Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:13):
He served at the Pentagon as an army jack. 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 (00:34):
Hello, and welcome to the David Carrier Show. I'm David Carrier,
your family's personal attorney, and you have found a place
where we talk about what retirement law? What is retirement
law anyway? Well it's a brand new category we just
made up. Okay, so ditch that elder law stuff. Forget
about estate planning. I wish I could, but no, it's
(00:57):
all about you know. Here's the thing. You know, who
plans their a state? You do? You know who's thinking
about the future. You are. You weren't thinking about it
when you had little kids. You weren't thinking about it
back in the day, very few. But when those footsteps
start catching up to you. Oh no, you know, when
(01:19):
that grim reaper is knocking on your door, that's when
you start thinking about this stuff. Well, okay, better late
than never. Sixty plus that's us right. Retirees, people who
retired people wish we retired, people who planned to retire someday,
people who know people who retired. That's why I were
calling it retirement long Why because you're not dead yet.
(01:40):
It's not dead law. That's what a state is, you know,
that's your state. Your state is the leftovers when you're dead,
which is fine. Let's we got to figure out something
to do with those leftovers, right. Ever since people started
making stone tools, you know, back in the well in
the Neolithic age, I guess it was NAP's flints, you
know what, You took flint and you fashioned it into arrowheads.
(02:03):
People have accumulated stuff, and then something have to happen
to that stuff when you weren't around anymore, when you
were what pushing up daisies. Let's be euphemistic about it. Huh,
you're pushing up daisas Yeah, what to your grand reward? Anyway?
The point is most of state planning is all about
what happens to the stuff, the leftover stuff when I'm dead.
(02:23):
But check the mirror. You're probably not dead yet. If
you're listening to me now right twenty four seven, three
sixty five, if this show is on constantly, well you're
either in the good place or the bad places. That
depends on your reaction to the show, I guess. But
if you only hear it intermittently, you know, like when
(02:47):
you're listening to it right now, then probably you're still
you're still on this side of the Great Divide, and
so you're still alive. That would be my guess. Yeah,
I do have it reliably that for the worst defenders. Yeah,
you get a lot of the Davy Carrier show anyway
(03:08):
in the bad place, I mean anyway, because if you're
in a good place, you don't need to hear it,
right because you already did the good thing. Anyway, Long
story short, most people don't plan to the extent that
they plan at all. They're planning for leftovers after death.
The problem is it used to you know, and you
can understand that, right because that used to be the
(03:31):
problem back in the day. What was the problem. The
problem was I got stuff, I'm gonna die. I need
somebody else to get my stuff, so everybody doesn't fight
about it, curse my name, you know. I wish I
had died with nothing. And because now it's such a huge,
a huge fruit fraud, it's just huge hassle, people killing
themselves over the stuff, and I didn't do a good plan, right.
(03:53):
That is, that is literally the number one reason people
still plan, right is because you don't want to be reminded, remembered.
You don't want to be remembered as the pathetic jerk
who split up your family because you're foolish enough just
to throw everything on the sidewalk and let them fight
over it. Okay, that's a bad, bad plan, not a
(04:15):
good plan. So how do we plan ahead? Well, that's
the natural thing, right, We're going to plan for when
we're dead. And that's hard enough to confront anyway. On
my website, I say that ninety six percent of estate
plans fail, and there's a way to different ways of
thinking about that, Right, it's a provocative statement. I get that.
Well if you consider the fact that those people's plan
(04:36):
is to not plan at all, not plan at all,
seventy five percent of people I just saw the survey,
and you know, surveys are surveys. You believe them, you
don't believe them. But seventy five percent is something like
that of people say oh, it's really important to have
a will, and half of the people say that they've
got one. I think they're lying. I don't think they're
(04:57):
telling me the truth. I don't think it's that many
peop people. I don't think it's that larger percentage of
folks who actually have a plan. I think most people.
And I'm not in the ninety six. I'm not even
counting those people. But look at in every every military
organization I've ever been part of, and there were a few. Uh,
(05:18):
the emphasis failing to plan is planning to fail. Okay,
well that's a that's a failure if you haven't planned
your failing. And there's seventy percent of folks right away,
and then what about the rest of the people who are,
you know, doing something? Oh, I got the will, I
did something, got the will from the library. Yeah that's great.
