Episode Transcript
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Speaker 1 (00:00):
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 (00:20):
Welcome back to the David Carrier Show. I'm David Carrier,
your family's personal attorney, and you have found a place
where we talk about a state planning, elder law, real
estate and business law. So give us a call. Why
don't just six one six seven seven four twenty four
twenty four At six one six seven seven four twenty
four to twenty four. Here we question a comment or
(00:42):
concern about wills, trust probade, how we beat the high
cost of long term care, real estate and looking at
buy or sell the house? What have you? Now's the
time give us a call. Sixty one six seven seven
four twenty four twenty four. We've got Sewan on the line. Hello, Sean,
Welcome to the David Carrier Show. Hi, Hey, how can
I help Hi?
Speaker 3 (01:05):
In December, my father passed. In February, we got a
document saying that he had a trust and his wife
and four children are beneficiaris of the trust. It said that, okay,
dispersement would be after September thirty, the year after he passed,
which would have been in September thirty of this year.
(01:28):
None of us have seen any dispersement, and we're curious
as to who to contact regarding what's going on.
Speaker 2 (01:37):
Who's the trustee of the trust?
Speaker 3 (01:38):
John, his wife, our stepmother. And there's no there's no animas,
there's no We're all good. So nobody's accusing anybody anything.
Speaker 2 (01:49):
We just don't know, gotcha. But she would be the
one as the trustee. She's the one who's supposed to
give you an inventory and an accounting with regard to now,
did you get a whole copy of the trust? You
just get a piece of paper? Would you get We got.
Speaker 3 (02:04):
A full page document in February, and then in March
we got an inventory letter.
Speaker 2 (02:12):
That's okay.
Speaker 3 (02:14):
Thing we've seen about that.
Speaker 2 (02:17):
Well, it should it should say on the it should
say on that piece of paper that you the first
piece of paper you got. Anyway, it should say what
your entitlement is? You know, because there is okay, well
what is your entitlement? I mean, are you are you
getting so, I mean, is it a percentage ten.
Speaker 3 (02:39):
Of the of the balance will be split between the
four children. Uh, whatever income that generates goes to the
surviving wife when she passes, then the four children will
split whatever as weft. But the first dispersement was, well,
let me make schedule for September after septem.
Speaker 2 (03:00):
Number thirty, and you have an inventory, so you know
what that should be. Right, Yeah, I'll tell you. Usually
the problem here is there's no communication. You have no
idea what's going on. But it sounds like you know
exactly what's going on. It's just a matter of getting
out to do it.
Speaker 3 (03:18):
Yeah, and we are We're not. Nobody is like we
want the money, wants the money. We're just like, okay,
how does this happen? And you know it would be
awkward nod that we can't do it, but we want
to go pestering, you know, the set mom because we've
never talked to her about money or anything. And we don't
want to sound like we're there, but we just kind
would like to know who to Who are saying did
(03:41):
you write the check?
Speaker 4 (03:43):
Well?
Speaker 2 (03:44):
Right, well, you know, here's the deal. If there's an
elephant in the room. Ignoring the elephant doesn't make the
elephant go away, and pretty soon he starts doing his
business in the room, and then everything becomes unpleasant because
he didn't deal with the elephant in the room. So
that was there a There must have been a lawyer
attached to the invent. I mean, I'm guessing your stepmother
(04:07):
didn't do it all by yourself.
Speaker 3 (04:10):
Right. Looked at the last page and there they did
seem to be, uh, some law firm listed there. But
to me, I don't know any of this stuff, so
I didn't know. It was just like they just signed
off on if they wrote it. But that's all they did,
like you know, you pay us, we do that thing, No,
we're out or if ye again, don't know what, I
(04:31):
don't know.
Speaker 2 (04:33):
Yeah, so that would have been that That would have
been the beginning of the process, not the end. Okay.
And so we've checked the box. You got. You got
a copy of the trust that related to you. You
may not have received the full trust, but that's okay
because you got the part that relates to you. That's
what you're entitled to. Then you got an inventory again, excellent,
you got the inventory, and if the if the if
(04:56):
the trust says that you get ten percent of the
proceeds of them. Maybe there would be an accounting explaining
what stepmother's expenses were that would draw down the inventory,
if any you know, there'll be a formula in there,
some something, you know, to explain exactly how you would
reach what you get ten percent of. But you should
(05:18):
have that by now, right, this is the year following
the year of death, and I know December is kind
of you know, kind of pushing it, I guess, but
even still, you know, there should be there should be
some communication. And people are funny, you know, because on
the one hand, you got folks who are like, oh,
(05:41):
if you ask me directly, then you should deal with
the lawyers. But if you deal with the lawyers, then
they're like, oh, you should have asked me directly. I
could have answered it, you know. So if people go
back and forth on those I wouldn't I beg.
Speaker 4 (05:56):
Your pardon nothing, nothing, I'm sorry, Oh I.
Speaker 2 (06:00):
Thought you were talking. So the key here, the key
is I would reach out to the stepmother and say, hey,
you know, Barbara Carroll, Suzanne, whatever her name is. You know,
it has been about a year and we did get
the inventory and we did get the copy of the trust,
but I'm kind of thinking that we're getting to a
(06:21):
distribution time on the ten percent. Okay, you know, just
open the conversation. It's one of those mine fields, you
know what I mean, where people depending on who they
are and what their life history is and everything else,
and they may take it very easily or they may
take it very hard. And the thing with these is
(06:45):
people will tell you, oh, just put it this way,
or just say this, or just say that, and then
everything will be fine. That is not the case. It
doesn't really matter, Sean, to a large degree, it doesn't
matter what you say or how gently or commonly. Now,
if you say where's my money you rhymes with witch,
(07:06):
I can't believe you're cheating us out of arms, you know. Okay,
don't take that approach, bad approach, don't say that. But
you know, but you can be you know, sweet as
pie and very nice about it and they're very nice
about it and everybody's nice and it works out. Or
you can be sweetest pie about it and they're awful. Okay.
It's it's very difficult. It's very just so long as
(07:31):
you're kind of business like about it. You're you're nice
about it. You know, you're nice and constructive and stuff
like that, not vindictive or or bitter whatever else. You know,
you're just very nice about it. Matter of fact. Then
how they react is on them. And they might react
positively and they might react negatively. But for God's sakes,
(07:54):
don't be blamed if unless you go at somebody like
a jerk, right, and then if you're just being nice
and normal and stuff like that, if they react orly,
do not judge yourself later, Oh I should have said this,
or I should have done that, or there's no way
of knowing. Okay, I mean that's just that's just individual.
If you're being a good person, Okay, good people get
(08:17):
slammed all the time, and it's not it's not on them.
But at the same time, you don't want it to
go longer, then you've let it go. It seems to me,
I mean, this is not a bad time to start
bringing it up, because the other thing that happens is
if you don't mention it, then they don't think they
have to deal with it. Well, if you don't care,
(08:39):
I don't care. I My life is busy, I got
things going on. I don't want to deal with lawyers anyway.
Well you never you never mentioned it. You know. That's
another thing that you that you hear like, well, you
never mentioned it. Well okay, so now let's mention it
in a nice business like appreciative family, you know, kind
of way, no judgment or what have you. Just Hey,
(09:01):
you know, the trust did say, you know, twenty twenty five,
we kind of thought was the time of distribution. Okay,
So let's assume you have that conversation. It goes well,
it's like, oh, yeah, I thought they were taking care
of it, but they're not taking care of it. The
next thing you should get is a this is how
we would do it. Anyway we would make it. We
would send you a document that lays out the facts. Okay,
(09:26):
Dad was married to Susie, was had as much money,
and the revela, you know, all the facts. Each child
is entitled to a share of ten percent. That that
ten percent is ten thousand dollars a piece. And then
you sign off saying I agree to take ten thousand
as my share of the thing pursuing to the trust,
(09:48):
and Susie gets the rest and you know or whatever
in their conditions, right and there's an inventory and then
accounting and every and then you sign off on that.
