kin. Well,
his kids are his next to Kim, and apparently he's
acknowledged them. He's got paternity over them. What I understand here,

(33:08):
So it's not like it's not like they're just as
they're not. They're your nieces, but they're his kids. So
his kids have his kids are the next to Kim.
That's the way it works. And they all have the
same order of precedence. It's not like you know, you
know who was wealth first or anything like that. It's
you know, and all kids are kids. So let's say

(33:28):
one of the one of the kids was from someone
he was married to, was with a woman he was
married to whom he was married, that kid wouldn't have
any special priority versus the kid who was born out
of wedlock or adopted. It's all. If it's your kid,
it's your kid, and the story close the door. Shut up,
we don't We're not getting into all those gradations or

(33:49):
degradations you might say. So anyway, so his next to
kin is his kids, as simple as that. And can
you dispute the part of attorney? Sure you can, Like
you can dispute anything. This is America, Come on now.
Disputing things is one of the things we do best.
So if you want to dispute it, go ahead. But
it'd probably be a good idea to have a reason
to dispute it. I mean, was he incompetent when he

(34:12):
signed it? What you know, was there under influence? There
are ways to there are ways to do that. But
you know, no, no problem. Where does my mother's small
amount on checking account go upon her death? If there's
no will or trust and I'm the only child. My

(34:32):
mom's health up and down. She's been in hospital, skilled rehab,
and room and board. She's not mobile anymore. I'm taking
care of paying her all the bills for Where does
a small bounce or your checking account go, which is
on average about two thousand a month after all bills
and rent are paid. If she has no will or trust,
it up when she passes. Would this be next of
kin or succession? What does that mean? Next to kin?

(34:54):
The same thing. You're the next to kin, I'm the
only child and no family besides me. Okay, you're next
to kin. I'm on the only child. I've taken care
of her for a number of years. Now here are
two days?

Speaker 4 (35:03):
Now?

Speaker 2 (35:04):
This is important right because this person is saying I'm
the next to kin, I'm the only child. Good claim,
and I've taken care of her for a number of years. Irrelevant,
totally irrelevant. Does that make sense? Well, I don't care
if it makes sense or not. That's the way it is.
It doesn't matter that you've been caring for someone unless
there's a written contract, you know, where you're entitled to compensation,

(35:26):
especially if you're a family member. But you can't enforce
those things anyway, even if you're not a family member.
For such a small balance, with no assets, no car,
property she owned, seems like the trust will not be
worth it. Yeah, I agree, not worth it. Any advice
would be appreciated. Put your name on the account. Don't
you have power of attorney or something. Go ahead and
put your name on the account. I mean, you're paying

(35:46):
the bills. How can you be paying the bills unless
you have authority over the account, you know? Or I
would write myself a check for whatever you think the
balance is going to be. So here's what you should do,
because the bounce goes up and down. Self a check
out of the account today for three thousand dollars, which
is one thousand dollars more. But it might be three

(36:07):
thousand dollars, right it. It might get up that high.
And then after mom dies, go and cash the check,
all right, and you say, well, wait a second, it's
all you got two thousand dollars. Then I say, I know,
so go ahead deposit another thousand, and then you clean
out the account just the thought. That's an old landlord trick.
In case you were wondering, harder to do nowadays? Is

(36:28):
it legal? Here's one more before we get out here
is it legal? Oh? By the way, come to a
three secrets workshop. Go to the website. They're all on
the website sixty one six three six one eighty four
hundred or Davidcarrier Law dot com. Come to a three
secrets workshop. You will be glad you did. I'll be
even gladder. Is it legal to let real estate properties

(36:49):
stay in a trust until it sells? All children are
named as all children, and their name is both trustees
to execute trust and save our beneficiaries, which is total
total in sanity. To name all your kids as anything
except beneficiary, that'd be fine. There's real estate property in
the trust. The deed was changed to a trust name,
aim was obtained bank account open for the trust of state.

(37:11):
One sibling feels that the real estate should be transferred
to all siblings, as we was told that by a lawyer.
Idiot lawyer. Idiot lawyer, idiot lawyer. I've seen judges give
the same stupid, horrible, terrible family fracturing advice. You don't
do this, you do this ugh terrible.

Speaker 1 (37:30):
It's just terrible.

Speaker 2 (37:32):
Don't have enough time to explain all the reasons why,
stating that it can also be done whether the rest
like it or not. My understanding is, even though real
estate can be transferred when sold, it required by buyers.
So here's the problem. Here's the problem. And it's true,
the trust can transfer the property to the kids, but
all the kids are named as trustees. It doesn't matter
whether the kids like it or not. That can be done,

(37:53):
and it'll close the probated state. It'll close the trust
the state. But that's not a good reason. See the
problem with making all kid says trustees altogether. They all
have to agree on the sale right and as long
as it's in the trust. As long as it's in
the trust, now you have a layer of protection for
the kids. So when you sell it and the buyer

(38:15):
is unhappy for god knows what reason that comes against
the trust, not the individual kids. Do you see you
don't want to do this. This is why I have
one trustee. So the one trustee, I don't care if
you like it or not. They're the one trustee. They
sell the property for fair market value, and I gotta
cheat anybody, because there's heavy penalties if they cheat. If

(38:36):
the trustee cheats, very very bad. If the trustee cheats,
criminal liability, civil liability, terrible terrible. Let's trust the trustee
to go ahead and sell the property for a fair
price and then divide by however many that's how it goes.
But when you distribute it out to all the kids,
now they all have to sign the deed, okay, and

(38:58):
if they're unhappy with it now, they go back, they
see all the kids. Terrible, horrible, horrible, horrible. Bigger than
this issue is that the real state qualify for step
up processes properly step up, not burning it yet. Yeah,
so they all get stepped up basis, but the trust
gets stepped up basis too. The estate gets stepped up basis.
So you're not gonna be paying a big capital gain

(39:19):
tax bill whether it goes to the kids or whether
it goes individually. We are also concerned that if real
estate ded is transferred to all this now and out
of trust no longer but yes, no longer protected by
their trust. No contest clause. There's another one. So now
if you've got kids who are vindictive and whatnot, they
transfer it out. Now they sue each other, and they've

(39:41):
already got their property, the've already got their distribution right
before their trust is fully settled, or even trust is
fully settled right, so they're not going to get anything else.
And now there's no reason for them to fear the
no contest clause that's in the trust. Crazy, don't be
doing any of this stuff. You've been listening to the

(40:02):
David Carrier Show. I'm David Carrier, your family's personal attorney,
inviting you to our Three Secrets workshop, the workshops we
do all the time. Just go to the website David
Carrier Law dot com and have a wonderful.

Speaker 1 (40:17):
Week discussion addressing your question. You've been listening to the
David Carrier Show a lively discussion addressing your questions and concerns,
but not legal advice. There is a big difference, So
when making decisions that affect your family, your property, or yourself,

(40:39):
the best advice is to seek good advice specific to
your unique needs. If you missed any of today's show,
or would like additional information about the law offices of
David Carrier, please visit Davidcarrier Law dot com.
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