I went to a dinner and I got a thousand
(05:40):
dollars will at the dinner, you know. And oh and
a whole a bunch of exotic investments that are going
to be really, really good. Okay, you know whatever you're into,
buy and buy me. But the point is that of
the people who actually do something, most of it, the
(06:00):
last majority of it is is not good. That's just
a and and the reason I'm kind of on this
jag today, on this bent on this going down this
path is because oh, last week we had a few
people came in who had some sort of planning right
(06:20):
and did it when the kids were little, and now
the financial situation is very different than when the kids
were little, or maybe it's not so different, or maybe
they just did one a year or so ago. You know,
the the went to the you know, went to the uh,
the steakhouse sales pitch for annuities and wound up buying
(06:40):
a trust for a thousand dollars or whatever. So that's
what I'm talking about today. What I'm talking about is
number one. Everybody focuses on death. That that death. So
if you do a will, it's a death plan. I
know a fella he's the sort of the the go
to guy for a large estate planning firm, not in
(07:03):
Michigan on the east coast, Okay. So he's got lots
and lots of clients, and they're all fairly well to
do because they're in a coastal city, put it that way.
And the people who come to him are our clients
of this fairly high end financial advisor of thinking and
(07:27):
ninety percent of what he does his wills, which really,
you know, it's like really really, now you're gonna serve
some people. You're gonna serve a population that is hungry, hungry,
has needs, right, they have needs, So you're gonna bring
them twinkies. They got nothing against twinkies, But twinkies are
(07:50):
not the basis of a good nutritional plan. Okay, but
here you got something to eat. It fills you up.
Eat enough twinkies, I guess it fills you up what
you need. It'll rot your teeth out, it'll screw with
your metabolism and the rest of it, and it won't
work anyway. But that's what they're doing. It's like like,
here have a will based plan. Here have a twinkie.
(08:13):
Oh you're still hungry. Oh have a ho ho then,
or maybe a ring dang or a devil dog or something,
you know what I mean. It's like, it's unbelievable that
this sort of things. And that's just one example. The
other thing with folks that came in the office, and
it's like one of them, I have to tell you,
one of them, a couple of them. Actually, really, we're
(08:33):
very well aware, faithful listeners, very well aware of the
deficiencies in their program, that the thing that they had done.
But you know, people like especially attorneysh like you say
ninety six percent of plans fail. Well, because failing to
plan is planning to fail. That's a failure right there.
Or you put your kids' names on accounts or put
(08:56):
them on the house and you think that's a plan
guarantee failure, failure in the sense of what was your
goal here? Was the idea I need to get something
to the kids? Was the idea to do it at
the lowest expense that retained the most control? What were
your criteria for success? And it seems to me that
the ninety six percent failure rate comes from a not
(09:20):
very ambitious, not very ambitious intention of planning, right, I mean,
you're not trying to do the best. You're just trying
to kind of get by and not screw everything up,
so people curse your name. Right. It doesn't work then
because because you didn't plan, you know, and it winds
(09:40):
up being much more expensive than it should be, it
winds up being devastating to your surviving spouse, all that
sort of all that kind of thing very bad. So
that's why we call it retirement law. Just to refocus
things away from estate planning. You're a state being the
stuff that's left over when you're dead, left over when
you're dead. We don't want we need to do that.
(10:02):
Of course we need to do that. Hopefully there will
be leftovers. We expect that there will be. We plan
for there to be leftovers. Well, let's let's add a
little intelligence to that. But you're never gonna get there
unless you get there, and you're not gonna get there
doing things the way you're doing them. This is my ship,
the finger part of the show. Anyway, give us a
call away, don't just six one six seven seven four
(10:24):
twenty four twenty four. That's six one six seven seven
four twenty four twenty four. I'm David Carrier. Your family's
retirement law is specialists.
Speaker 3 (10:34):
Bed wed is a wed no a bad bad man?
The bands A bed bed bed is a wein no
A bed be the band I went away the bed
bad man the bands I win a well a bed
bed bed when the bird is a wed no we
the bedda don't you now the bad? Well everybody knows
(10:54):
and the bed is a wed no bed.