There's no legal requirement you sign off on that, okay,
but if they're doing it correctly, you should get a
document like that that kind of sums everything up and says,
if I get my ten thousand dollars, I'm happy for now.
(10:11):
I understand that Susie dies, we get something else, but
right now I'm good to go. That should really be
the next step, okay, where everybody agrees on what's supposed
to happen next, and then you get your checks and
we're done with this phase of it. Okay, but I
would definitely raise the issue. I will thank you, okay, Yeah,
(10:34):
over the pumpkin pie. Well, no, no, no, don't do
it to me. Do it before or after, but don't
do it. Don't do it on the third Thursday. Don't
do that. You've been listening to the David Carrier Show.
I'm David Carrier, your family's personal attorney. Welcome back to
the David Carrier Show. I'm David Carrier, your family's personal attorney.
(10:58):
We've got Bob from Wyoming on the line. Hello, Bob,
Welcome to the David Carrier Show.
Speaker 4 (11:03):
Thanks David. Good morning. Hey, my wife and then clients
of yours and I appreciate, Yeah, we are, But my folks,
which is why I'm calling. My father is struggling pretty
(11:23):
badly and my mother is killing herself literally trying to
take care of him, and they both swear up and
down he is not going into long term care. I
don't see that lasting. I think there's not going to
be a choice there. My question is if my dad
(11:46):
does end up agreeing to go into long term care
and my mother agrees as well, are they going to
take pretty much everything they've got and then my mother
will be left with nothing after my father passes.
Speaker 2 (12:01):
Let's say, well that's pretty close, pretty close, But but
look this, this feels like a real soft pitch right
across the plate. Okay, because where where are your mom
and dad? If I could ask, are they live in
your neighborhood or okay? Yeah, yeah, fine, fine, good, good,
(12:24):
good good, perfect perfect? Okay. What's dad's income? I'm his
dad get a month, just ball, I don't need anything.
Speaker 3 (12:32):
Whatever.
Speaker 4 (12:33):
Pension would be couple thousand GM employee.
Speaker 2 (12:37):
Okay? And then do they have does he have four
to one k? As well? So he's got pension, he's
got hire, he's got so screwed, Okay, and it's just
dad who has.
Speaker 4 (12:49):
The They've got a paid off home anden Byron Center.
There's maybe one hundred thousand in the bank. And I'm
just concerned. They do have a trust through GM their
attorneys or something grew up, So I'm just template trust.
But I'm worried if my dad goes into long term
care that you know, the long term care facility will
(13:12):
sign onto the house, take all the income, and there
will be nothing left for my mother.
Speaker 2 (13:17):
Well, they're not gonna they're not gonna do well. They're
probably not going to do the house unless they don't
get paid. But they will take fifty thousand. Mom gets
fifty They'll take most of Dad's pension. The rest will
go to Mom. There's ways to it that'll get adjusted there.
But here's here's the here's the We did two of
these last week. Okay, so one of them, I'm gonna
(13:39):
say it's gonna sound a little weird, but it's it's
for us anyway. It's routine, Okay, it's not experimental, upheld
by the Court of Appeals, blah blah. I tell the
whole story on that. But your family's situation, Mom and
dad situation not at all unusual. Here's the problem. It's
not about going to long term care. It's about receiving
(14:03):
care in the home. Because the PACE program program of
All Inclusive Care for the Elderly, which is a Medicaid program,
you have to qualify for Medicaid to get help at home.
But now you'll get help at home and five days
a week they'll take you to the senior Center. Now
it's staffed by U of M Health, you know health
(14:25):
system people, so I know you of M. It's kind
of oh, who wants to go with those quacks? But
there you go, and it's all their meds, it's all
their pharmacy, it's durable medical equipment, it supplies, it's procedures everything.
No donut holes, no deductibles, no figuring this stuff out. Okay.
(14:45):
With the PACE program. The problem is probably and this
is routine with the GM guys, because you've got that pension,
you know, the Fidelity annuity that is the substitute for
the GM pension, and that puts them over the twenty
nine hundred and ten dollars a month of income that
they can have to qualify for the program. Okay, so Dad,
(15:10):
in all likelihood is not going to qualify for the
at home care where they come out to the house
five days a week, pick you up, take you to
the senior center, you know, breakfast, lunch, and a snack.
Mom gets to have a cup of tea and put
her feet up for a while, you know. And it
could be zero days a week, it could be five
days a week. It's up weekdays, it's up to it's
up to the individual situation. But the key is Dad's
(15:33):
not going to get it because he's got the GM pension,
which is kind of a bitter irony. Here he is
doing the good thing taking care of mom, and now
he doesn't qualify for the benefits he paid for because
he actually did too good a job taking care of
the family. So here's what we're going to do. Here's
what we can do. And like I said, we've done
(15:53):
this now hundreds of times, so it works every time
you do it. And that is we go to circuit court.
We go to King County Circuit Court and we say, hey, judge,
I got a married couple here and they want to
stay they're married, they want to stay married. They're gonna
stay married, that's the top priority. But they have assets
(16:14):
that they want to rearrange between the two of them.
And we can rearrange iras. We can rearrange pensions. Our
record is almost two million in iras move from one
spouse to the other. We can on the only pension,
it's not really a pension, but the only periodic payment
(16:35):
like that that we have trouble with is military retirement pay.
I can only move about forty five percent of that.
But we've done federal pension, state pension, local pension, private pension.
This is what mom and Dad have, right, And we
get the court order to move Dad's pension to mom.
And when we move Dad's pension to Mom, Dad's got
(16:56):
less than three thousand a month twenty nine to ten,
three thousand a month of Social Security coming in. Okay,
Now he qualifies Mom and Dad qualify for Dad to
receive care at home. Most of the care involved, you know,
it's personal hygiene, lighthouse keeping. During the COVID they did
grocery shopping, you know, whatever's necessary to keep Dad at home.
(17:20):
This is not a whoop off to the nursing home.
You go, no, No, this is mom gets dad's pension.
Mom keeps your own social security, Dad's social security, he
keeps it too, as long as he stays at home. Okay.
But what we're doing is not only enabling them to
stay at home right longer, but we're also setting up
(17:42):
in case in case, and it's rare one out of
twenty one out of ten times that someone actually needs
residential care. That's part of PACE also. Okay, most of
our clients. Ninety percent of our clients die at home
on PACE. It's five percent go to a skilled nursing facility.
(18:04):
The rest are being cared for at home because most
of the time you don't need all the facilities that
are available in a skilled nursing facility. You don't need that, right,
you could stay at home if you could get some help.
That's what the PACE program does for sixty percent less
than it costs to be in a nursing home. Okay,
(18:25):
So that would be the that would be the program
for your parents. And it's not at all unusual for
us to have the four to oh one K or
the pension or something like that with the guy who's
the one who needs the long term care. So he
doesn't qualify because he's got the money in his name,
plus he's got the pension. Now he doesn't qualify. Fine,
we go to circuit court. We do an action for
(18:46):
separate maintenance. Now we move the pain over. Now we
move the IRA, the four oh one k if he's
got one, we move that over to mom as well. Okay,
because Mom can have an unlimited amount of income. And
now Dad qualifies for the program stays at home, lifts
the burden from mom. See that's the that's the beauty
of the paper. It's our favorite program. Absolutely okay, So
(19:09):
but that's.
Speaker 4 (19:10):
What they need to doe, even for my dad, who
that would be a pretty big struggle.
Speaker 2 (19:16):
For Yeah, yeah, yeah, but but but he I mean,
you know, it's every life, a little rain must fall.