Speaker 4 (11:02):
That everybody head an look out the USA.
Speaker 2 (11:08):
Then everybody p.
Speaker 1 (11:09):
Sir, anyways promoting so caring Now at seven seven twenty four,
twenty four.
Speaker 2 (11:15):
This is the David Carrier Show sent us to we
welcome back to the David Carrier Show. I'm David Carrier,
your family's personal attorney. I promise that at the next segment,
the very next segment, the one after this one, not
this one, but the one after this one, we'll be
talking about the PACE program. I got a number of
emails last week saying, hey, I was getting out of
(11:37):
the car at church and missed the the whole deal
with PACE program of all inclusive care for the elderly.
So let's go over that one again, shall we? Yes,
we shall, yes, we absolutely shall. Give us a call.
Why don't you six one six seven seven four twenty
four twenty four. That's six one six seven seven four
(11:58):
twenty four twenty four. What could it hurt? Could it hurt?
I don't know. I don't know, But anyway, give it
a try. Find out that it's really quite painless to
get your question, comment or concern, question, comment or concern
on the air. I promise I won't make fun of
you if you call, But if you don't call, then
I definitely will make fun of you, and that will
be painful for both of us. So let's not do
(12:20):
Let's not do that. Let's not go down that path,
shall we not? Okay, we shall not? Six one, six
seven of them four twenty four, twenty four. That's the
number to call. Now, let's get back to it. Why
do people plan their estates because they don't want to
be humiliated when they're dead, That's really it. That is
the number one reason. The survey says it's a private survey.
(12:40):
It's not I'm not even supposed to have seen it,
but but that we have vase of getting information anyway,
that's number one. It's it's more important, right that you
not look like a total chump when you're dead than
to actually get stuff to your kids, because getting stuff
to your kids is number two reason why people play
(13:02):
in their estates. Okay, So if you're wondering, gee, I
wouldn't want to, you know, I wouldn't want my entire life.
I wouldn't want the exclamation point on the end or
the period on the end of my life to be
a stain. I'd like it to be something positive. Well,
that you're you're right along with most with most folks. Okay,
(13:26):
we've got Steve on the line. Hello Steve, welcome to
the David Carrier Show.
Speaker 4 (13:31):
Good morning, and thank you for taking the call.
Speaker 2 (13:33):
Sir, you bet you okay, well sure this is what no, No,
let's rock around for an hour or two.
Speaker 4 (13:47):
Well, I'm trying to get some information, trying to establish
the legal distribution of a property that was held by
my brother. He passed about ten years ago and he
did not have a wi so according to Michigan law,
and everything is distributed to his wife at the time. Okay,
(14:07):
well she passed.
Speaker 2 (14:09):
Well, well did he have did he have kids that well?
Hang on, hang on? Did he have kids as well?
Speaker 4 (14:15):
He had one? They have children he had he had
a child from a previous marriage, and she had a
couple from a previous marriage. They did not have anything
from between them.
Speaker 2 (14:28):
Okay, so right off the bat, let me let me
correct something. Uh, And what's the depending on what the
value of the estate is the surviving spouse, when they
have children that are not shared children, it's a lower
level than if they have children that are children. Anyway,
it doesn't all go to the surviving It doesn't automatically
(14:49):
go to the surviving spouse. There's an amount that does
go to the surviving spouse, but then the surviving spouse
splits it with the and it's a lower amount. If
you've got kids who aren't kids of the surviv a spouse,
you split it with the you split it with the kids. Well,
so what's the value of the property.
Speaker 4 (15:07):
Well, I understand that, but you know, as I said,
this happened about ten years ten years ago, and it
was all distributed to her because the value was like
just over one hundred thousand dollars.
Speaker 2 (15:19):
Okay, all right, yep.
Speaker 4 (15:20):
Ye okay, okay, okay, But here's here's the thing. The
important piece is that he was a owner, along with
the fete, with the siblings of some property in another state,
and she never had that that we'll call it a
deed into her names. Okay. So what we're trying to
(15:46):
find out right now is that since she's passed, if
if that what what? What's basically what's going to happen?