I mean, we need it needs to be done. I mean,
if you want to do it, the point is it's there,
it can be. It's Dad's competent so far right, mentally competent. Yeah, well,
(19:40):
now's the time to do it. Because you don't want
to wait till you after the stroke, because then you
can't do it. Okay, if you want to hang on,
the music means I need to get out. But we
can hang on if you have any other questions, Okay,
but but seriously, it's it's it's a duo. Okay. You've
been listening to the David Carrier Show on David Carrier
your family's personal attorney. Wellcome back to the David Carrier Show.
(20:04):
I'm David Carrier, your family's personal attorney. Now's the time,
give us a call. Six one, six, seven, some of
them four twenty four, twenty four. I just want to
wrap up with you know, Bob's question, Mom and Dad,
and you know, Dad has I guess at this point
some physical needs. Still mentally competent, I'm Dad, both competent,
(20:26):
but we can see down the road where Dad's going
to need some long term care because Mom is becoming
exhausted everything else taking care of Dad. Not that she's
not willing to do it, she is willing to do it,
and that's kind of the tragedy of the thing. Willing
to do it to the extent that she would impair
her own health. And having seen a lot of these,
(20:47):
what happens is the spouse, you know, as I say
in the ad, literally kills himself taking care of the
other one, keeping them out of the nursing home. But
when they succeed, where does the other one go boom
over to the nursing home because there's no one there
to kire. So if we can take care of mom
so she can take care of dad, and take care
of dad so mom doesn't have to do all of
the care herself, that's like a win all the way around.
(21:11):
Plus it's sixty percent cheaper than traditional nursing home. And
that's at home care. That's the PACE program program of
all inclusive care for the elderly. It's in Kent County
throughout Kent County, Muskegan. It used to be, I mean,
twenty years ago, these programs were few and far between.
(21:32):
The map has really filled in. There's a couple of
zip codes down in Saint Joe County that don't have it,
but pretty much everybody else does have the PACE. The
PACE is available, but unlike skilled nursing, if you want
to go to a traditional nursing home, they'll take all
your money, give you sixty bucks, but you can go
(21:52):
in right. The income is not a limit, and other
states do it differently, but this is Soule Michigan doesn't. However,
if you have more than twenty nine hundred and ten
dollars a month of income, pension and so security. Right,
then you're not going to qualify for the PACE program.
You've got too much money, too much income. Sorry. So
(22:12):
what we do, and we've been doing this for I
don't know seven eight years now, whatever it is, what
we'll do is we'll go to court. We'll go to
not probate court necessarily, but circuit court, and we'll say, hey,
I need an action for separate maintenance. Okay, this is
not a divorce, not a divorce. We're not getting divorced.
There is no divorce. Husband and wife, not a divorce. Okay,
(22:33):
don't tell me it's a divorce because it's not a divorce.
Divorces were like wrong, bad, stupid, horrible, terrible, and not
a good medicaid planning technique anyway, So don't do that.
That's not what we're talking about. What we're talking about
is rearranging the finances within a married couple. And the
good news is that the Supreme Court of the United
States has been very clear that you can do this
(22:55):
and you don't even have to explain why you're doing
it or what have you. It was not always the case.
When we've pioneered this technique, I don't know, like eight
years ago whatever. Every well, I mean, it's funny now,
I guess, but back then, right, no one had done it, right,
(23:15):
so this was new and different. And they accused us,
accused me, my firm of my lawyers, of being not
just wrong, but awful, terrible, horrible by moving people's assets around,
married couple's assets between one another, which is clearly allowed
by the law, but doing it and then getting the
(23:37):
qualification for the benefits for the one spouse so they
could actually stay at home and to lift the burden
from the other spouse using money that they had contributed
through their taxes. Like that's terrible, okay, fine, well, listen,
every circuit judge signed off on a grievance against my
(23:57):
firm and the attorney who actually did it, which you know,
you can see who the target was. Hello. And it
was three years later before the Court of Appeals finally said,
there's nothing wrong with what they're doing here, you know,
let my people go. And that was the That was
pretty much the end of it, except there was anyway,
pretty much the end of it. Let's just leave it,
(24:19):
leave it at that, And since then there have been
other decisions from the Court of Appeals that make it
extremely clear that doing this without explaining you don't have
to say, oh, I'm doing it for this reason, that reason.
They can't even ask. I mean, it's very very clear
that this is allowed. This is fine, there's no problem
with it. And what it has done is it has
(24:39):
made the PACE program available to lots of families who
otherwise would just go broke and then you'd have to
put your spouse in the nursing home. Right, well, we
don't want to be in the nursing home, no, thank you,
rather stay at home. It'd be nice if I got
some payback on the taxes I paid in so it
would cost sixty percent less and not kill mysel. That
(25:00):
would be kind of nice. And that's exactly what we're doing.
That's the solution for Bob, for Bob's mom and dad.
We've done a lot with the UAW people. So they
tend to have pension state employees because they have teachers,
because they have pension, right, and if you have that pension,
it's going to put you over when you add it
to the Social Security But generally speaking it's not one
(25:20):
hundred percent, but generally speaking, when we take the pension
out of the equation, that goes to the spouse, right,
that goes to the spouse, and now the individual who
needs the at home care will qualify. Okay. Really important
to understand that this is something that a lot of
people aren't going to talk about. It's like, oh, I'm
not comfortable with that. What are You're more comfortable with
(25:44):
your clients going broke, You're comfortable with that, but you're
not comfortable doing something that's been endorsed now, I mean, okay,
when we first started doing this, no it wasn't endorsed
by the Court of Appeals. No, there wasn't a clear
path to it. We just have to figure it out
and go for it, which we did and we were
vindicated and now there it is. But still people aren't
(26:05):
doing it. It's like a lot of other things anyway.
That's what's going on with the program of all inclusive
care for the elderly. It's our favorite program ever because
it does exactly what you want and it's sixty percent
less than traditional nursing room, so it's it's fiscally smart, conservative,
all the rest of that plus keeps you at home,
keeps the family together. What's not to like, I can't
(26:28):
think of the thing. Anyway, We've got Mark, Mark, Please, Mark.
I hope you're still on the line.
Speaker 5 (26:34):
There, Yeah, I'm here, good morning.
Speaker 2 (26:38):
Alrighty.
Speaker 5 (26:38):
Then I just got one quick question and there's that
is what happened to fall?
Speaker 2 (26:49):
What happened to fall?
Speaker 5 (26:51):
Yeah?
Speaker 2 (26:51):
Look and went pretty quick, didn't it. That's great the
snow outside.
Speaker 5 (27:02):
Now My question is a few weeks ago you were
discussing about I might have the wording wrong, but it's
like called up a third party continuing trust.
Speaker 2 (27:17):
Okay, yeah, yeah, yeah, that discretionary trust. Yeah, third yeah,
it's one of the words for I mean, look yeah,
instead of a self settled trust, it's a third party
settled discretionary trust. That's that's that you use third party
established trust.
Speaker 5 (27:35):
Basically encourage people to write all their trusts that way.
And my attorney did my trust when I brought it
up about leaving money to beneficiaries all like in a
you know, if I were to pass away that they
would get the money, you know, upon the settlement of
(27:58):
the trust, and you discourage that. So I was wondering
if you can write continue that discussion a little bit,
and you know, explain a little more why why you
feel that's the better way to go, and oh sure,
sure discouraged me from doing that. He said, if you
(28:19):
do that sort of thing, then you're going to end
up happen to have you know, you'll have to pay
somebody to manage your trust and you know, indefinitely.
Speaker 2 (28:31):
Basically, yeah, yeah, there's a lot of misconceptions about it.
That's one of them, for sure.
Speaker 5 (28:39):
Uh.
Speaker 2 (28:39):
The other ones are that your taxes are going to
be super high, that you can't actually access it, there
won't be any control on the on the part of
the beneficiary, et cetera, cetera. The good news is that
we've got the last segment. Okay, Mark, and hang on
through the last segment because I'm they're going to start
the music any any second here. But if you hang
(29:02):
on through through the commercials, I'll spend the whole last
segment answering that question because there's in my opinion, this
is my opinion, my professional opinion, whatever you want. And
we've done literally tens of thousands of these, you know,
because you know, individual clients have more than one kid,
so we've done lots and lots of them, and it
(29:25):
always works. And the supposed burdens just aren't there. It
might be one of those situations I'm just saying where
the unknown is scarier than once you actually figure out
what's going on, it's not so scary. But that might
be what's happening with the opinion that you received. But
(29:46):
I'll lay it all out for you in the next segment,
if that'd be okay, Okay, okay, okay, Mark, hang on
in case you have any questions. Okay, you're listening to
the David Carrier Shell. I'm David Carrier, your famili's per.
Speaker 1 (30:00):
Attorney, David's and working and taking your calls. Now. This
is the David Carrier Show.
Speaker 2 (30:08):
Welcome back to the David Carriers Show on David Carrier,
your family's personal attorney. When I was a freshman in college,
I went out on a date to see Chicago in concert. Right,
I had the flu and I went anyway, And boy
was that a mistake. Here we are this many years later,
and whenever I hear Chicago, the shame of that date
(30:31):
burns in my memory. Anyway, you didn't tune in for that.
So here's the here's the here's the problem with leaving
stuff to kids. Here's the problem with beneficiary designations, with
ladybird deeds, with all the rest of it. Yogi Berra
said it best. The problem with predictions is they're all
about the future. The problem with planning is it's about
(30:52):
the future and you don't know what's going to happen.
And what I see is this pollyanna ish, Oh, everything's
going to be just fine in the future. Like who
believes that? I mean, what experience are you using to
predict confidently to the extent of your life savings, to
your children's well being, to everything else? Why? What is it? What?
(31:17):
I mean, what in your experience justifies you in saying
that the future's got everything's going to be just rosy
and fine, My kids will be all and everything will
be oh h you know, everything will be wonderful. What nothing? Nothing?
You have no reason for thinking that life is going
to be one smooth path. Your life hasn't been that way, mind,
(31:38):
neither nobody's life is like that. Okay, and the inheritance. See,
this is what frustrates the hell out of me. I mean,
it really irritates the heck out of me, because when
people go to do a state planning, I mean, what
other legal thing did you ever do in your life
unless you got a speeding ticket and you paid it right,
People don't don't I don't get themselves involved in the
(32:02):
legal thing except for a state plan. That's the thing
for regular people, that's what they get involved in. And
there's so much great stuff you could do, but you
get blown off and it doesn't happen. And you've heard
me say this once or twice before, perhaps that middle class.
You know, the way the world is working, everything's so
(32:25):
much more expensive that to leave a legacy, a dollars
and cents legacy to your kids is more important now
than it ever has been, because it doesn't cost five
thousand dollars to go to college anymore. And a new
car or a used car that you're a beater that
you could get around in isn't a thousand dollars anymore.
Everything is way more expensive. You need to make your
(32:48):
money work, and by putting blinders on as to what
the future holds for your kids, it's just it's terrible, irresponsible, horrible,
And yet here we are perpetuating that you go to
the and it's like, oh, there's gonna be tough. Me
do okay, let me tell you how. Let me tell
you exactly how it's done. This is how we've been
(33:09):
doing it for I don't know, thirty years whatever it
is when you die. First of all, we pay the
bills because you got to pay the bills. So you
pay the bills, you know, expensive, last in litas, whatever
they are, and then we've got money left over. Now,
if you do a beneficiary designation, you do a lady
bird deed. If you do it, it's brain dead, it's
(33:30):
blunt force trauma. It's it's just give them the money. Yeah,
I don't care what's going on, nothing matters. Just give
them the money, send them a check. Now we're done,
which sounds great, right, Oh I avoided probate. Yeah great,
I'm so glad you avoided probate. You just delivered your
IRA into the hands of the bankruptcy court. You just
delivered your house proceeds into the hands of the credit
(33:55):
card company or the student loan people, or the ex
spouse or whatever. Okay, because instead of taking this seriously,
you just, oh, you put blinders on. And it's like,
I can understand why regular folks put blinders on. I mean,
we all want to believe the best thing about the
future and all the rest of it. But what the
(34:16):
heck of the what are the people who are actually
in the field, you know, who you might rely on.
I would suspect perhaps, just maybe possibly for having a
little bit different perspective because we've been down the road
once or twice or dozens hundreds dare I say thousands,
tens of thousands of times, because you see what actually happens,
(34:40):
and you don't pooh poo it, you don't dismiss it.
You take it seriously. That's what I call it, taking
it seriously. So I want everything to run through the trust. Now,
what the beneficiary, the individual beneficiary gets is not a
check because if they get a check or a beneficiary
designation on a ownership of a inherited ira or anything
(35:03):
else like that, that money see you later. It's subject
to their creditors. And you say, oh, my kids, you're
doing fine. Yeah, how about ten years from now? Are
they still doing fine? How about five years from now?
How about six months from now? How about when your
daughter in law has a stroke. How about when your
son in law gets in a car accident. How about
when your kids co sign your grandkids student loans, your
(35:23):
grand kid becomes a barista, right, and now they're coming
back after your kids for the money. I mean, you
don't have to do anything but keep your eyes open
and your ears open to understand that this is not
a safe environment. The world is not a safe place.
I get it. We're electing people apparently, Oh everything's free
(35:44):
and nothing's bad, and okay, all right, let the juveniles
vote for those people. Fine, fine, okay, let's let unseerious
people believe that the world works that way. But you
don't believe it works that way, and neither do I.
So here's what what we do. And I've got three
mantes son of a gun. Anyway, you do a trust. Okay,
(36:04):
the kid gets and now the money in the trust
is protected against their creditors and predators. But here's how
you set it up. Your trustee, your beneficiary is a trustee.
They're the ones who manage the trust. They're the ones
who can, if they want, withdraw the income. Okay, they
can withdraw the income. They can manage it. They can
(36:25):
put real estate in there and live in the real estate.
They can put a car in there and drive the car.
They can use the stuff that they bought with the
inheritance money. What they cannot do, cannot do is take
the principle out of the trust and give it back
to themselves. Because if they could do that, if they
could take the stuff in the trust out of the
trust and give it back to themselves, then a judge
(36:47):
could tell them to do that. And now I get
no asset protection. That's why I have one of the
siblings or some third party over there? Who is the
distribution trustee? Who if your kid wants to take the
stuff out of the trust, they can't do it themselves,
but that other trust de can. Now who is that
other trustee? Well we better trust them, right, because oh,
(37:10):
my kid's not in control. Wait a second, your kid
is how we write it. The kid gets to decide
who the other trustee is. Got to be independent quote
unquote independent, right, But your kid gets to decide who
the trustee is. If your kid gets to decide who
the trust de is, right, and the trustee doesn't distribute
(37:31):
the money to them, hmmm, I wonder how long they'll
be the trustee? Are you with me on this? Okay,
that's how you do it.
Speaker 4 (37:39):
Now.
Speaker 2 (37:39):
People say, oh, well, now you got to file a
separate tax return on the trust. Yes, you do. You
have to file a separate tax return. Oh boy, two
hundred fifty bucks. Oh, but all the income of the
trust is going to be way high taxed. No, it isn't. No,
it isn't because for the two hundred and fifty bucks
trust tax return, you're also doing what's called a K one,
like a ten ninety nine to the kid of the
(38:01):
money that the trust earned. You're not paying tax at
the trust rate of tax. You're paying at the individual
kids rate of tax. And when you set it up,
which you've done thousands of times, it works very slick,
very well, and protects the assets for the kids. The
worst is off the table. Your inheritance actually does the
work you expected your inheritance to do, and that's the deed.
(38:25):
Been listening to the David Carrier Show. I'm David Carrier,
your family's personal attorney.
Speaker 1 (38:34):
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, 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
(38:56):
visit Davidcarrier law dot com.