How do we determine who would then receive that that property.
Let's say, if she did, you have a will O, well, okay,
(16:08):
let me ask this question. Would would the list of
property have to have to include this specific piece of
it within his probate folence.
Speaker 2 (16:22):
Well, let me ask you one other question. Do you
have a deed uh handy that deeds the property? I
assume it's to you and your siblings? Right? Is that right?
Speaker 4 (16:32):
Correct?
Speaker 3 (16:32):
Yes?
Speaker 2 (16:33):
Like from grandparents or something correct? And I'm also guessing
that they didn't do it as joint tenants with rights
or survivor. Which is why we're still worried about this issue.
Speaker 3 (16:46):
Is that.
Speaker 4 (16:47):
I would have to say yes, even though I would
have to admit I don't totally understand that question.
Speaker 2 (16:53):
But okay, but the deed that when when you guys
got the property, did you get it from Grandpa's a
state or did Grandpa died it over to you?
Speaker 4 (17:03):
How?
Speaker 2 (17:03):
How exactly did that happen? Did you get how did
the siblings get the property?
Speaker 4 (17:09):
That came through my It was from the grandparents, and
it came through it was on my mom's side of
the family.
Speaker 2 (17:20):
Okay, okay, And did it go through probated Grandpa's estate?
Speaker 4 (17:25):
Well, yeah, it probated grand grand Grandpa's estate because she
also it was my grandmother. She passed and she did
not have a will either, so and then my mom
had already passed, so that poorsha that went through to
the children.
Speaker 2 (17:44):
Okay, okay, and then and that came out of probate court, right,
so yeah, so probably okay, Okay, good good. It's all
track and I'm just doing a little bit of backfilling,
is what I'm doing, Okay, because depending on how these
things happened so so far, it all tracks that your
brother had a tenants in common what we call tenants
(18:08):
in common interest in the grandparents' property, okay, and then
it should have been probated, should have been probated ten
years ago when the rest of the property was probated.
Now the question is what's the value. What is the
value of his portion of that property?
Speaker 4 (18:31):
Well, in rough numbers, yeah, just roughly twenty.
Speaker 2 (18:39):
Okay. So again we're not even reaching the threshold where
we have to split it with the kids. So it
would all go to his spouse. It all go to
his wife at the time, which means that it would
all go to her kids when she died. Okay, Okay,
(19:00):
I tell you what. They're about to start the music,
So if you want to hang on through the news
and let's just let's just recap this whole the whole
tale if you don't mind, okay, we'll just make sure. Okay,
So we're doing surfer music today, just to we're counter programming,
is what we're doing. You know, if you look outside
(19:21):
and it's you know, twenty seven degrees or less, as
it has been for quite a while, we're thinking that
the you know a little bit of beach boys or
whoever is not uncalled for. Oh, there we are. You've
been listening to the David Carrier Show. I'm David Carrier,
your family's retirement law specialist, which means nothing other than
(19:44):
I'm calling myself that full disclosure. There's a place call.
Speaker 1 (20:03):
David's got the how too you're looking for just call
seven seven four twenty four. And this says, but David
Carrier Show.
Speaker 2 (20:13):
We welcome back to the David Carrier Show. I'm David Carrier,
your family's personal attorney. Not don Ho. Although we had
some physical resemblances there, you know, not not too dissimilar anyway.
Six one six seven seven four twenty four twenty four.
That's sixty one six seven seven four twenty four twenty four.
Steve called that number. You can too, now, Steve, let's
(20:36):
kind of recap where where we're at on this thing?
Your dad, I believe it was your dad years ago,
had no your brother excuse me, it was your brother.
Your brother years ago was alive and married a woman
who had kids of her own when he had kids
(20:57):
of his own, so it was a second go around
for both of them. Guessing okay, And when he died
he owned property the house that they lived in. I
guess he owned the house and she got it in probate. Now,
at the same time, there was an ancestral piece of
property that your dad had shared interest in and interest
(21:20):
shared with you and the other siblings. Am I tracking
so far?
Speaker 4 (21:25):
Well, it was the grand period.