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 (00:20):
Welcome back to the David Carrier Show. I'm David Carrier,
your family's personal attorney, and you have found a place
where we talk about a state planning, elder law, real
estate and business law. So give us a call. Why
don't just six one six seven seven four twenty four
twenty four At six one six seven seven four twenty
four to twenty four. Here we question a comment or
(00:42):
concern about wills, trust probade, how we beat the high
cost of long term care, real estate and looking at
buy or sell the house? What have you? Now's the
time give us a call. Sixty one six seven seven
four twenty four twenty four. We've got Sewan on the line. Hello, Sean,
Welcome to the David Carrier Show. Hi, Hey, how can
I help Hi?
Speaker 3 (01:05):
In December, my father passed. In February, we got a
document saying that he had a trust and his wife
and four children are beneficiaris of the trust. It said that, okay,
dispersement would be after September thirty, the year after he passed,
which would have been in September thirty of this year.
(01:28):
None of us have seen any dispersement, and we're curious
as to who to contact regarding what's going on.
Speaker 2 (01:37):
Who's the trustee of the trust?
Speaker 3 (01:38):
John, his wife, our stepmother. And there's no there's no animas,
there's no We're all good. So nobody's accusing anybody anything.
Speaker 2 (01:49):
We just don't know, gotcha. But she would be the
one as the trustee. She's the one who's supposed to
give you an inventory and an accounting with regard to now,
did you get a whole copy of the trust? You
just get a piece of paper? Would you get We got.
Speaker 3 (02:04):
A full page document in February, and then in March
we got an inventory letter.
Speaker 2 (02:12):
That's okay.
Speaker 3 (02:14):
Thing we've seen about that.
Speaker 2 (02:17):
Well, it should it should say on the it should
say on that piece of paper that you the first
piece of paper you got. Anyway, it should say what
your entitlement is? You know, because there is okay, well
what is your entitlement? I mean, are you are you
getting so, I mean, is it a percentage ten.
Speaker 3 (02:39):
Of the of the balance will be split between the
four children. Uh, whatever income that generates goes to the
surviving wife when she passes, then the four children will
split whatever as weft. But the first dispersement was, well,
let me make schedule for September after septem.
Speaker 2 (03:00):
Number thirty, and you have an inventory, so you know
what that should be. Right, Yeah, I'll tell you. Usually
the problem here is there's no communication. You have no
idea what's going on. But it sounds like you know
exactly what's going on. It's just a matter of getting
out to do it.
Speaker 3 (03:18):
Yeah, and we are We're not. Nobody is like we
want the money, wants the money. We're just like, okay,
how does this happen? And you know it would be
awkward nod that we can't do it, but we want
to go pestering, you know, the set mom because we've
never talked to her about money or anything. And we don't
want to sound like we're there, but we just kind
would like to know who to Who are saying did
(03:41):
you write the check?
Speaker 4 (03:43):
Well?
Speaker 2 (03:44):
Right, well, you know, here's the deal. If there's an
elephant in the room. Ignoring the elephant doesn't make the
elephant go away, and pretty soon he starts doing his
business in the room, and then everything becomes unpleasant because
he didn't deal with the elephant in the room. So
that was there a There must have been a lawyer
attached to the invent. I mean, I'm guessing your stepmother
(04:07):
didn't do it all by yourself.
Speaker 3 (04:10):
Right. Looked at the last page and there they did
seem to be, uh, some law firm listed there. But
to me, I don't know any of this stuff, so
I didn't know. It was just like they just signed
off on if they wrote it. But that's all they did,
like you know, you pay us, we do that thing, No,
we're out or if ye again, don't know what, I
(04:31):
don't know.
Speaker 2 (04:33):
Yeah, so that would have been that That would have
been the beginning of the process, not the end. Okay.
And so we've checked the box. You got. You got
a copy of the trust that related to you. You
may not have received the full trust, but that's okay
because you got the part that relates to you. That's
what you're entitled to. Then you got an inventory again, excellent,
you got the inventory, and if the if the if
(04:56):
the trust says that you get ten percent of the
proceeds of them. Maybe there would be an accounting explaining
what stepmother's expenses were that would draw down the inventory,
if any you know, there'll be a formula in there,
some something, you know, to explain exactly how you would
reach what you get ten percent of. But you should
(05:18):
have that by now, right, this is the year following
the year of death, and I know December is kind
of you know, kind of pushing it, I guess, but
even still, you know, there should be there should be
some communication. And people are funny, you know, because on
the one hand, you got folks who are like, oh,
(05:41):
if you ask me directly, then you should deal with
the lawyers. But if you deal with the lawyers, then
they're like, oh, you should have asked me directly. I
could have answered it, you know. So if people go
back and forth on those I wouldn't I beg.
Speaker 4 (05:56):
Your pardon nothing, nothing, I'm sorry, Oh I.
Speaker 2 (06:00):
Thought you were talking. So the key here, the key
is I would reach out to the stepmother and say, hey,
you know, Barbara Carroll, Suzanne, whatever her name is. You know,
it has been about a year and we did get
the inventory and we did get the copy of the trust,
but I'm kind of thinking that we're getting to a
(06:21):
distribution time on the ten percent. Okay, you know, just
open the conversation. It's one of those mine fields, you
know what I mean, where people depending on who they
are and what their life history is and everything else,
and they may take it very easily or they may
take it very hard. And the thing with these is
(06:45):
people will tell you, oh, just put it this way,
or just say this, or just say that, and then
everything will be fine. That is not the case. It
doesn't really matter, Sean, to a large degree, it doesn't
matter what you say or how gently or commonly. Now,
if you say where's my money you rhymes with witch,
(07:06):
I can't believe you're cheating us out of arms, you know. Okay,
don't take that approach, bad approach, don't say that. But
you know, but you can be you know, sweet as
pie and very nice about it and they're very nice
about it and everybody's nice and it works out. Or
you can be sweetest pie about it and they're awful. Okay.
It's it's very difficult. It's very just so long as
(07:31):
you're kind of business like about it. You're you're nice
about it. You know, you're nice and constructive and stuff
like that, not vindictive or or bitter whatever else. You know,
you're just very nice about it. Matter of fact. Then
how they react is on them. And they might react
positively and they might react negatively. But for God's sakes,
(07:54):
don't be blamed if unless you go at somebody like
a jerk, right, and then if you're just being nice
and normal and stuff like that, if they react orly,
do not judge yourself later, Oh I should have said this,
or I should have done that, or there's no way
of knowing. Okay, I mean that's just that's just individual.
If you're being a good person, Okay, good people get
(08:17):
slammed all the time, and it's not it's not on them.
But at the same time, you don't want it to
go longer, then you've let it go. It seems to me,
I mean, this is not a bad time to start
bringing it up, because the other thing that happens is
if you don't mention it, then they don't think they
have to deal with it. Well, if you don't care,
(08:39):
I don't care. I My life is busy, I got
things going on. I don't want to deal with lawyers anyway.
Well you never you never mentioned it. You know. That's
another thing that you that you hear like, well, you
never mentioned it. Well okay, so now let's mention it
in a nice business like appreciative family, you know, kind
of way, no judgment or what have you. Just Hey,
(09:01):
you know, the trust did say, you know, twenty twenty five,
we kind of thought was the time of distribution. Okay,
So let's assume you have that conversation. It goes well,
it's like, oh, yeah, I thought they were taking care
of it, but they're not taking care of it. The
next thing you should get is a this is how
we would do it. Anyway we would make it. We
would send you a document that lays out the facts. Okay,
(09:26):
Dad was married to Susie, was had as much money,
and the revela, you know, all the facts. Each child
is entitled to a share of ten percent. That that
ten percent is ten thousand dollars a piece. And then
you sign off saying I agree to take ten thousand
as my share of the thing pursuing to the trust,
(09:48):
and Susie gets the rest and you know or whatever
in their conditions, right and there's an inventory and then
accounting and every and then you sign off on that.
There's no legal requirement you sign off on that, okay,
but if they're doing it correctly, you should get a
document like that that kind of sums everything up and says,
if I get my ten thousand dollars, I'm happy for now.
(10:11):
I understand that Susie dies, we get something else, but
right now I'm good to go. That should really be
the next step, okay, where everybody agrees on what's supposed
to happen next, and then you get your checks and
we're done with this phase of it. Okay, but I
would definitely raise the issue. I will thank you, okay, Yeah,
(10:34):
over the pumpkin pie. Well, no, no, no, don't do
it to me. Do it before or after, but don't
do it. Don't do it on the third Thursday. Don't
do that. You've been listening to the David Carrier Show.
I'm David Carrier, your family's personal attorney. Welcome back to
the David Carrier Show. I'm David Carrier, your family's personal attorney.
(10:58):
We've got Bob from Wyoming on the line. Hello, Bob,
Welcome to the David Carrier Show.
Speaker 4 (11:03):
Thanks David. Good morning. Hey, my wife and then clients
of yours and I appreciate, Yeah, we are, But my folks,
which is why I'm calling. My father is struggling pretty
(11:23):
badly and my mother is killing herself literally trying to
take care of him, and they both swear up and
down he is not going into long term care. I
don't see that lasting. I think there's not going to
be a choice there. My question is if my dad
(11:46):
does end up agreeing to go into long term care
and my mother agrees as well, are they going to
take pretty much everything they've got and then my mother
will be left with nothing after my father passes.
Speaker 2 (12:01):
Let's say, well that's pretty close, pretty close, But but
look this, this feels like a real soft pitch right
across the plate. Okay, because where where are your mom
and dad? If I could ask, are they live in
your neighborhood or okay? Yeah, yeah, fine, fine, good, good,
(12:24):
good good, perfect perfect? Okay. What's dad's income? I'm his
dad get a month, just ball, I don't need anything.
Speaker 3 (12:32):
Whatever.
Speaker 4 (12:33):
Pension would be couple thousand GM employee.
Speaker 2 (12:37):
Okay? And then do they have does he have four
to one k? As well? So he's got pension, he's
got hire, he's got so screwed, Okay, and it's just
dad who has.
Speaker 4 (12:49):
The They've got a paid off home anden Byron Center.
There's maybe one hundred thousand in the bank. And I'm
just concerned. They do have a trust through GM their
attorneys or something grew up, So I'm just template trust.
But I'm worried if my dad goes into long term
care that you know, the long term care facility will
(13:12):
sign onto the house, take all the income, and there
will be nothing left for my mother.
Speaker 2 (13:17):
Well, they're not gonna they're not gonna do well. They're
probably not going to do the house unless they don't
get paid. But they will take fifty thousand. Mom gets
fifty They'll take most of Dad's pension. The rest will
go to Mom. There's ways to it that'll get adjusted there.
But here's here's the here's the We did two of
these last week. Okay, so one of them, I'm gonna
(13:39):
say it's gonna sound a little weird, but it's it's
for us anyway. It's routine, Okay, it's not experimental, upheld
by the Court of Appeals, blah blah. I tell the
whole story on that. But your family's situation, Mom and
dad situation not at all unusual. Here's the problem. It's
not about going to long term care. It's about receiving
(14:03):
care in the home. Because the PACE program program of
All Inclusive Care for the Elderly, which is a Medicaid program,
you have to qualify for Medicaid to get help at home.
But now you'll get help at home and five days
a week they'll take you to the senior Center. Now
it's staffed by U of M Health, you know health
(14:25):
system people, so I know you of M. It's kind
of oh, who wants to go with those quacks? But
there you go, and it's all their meds, it's all
their pharmacy, it's durable medical equipment, it supplies, it's procedures everything.
No donut holes, no deductibles, no figuring this stuff out. Okay.
(14:45):
With the PACE program. The problem is probably and this
is routine with the GM guys, because you've got that pension,
you know, the Fidelity annuity that is the substitute for
the GM pension, and that puts them over the twenty
nine hundred and ten dollars a month of income that
they can have to qualify for the program. Okay, so Dad,
(15:10):
in all likelihood is not going to qualify for the
at home care where they come out to the house
five days a week, pick you up, take you to
the senior center, you know, breakfast, lunch, and a snack.
Mom gets to have a cup of tea and put
her feet up for a while, you know. And it
could be zero days a week, it could be five
days a week. It's up weekdays, it's up to it's
up to the individual situation. But the key is Dad's
(15:33):
not going to get it because he's got the GM pension,
which is kind of a bitter irony. Here he is
doing the good thing taking care of mom, and now
he doesn't qualify for the benefits he paid for because
he actually did too good a job taking care of
the family. So here's what we're going to do. Here's
what we can do. And like I said, we've done
(15:53):
this now hundreds of times, so it works every time
you do it. And that is we go to circuit court.
We go to King County Circuit Court and we say, hey, judge,
I got a married couple here and they want to
stay they're married, they want to stay married. They're gonna
stay married, that's the top priority. But they have assets
(16:14):
that they want to rearrange between the two of them.
And we can rearrange iras. We can rearrange pensions. Our
record is almost two million in iras move from one
spouse to the other. We can on the only pension,
it's not really a pension, but the only periodic payment
(16:35):
like that that we have trouble with is military retirement pay.
I can only move about forty five percent of that.
But we've done federal pension, state pension, local pension, private pension.
This is what mom and Dad have, right, And we
get the court order to move Dad's pension to mom.
And when we move Dad's pension to Mom, Dad's got
(16:56):
less than three thousand a month twenty nine to ten,
three thousand a month of Social Security coming in. Okay,
Now he qualifies Mom and Dad qualify for Dad to
receive care at home. Most of the care involved, you know,
it's personal hygiene, lighthouse keeping. During the COVID they did
grocery shopping, you know, whatever's necessary to keep Dad at home.
(17:20):
This is not a whoop off to the nursing home.
You go, no, No, this is mom gets dad's pension.
Mom keeps your own social security, Dad's social security, he
keeps it too, as long as he stays at home. Okay.
But what we're doing is not only enabling them to
stay at home right longer, but we're also setting up
(17:42):
in case in case, and it's rare one out of
twenty one out of ten times that someone actually needs
residential care. That's part of PACE also. Okay, most of
our clients. Ninety percent of our clients die at home
on PACE. It's five percent go to a skilled nursing facility.
(18:04):
The rest are being cared for at home because most
of the time you don't need all the facilities that
are available in a skilled nursing facility. You don't need that, right,
you could stay at home if you could get some help.
That's what the PACE program does for sixty percent less
than it costs to be in a nursing home. Okay,
(18:25):
So that would be the that would be the program
for your parents. And it's not at all unusual for
us to have the four to oh one K or
the pension or something like that with the guy who's
the one who needs the long term care. So he
doesn't qualify because he's got the money in his name,
plus he's got the pension. Now he doesn't qualify. Fine,
we go to circuit court. We do an action for
(18:46):
separate maintenance. Now we move the pain over. Now we
move the IRA, the four oh one k if he's
got one, we move that over to mom as well. Okay,
because Mom can have an unlimited amount of income. And
now Dad qualifies for the program stays at home, lifts
the burden from mom. See that's the that's the beauty
of the paper. It's our favorite program. Absolutely okay, So
(19:09):
but that's.
Speaker 4 (19:10):
What they need to doe, even for my dad, who
that would be a pretty big struggle.
Speaker 2 (19:16):
For Yeah, yeah, yeah, but but but he I mean,
you know, it's every life, a little rain must fall.