Speaker 2 (21:29):
It was the grandparents, which would have gone to which
would have gone to your mom, but your mom died,
So you guys.
Speaker 4 (21:34):
Got it correct?
Speaker 2 (21:37):
Okay, So all right? Got it? So now the question,
But apparently grandmother's estate was not probated or this piece
of property at least wasn't probated in your brother's estate,
So that so that when he because it wasn't probated
(22:00):
at his why wasn't it probated anyway? I mean, you
must have known that grandma had died and Mom had
already died, well, just out of curiosity, just an overlook oversight.
Speaker 4 (22:10):
No, well, it's just to make sure here the grand
appearance property was was probated because she was intested as well.
And then since my mom had passed, it came to
the children, so we're all on the on the certificate,
so to speak. And then when he passed, he did
not have a will either.
Speaker 2 (22:31):
So yeah, yeah, but but but grandma had died. But
mom and grandma died before brother died, right before your
brother died, so he knew that he owned the property
from grandma. He did own the he owned the property
at his at his death, he owned the property. But
why wasn't the why wasn't his share of that property
(22:52):
probated in his estate? I guess that'd be my question.
Speaker 4 (22:56):
Okay, well, my question is we don't know that we
don't have a listing of all the pieces that were probated.
That was actually one of my questions.
Speaker 2 (23:05):
Okay, oh, that need to be.
Speaker 4 (23:08):
Explicitly on the list of what's being probated in order
to help unra.
Speaker 2 (23:17):
Yes, yeah, it has to be part of the inventory.
So what county did he die in? What county was
to probate? Was your brother's probate in which county was
your brother's probate, So that's not a big deal. So
we just go to Miskegan, We get the record, we
find out what was on the inventory. If brothers share
(23:37):
of the real estate was on the inventory, well, and
there should have been a deed out of the estate recorded,
right A A probate deed, a fiduciary deed should have
been recorded in the county in which the real estate
is exists, right is that is the real estate also
(23:58):
in Miskegan. Okay, Well, anyway, you'd still get the order
distributing the property, and that should have been that deed
should have been recorded in whatever county the property exists.
But maybe it didn't happen. So here are the possibilities.
It was listed on the inventory and it was deeded out,
(24:21):
and the deed was recorded, and so a title search
of the property would reveal the deed. That's the best case.
The second problem possibility is that it was listed on
the inventory and the probated state it was deed it out,
but the deed was not recorded, and now we have
to get another deed. The third possibility is it was
(24:44):
not listed on the inventory. It was not ded it out.
And now we've got to go back open up Brothers
of State again and probate this. Excuse me go back
to ye brothers of State and deed out this portion
of the property to his wife's estate, which then would
go to her kids. So that those are kind of
(25:06):
your three your three possibilities there.
Speaker 4 (25:09):
Okay. So with that, let me ask the question, do
you see any avenue where his son would be legally
entitled to that portion?
Speaker 2 (25:19):
Not unless not unless, and you said she died intestate,
but not unless his his wife, his surviving spouse needed
it to the de did it to the to her
husband's kid. Okay, because see this is the problem, Steve.
I got to tell you this happens because everybody's getting remarried,
(25:39):
you know what I mean. People are living a lot longer,
people are getting divorced, more people have kids and all
that kind of stuff. And it is not at all unusual.
In fact, it's very common for people when they you
don't do in a state, you think all my stuff
will go to my kids. No, it goes to the spouse,
and it goes to the spouse's kids. And what what
(26:00):
this this situation is not at all unusual. Put it
that way, and and here we are, right and now
you've got kids. You don't know what is it a
farm or a cottage or what.
Speaker 4 (26:16):
Oh, it's a it's part of a retirement home property.
Speaker 2 (26:22):
So it's a commercial property.
Speaker 4 (26:24):
No, no, it's it's it's a residential It was it
was a property within a retirement community.
Speaker 2 (26:32):
Oh, I got you. I got like a condo. Who
was a condo? Yeah yeah, okay, yeah, well still twenty
thousand dollars. That sounds off below but okay.
Speaker 4 (26:44):
Well yeah, it was by time you take it and
you divide it up, because it was the side of
my mom's children. But there was also she had a
brother and a sister, so there was also a portions
that oh I see direction, that's what it gets watered down, got.