I mean, we need it needs to be done. I mean,
if you want to do it, the point is it's there,
it can be. It's Dad's competent so far right, mentally competent. Yeah, well,
(19:40):
now's the time to do it. Because you don't want
to wait till you after the stroke, because then you
can't do it. Okay, if you want to hang on,
the music means I need to get out. But we
can hang on if you have any other questions, Okay,
but but seriously, it's it's it's a duo. Okay. You've
been listening to the David Carrier Show on David Carrier
your family's personal attorney. Wellcome back to the David Carrier Show.
(20:04):
I'm David Carrier, your family's personal attorney. Now's the time,
give us a call. Six one, six, seven, some of
them four twenty four, twenty four. I just want to
wrap up with you know, Bob's question, Mom and Dad,
and you know, Dad has I guess at this point
some physical needs. Still mentally competent, I'm Dad, both competent,
(20:26):
but we can see down the road where Dad's going
to need some long term care because Mom is becoming
exhausted everything else taking care of Dad. Not that she's
not willing to do it, she is willing to do it,
and that's kind of the tragedy of the thing. Willing
to do it to the extent that she would impair
her own health. And having seen a lot of these,
(20:47):
what happens is the spouse, you know, as I say
in the ad, literally kills himself taking care of the
other one, keeping them out of the nursing home. But
when they succeed, where does the other one go boom
over to the nursing home because there's no one there
to kire. So if we can take care of mom
so she can take care of dad, and take care
of dad so mom doesn't have to do all of
the care herself, that's like a win all the way around.
(21:11):
Plus it's sixty percent cheaper than traditional nursing home. And
that's at home care. That's the PACE program program of
all inclusive care for the elderly. It's in Kent County
throughout Kent County, Muskegan. It used to be, I mean,
twenty years ago, these programs were few and far between.
(21:32):
The map has really filled in. There's a couple of
zip codes down in Saint Joe County that don't have it,
but pretty much everybody else does have the PACE. The
PACE is available, but unlike skilled nursing, if you want
to go to a traditional nursing home, they'll take all
your money, give you sixty bucks, but you can go
(21:52):
in right. The income is not a limit, and other
states do it differently, but this is Soule Michigan doesn't. However,
if you have more than twenty nine hundred and ten
dollars a month of income, pension and so security. Right,
then you're not going to qualify for the PACE program.
You've got too much money, too much income. Sorry. So
(22:12):
what we do, and we've been doing this for I
don't know seven eight years now, whatever it is, what
we'll do is we'll go to court. We'll go to
not probate court necessarily, but circuit court, and we'll say, hey,
I need an action for separate maintenance. Okay, this is
not a divorce, not a divorce. We're not getting divorced.
There is no divorce. Husband and wife, not a divorce. Okay,
(22:33):
don't tell me it's a divorce because it's not a divorce.
Divorces were like wrong, bad, stupid, horrible, terrible, and not
a good medicaid planning technique anyway, So don't do that.
That's not what we're talking about. What we're talking about
is rearranging the finances within a married couple. And the
good news is that the Supreme Court of the United
States has been very clear that you can do this
(22:55):
and you don't even have to explain why you're doing
it or what have you. It was not always the case.
When we've pioneered this technique, I don't know, like eight
years ago whatever. Every well, I mean, it's funny now,
I guess, but back then, right, no one had done it, right,
(23:15):
so this was new and different. And they accused us,
accused me, my firm of my lawyers, of being not
just wrong, but awful, terrible, horrible by moving people's assets around,
married couple's assets between one another, which is clearly allowed
by the law, but doing it and then getting the
(23:37):
qualification for the benefits for the one spouse so they
could actually stay at home and to lift the burden
from the other spouse using money that they had contributed
through their taxes. Like that's terrible, okay, fine, well, listen,
every circuit judge signed off on a grievance against my
(23:57):
firm and the attorney who actually did it, which you know,
you can see who the target was. Hello. And it
was three years later before the Court of Appeals finally said,
there's nothing wrong with what they're doing here, you know,
let my people go. And that was the That was
pretty much the end of it, except there was anyway,
pretty much the end of it. Let's just leave it,
(24:19):
leave it at that, And since then there have been
other decisions from the Court of Appeals that make it
extremely clear that doing this without explaining you don't have
to say, oh, I'm doing it for this reason, that reason.
They can't even ask. I mean, it's very very clear
that this is allowed. This is fine, there's no problem
with it. And what it has done is it has
(24:39):
made the PACE program available to lots of families who
otherwise would just go broke and then you'd have to
put your spouse in the nursing home. Right, well, we
don't want to be in the nursing home, no, thank you,
rather stay at home. It'd be nice if I got
some payback on the taxes I paid in so it
would cost sixty percent less and not kill mysel. That
(25:00):
would be kind of nice. And that's exactly what we're doing.
That's the solution for Bob, for Bob's mom and dad.
We've done a lot with the UAW people. So they
tend to have pension state employees because they have teachers,
because they have pension, right, and if you have that pension,
it's going to put you over when you add it
to the Social Security But generally speaking it's not one
(25:20):
hundred percent, but generally speaking, when we take the pension
out of the equation, that goes to the spouse, right,
that goes to the spouse, and now the individual who
needs the at home care will qualify. Okay. Really important
to understand that this is something that a lot of
people aren't going to talk about. It's like, oh, I'm
not comfortable with that. What are You're more comfortable with
(25:44):
your clients going broke, You're comfortable with that, but you're
not comfortable doing something that's been endorsed now, I mean, okay,
when we first started doing this, no it wasn't endorsed
by the Court of Appeals. No, there wasn't a clear
path to it. We just have to figure it out
and go for it, which we did and we were
vindicated and now there it is. But still people aren't
(26:05):
doing it. It's like a lot of other things anyway.
That's what's going on with the program of all inclusive
care for the elderly. It's our favorite program ever because
it does exactly what you want and it's sixty percent
less than traditional nursing room, so it's it's fiscally smart, conservative,
all the rest of that plus keeps you at home,
keeps the family together. What's not to like, I can't
(26:28):
think of the thing. Anyway, We've got Mark, Mark, Please, Mark.
I hope you're still on the line.
Speaker 5 (26:34):
There, Yeah, I'm here, good morning.
Speaker 2 (26:38):
Alrighty.
Speaker 5 (26:38):
Then I just got one quick question and there's that
is what happened to fall?
Speaker 2 (26:49):
What happened to fall?
Speaker 5 (26:51):
Yeah?
Speaker 2 (26:51):
Look and went pretty quick, didn't it. That's great the
snow outside.
Speaker 5 (27:02):
Now My question is a few weeks ago you were
discussing about I might have the wording wrong, but it's
like called up a third party continuing trust.
Speaker 2 (27:17):
Okay, yeah, yeah, yeah, that discretionary trust. Yeah, third yeah,
it's one of the words for I mean, look yeah,
instead of a self settled trust, it's a third party
settled discretionary trust. That's that's that you use third party
established trust.
Speaker 5 (27:35):
Basically encourage people to write all their trusts that way.
And my attorney did my trust when I brought it
up about leaving money to beneficiaries all like in a
you know, if I were to pass away that they
would get the money, you know, upon the settlement of
(27:58):
the trust, and you discourage that. So I was wondering
if you can write continue that discussion a little bit,
and you know, explain a little more why why you
feel that's the better way to go, and oh sure,
sure discouraged me from doing that. He said, if you
(28:19):
do that sort of thing, then you're going to end
up happen to have you know, you'll have to pay
somebody to manage your trust and you know, indefinitely.
Speaker 2 (28:31):
Basically, yeah, yeah, there's a lot of misconceptions about it.
That's one of them, for sure.
Speaker 5 (28:39):
Uh.
Speaker 2 (28:39):
The other ones are that your taxes are going to
be super high, that you can't actually access it, there
won't be any control on the on the part of
the beneficiary, et cetera, cetera. The good news is that
we've got the last segment. Okay, Mark, and hang on
through the last segment because I'm they're going to start
the music any any second here. But if you hang
(29:02):
on through through the commercials, I'll spend the whole last
segment answering that question because there's in my opinion, this
is my opinion, my professional opinion, whatever you want. And
we've done literally tens of thousands of these, you know,
because you know, individual clients have more than one kid,
so we've done lots and lots of them, and it
(29:25):
always works. And the supposed burdens just aren't there. It
might be one of those situations I'm just saying where
the unknown is scarier than once you actually figure out
what's going on, it's not so scary. But that might
be what's happening with the opinion that you received. But
(29:46):
I'll lay it all out for you in the next segment,
if that'd be okay, Okay, okay, okay, Mark, hang on
in case you have any questions. Okay, you're listening to
the David Carrier Shell. I'm David Carrier, your famili's per.
Speaker 1 (30:00):
Attorney, David's and working and taking your calls. Now. This
is the David Carrier Show.
Speaker 2 (30:08):
Welcome back to the David Carriers Show on David Carrier,
your family's personal attorney. When I was a freshman in college,
I went out on a date to see Chicago in concert. Right,
I had the flu and I went anyway, And boy
was that a mistake. Here we are this many years later,
and whenever I hear Chicago, the shame of that date
(30:31):
burns in my memory. Anyway, you didn't tune in for that.
So here's the here's the here's the problem with leaving
stuff to kids. Here's the problem with beneficiary designations, with
ladybird deeds, with all the rest of it. Yogi Berra
said it best. The problem with predictions is they're all
about the future. The problem with planning is it's about
(30:52):
the future and you don't know what's going to happen.
And what I see is this pollyanna ish, Oh, everything's
going to be just fine in the future. Like who
believes that? I mean, what experience are you using to
predict confidently to the extent of your life savings, to
your children's well being, to everything else? Why? What is it? What?
(31:17):
I mean, what in your experience justifies you in saying
that the future's got everything's going to be just rosy
and fine, My kids will be all and everything will
be oh h you know, everything will be wonderful. What nothing? Nothing?
You have no reason for thinking that life is going
to be one smooth path. Your life hasn't been that way, mind,
(31:38):
neither nobody's life is like that. Okay, and the inheritance. See,
this is what frustrates the hell out of me. I mean,
it really irritates the heck out of me, because when
people go to do a state planning, I mean, what
other legal thing did you ever do in your life
unless you got a speeding ticket and you paid it right,
People don't don't I don't get themselves involved in the
(32:02):
legal thing except for a state plan. That's the thing
for regular people, that's what they get involved in. And
there's so much great stuff you could do, but you
get blown off and it doesn't happen. And you've heard
me say this once or twice before, perhaps that middle class.
You know, the way the world is working, everything's so
(32:25):
much more expensive that to leave a legacy, a dollars
and cents legacy to your kids is more important now
than it ever has been, because it doesn't cost five
thousand dollars to go to college anymore. And a new
car or a used car that you're a beater that
you could get around in isn't a thousand dollars anymore.
Everything is way more expensive. You need to make your
(32:48):
money work, and by putting blinders on as to what
the future holds for your kids, it's just it's terrible, irresponsible, horrible,
And yet here we are perpetuating that you go to
the and it's like, oh, there's gonna be tough. Me
do okay, let me tell you how. Let me tell
you exactly how it's done. This is how we've been
(33:09):
doing it for I don't know, thirty years whatever it
is when you die. First of all, we pay the
bills because you got to pay the bills. So you
pay the bills, you know, expensive, last in litas, whatever
they are, and then we've got money left over. Now,
if you do a beneficiary designation, you do a lady
bird deed. If you do it, it's brain dead, it's
(33:30):
blunt force trauma. It's it's just give them the money. Yeah,
I don't care what's going on, nothing matters. Just give
them the money, send them a check. Now we're done,
which sounds great, right, Oh I avoided probate. Yeah great,
I'm so glad you avoided probate. You just delivered your
IRA into the hands of the bankruptcy court. You just
delivered your house proceeds into the hands of the credit
(33:55):
card company or the student loan people, or the ex
spouse or whatever. Okay, because instead of taking this seriously,
you just, oh, you put blinders on. And it's like,
I can understand why regular folks put blinders on. I mean,
we all want to believe the best thing about the
future and all the rest of it. But what the
(34:16):
heck of the what are the people who are actually
in the field, you know, who you might rely on.
I would suspect perhaps, just maybe possibly for having a
little bit different perspective because we've been down the road
once or twice or dozens hundreds dare I say thousands,
tens of thousands of times, because you see what actually happens,
(34:40):
and you don't pooh poo it, you don't dismiss it.
You take it seriously. That's what I call it, taking
it seriously. So I want everything to run through the trust. Now,
what the beneficiary, the individual beneficiary gets is not a
check because if they get a check or a beneficiary
designation on a ownership of a inherited ira or anything
(35:03):
else like that, that money see you later. It's subject
to their creditors. And you say, oh, my kids, you're
doing fine. Yeah, how about ten years from now? Are
they still doing fine? How about five years from now?
How about six months from now? How about when your
daughter in law has a stroke. How about when your
son in law gets in a car accident. How about
when your kids co sign your grandkids student loans, your
(35:23):
grand kid becomes a barista, right, and now they're coming
back after your kids for the money. I mean, you
don't have to do anything but keep your eyes open
and your ears open to understand that this is not
a safe environment. The world is not a safe place.
I get it. We're electing people apparently, Oh everything's free
(35:44):
and nothing's bad, and okay, all right, let the juveniles
vote for those people. Fine, fine, okay, let's let unseerious
people believe that the world works that way. But you
don't believe it works that way, and neither do I.
So here's what what we do. And I've got three
mantes son of a gun. Anyway, you do a trust. Okay,
(36:04):
the kid gets and now the money in the trust
is protected against their creditors and predators. But here's how
you set it up. Your trustee, your beneficiary is a trustee.
They're the ones who manage the trust. They're the ones
who can, if they want, withdraw the income. Okay, they
can withdraw the income. They can manage it. They can
(36:25):
put real estate in there and live in the real estate.
They can put a car in there and drive the car.
They can use the stuff that they bought with the
inheritance money. What they cannot do, cannot do is take
the principle out of the trust and give it back
to themselves. Because if they could do that, if they
could take the stuff in the trust out of the
trust and give it back to themselves, then a judge
(36:47):
could tell them to do that. And now I get
no asset protection. That's why I have one of the
siblings or some third party over there? Who is the
distribution trustee? Who if your kid wants to take the
stuff out of the trust, they can't do it themselves,
but that other trust de can. Now who is that
other trustee? Well we better trust them, right, because oh,
(37:10):
my kid's not in control. Wait a second, your kid
is how we write it. The kid gets to decide
who the other trustee is. Got to be independent quote
unquote independent, right, But your kid gets to decide who
the trustee is. If your kid gets to decide who
the trust de is, right, and the trustee doesn't distribute
(37:31):
the money to them, hmmm, I wonder how long they'll
be the trustee? Are you with me on this? Okay,
that's how you do it.
Speaker 4 (37:39):
Now.
Speaker 2 (37:39):
People say, oh, well, now you got to file a
separate tax return on the trust. Yes, you do. You
have to file a separate tax return. Oh boy, two
hundred fifty bucks. Oh, but all the income of the
trust is going to be way high taxed. No, it isn't. No,
it isn't because for the two hundred and fifty bucks
trust tax return, you're also doing what's called a K one,
like a ten ninety nine to the kid of the
(38:01):
money that the trust earned. You're not paying tax at
the trust rate of tax. You're paying at the individual
kids rate of tax. And when you set it up,
which you've done thousands of times, it works very slick,
very well, and protects the assets for the kids. The
worst is off the table. Your inheritance actually does the
work you expected your inheritance to do, and that's the deed.
(38:25):
Been listening to the David Carrier Show. I'm David Carrier,
your family's personal attorney.
Speaker 1 (38:34):
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, 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
(38:56):
visit Davidcarrier law dot com.
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