Speaker 2 (27:02):
It, which licened the salami pretty thin at this point. Okay,
got it? Got it?
Speaker 4 (27:07):
Okay, So you have given great clarity on this, sir,
greatly appreciate your time as no.
Speaker 2 (27:14):
Oh, you're very welcome. The first thing I would do, though,
the very first thing I would do is check the
title in whatever county this thing exists, right, check the
record there to make sure it didn't happen then that
there was no deed recorded against it. That'll be easy,
probably the easiest thing, because you can just go to
the registered deeds, but then you know, you can do
(27:34):
that online in most every county in Michigan. Then you
go to the probate court and then you get the
You find out what was listed on the inventory, and
then if it was listed on the inventory and there
was a deed filed with the probate court, then try
to figure out what happened. If you can't find it
(27:55):
in the title record in the county where the thing exists,
then you say, well, what what the hell happened to
the deed? And then it would be fairly simple for
her kids to reopen the estate, get the get the
If it didn't work that way, then you've got to
reopen the estate, and you've got to list it at
the inventory, pay your inventory feed. But you know, the usual,
(28:18):
the usual probate thing in Miskegan.
Speaker 4 (28:21):
So, to the best knowledge that we have, she never
changed that. We'll call it the certificate to her name from.
Speaker 2 (28:30):
His right right, I get you, I got you, Yeah, understood, understood, Yeah,
So so go to so.
Speaker 4 (28:43):
Go ahead, go ahead, finished.
Speaker 2 (28:47):
Yeah, yeah, so just go to the Yeah. So then
I would still do the first step, check the registered
deeds in the county where the property is.
Speaker 4 (28:55):
Uh.
Speaker 2 (28:55):
But then you're it sounds like it sounds like it
sounds pretty clear. We're going to have to go back
to her probate, to your brother's probata state and find
out if it was listed in the inventory in your
brother's probatea state to convey it to his wife, his
surviving spouse, his widow, and then look in her probatea
(29:16):
state to find out you know, what the story was. So, yeah,
so I think a trip to probate court is in
your future.
Speaker 4 (29:26):
Okay, let me ask one final question that is, typically
from how long does it typically take unless somebody passed
is to win all the documents and everything within the
court start getting going.
Speaker 2 (29:42):
Oh, it really depends on the family, because what happens
is people don't do this because they feel like doing it.
They do it because they need to sell a piece
of property or open a bank or get the money
or something like that. And so typically you have an
incentive to get it done on a property like this.
I've seen it go like thirty years where property was
(30:03):
unresolved because nobody had any incentive to do anything with it. Understood,
you see, there there was nothing at stake, and so
nobody you know, probate court. There's no probate police out there, right,
they're not tracking down in some states like New Jersey
for example, or I think it was Maryland, they're all audited.
So there's a very active role for the probate court here.
(30:25):
The probate court is there to help the family out
when the family decides it has a problem. But the
family doesn't have a problem, the probate court doesn't have
a problem either. Okay, thank you so much for your time.
All right, appreciate it, No problem, Thank you, Steve, Thanks
for calling. I've been listening to the David Carriers Show.
I'm David Carrier, your retirement law specialist whatever that means.
Speaker 1 (31:04):
David's working and working and taken your calls at least
dat Carrier Show.
Speaker 2 (31:12):
Wellcome back to the David Carrier Show. I'm David Carrier,
your family's personal attorney. Now. Uh, you know, we started
off the show indicating that what's the problem with the
state planning is state planning is the stuff after you're dead, right, Uh?
And you're not dead yet. That's good. And then Steve
chimed in right on, right on time. I wish, I
wish I was organized enough to have arranged for him
(31:34):
to have called in. But that was the magic of radio. Uh.
That was what we call serendipity. Because that situation right
where we've got this one dies and that one dies,
and then what happens and who gets what? And did
grandma intend to give you know, the the the second
(31:59):
did the ancestral property really go to somebody who's not
a descendant at all? Is that really who we wanted
to benefit? Did anybody want to benefit the kids you know,
you know, the prior kids of the second spouse? No, no,
I'm going to guess that absolutely nobody wanted to do this.
(32:19):
Nobody wanted this result. Okay, but this is the result.
This is the result that we get. And typically would
the with the the dad in this case right with
the with the brother brother, getting them all mixed up here.
But the point is, when you get remarried and you
(32:41):
bring a house to the party, does the and and
the issue here was not that they bought it together
and you know, they shared it together, and so the
surviving spouse gets it because you know they participated or something. No,
this was a house that was needed to one party
in the husband's name hundred percent. And because it wasn't
(33:04):
it wasn't tenants by the entirety, it wasn't marital property.
She had to go through probate to get it. Well,
did he really mean to disinherit his kids? See, here's
here's one of the things. You know, here's news you
can use. Okay. So it is typical, very common for
spouses like this to when they say, well, I want
(33:27):
my half of the house to go to my kids.
Your half of the house can go to your kids. Okay,
no problem. So what you'll do. What they will do
is they'll give each other a life estate so they
can live in the house forever in a day. Right,
But at the second death, then my property is in
my estate, your properties in your estate. Mine goes to
mind kids, Yours goes to your kids. Okay, not people
(33:50):
do that, right, But here's the problem. Here's the problem
that you always have because that sort of planning is
what I describe. It's like beneficiary deations putting kids on
deeds blah blah blah blah. All these things. Oh, it's
so easy. Oh, it always works. It's like it's blunt force.
It's blunt force. It's non intelligent blunt force planning. Okay,
(34:15):
it's not a good idea because it doesn't anticipate any
of the stuff that actually happens in the real world.
Right now, in this case, talk about planning to fail.
By failing to plan, there was no will. Nobody had
a will. So okay, here's what we got going right. Oh,
I didn't know about that piece of property, you know.
(34:35):
And so now ten years later, ten years after everybody
related it dies, ancestral property doesn't go to the descendants.
It goes to somebody who I'm sure will be very
happy to get a twenty thousand dollars check. But maybe
your grandkids will be happy to get the twenty thousand
dollars check. And maybe with a modicum, just a little bit,
just a little bit, what is it, a little bit,
(34:56):
with a little bit of luck, you'll not screw up.
Dunt dunt, dunt dun. Anyway, The point is, it wouldn't
have taken much to get this right, Okay, but it
could have been better because what Dad could have done.
Let's assume this was Dad's house right at the first time.
First go around, it was Dad's house. Dad owned it
before they got together, which is why we had to
(35:19):
dat it to her through probate. Eat it to the
surviving spouse goes either way. Okay. What you should have done,
could have, should have would have done, is create a
trust in your trust. It should have been in a trust. Yes,
it should have been so. Number one, we don't have
to worry about the probate. We don't have to worry
about the medicaid, we don't have to worry about a
state recovery. We don't have to worry about all the
(35:40):
things you have to worry about when you own property
in your own name. That should have been done. But
let's focus on what happens after the first spouse dies.
After the first spouse dies, do we just give it
to the other spouse? Pretty typical, and maybe that's appropriate.
Maybe that's what you want to do, so do it,
God bless you. Maybe say, well, wait a second, you know,
(36:01):
I did own that before we get together, and I
would like my spouse to have a place to live
in the same terms and conditions that we live together.
I would very much like to look out for my spouse,
but her kids, I hate the kids. I don't even
know the kids. I don't hate them, I just don't
know them. But I know my kids, and I kind
of like my kids. Maybe that's if you hate your
(36:24):
kids and you love hers, we'll give it to her.
I'm fine with that. But if you like your own
kids and you don't know her kids or whatever, you know,
imagine the situation, you know, adjusted edited as you will. Okay,
I would like to provide. If your goal is to
provide a place for your spouse, then we do, and
we've done hundreds of these. Now what we call a
(36:45):
residence trust. And the idea is that in your estate plan,
in your estate plan, you say, okay, take the house,
put it in this trust, and my surviving spouse, provided
she pays the taxes, utilities, keeps it up, provided she
actually lives there. Right, I don't want her going to
(37:05):
Florida and leaving the house to rack and ruin up here.
She's got to actually use the house, because that was
the point. Right, I'm giving her the house so that
she's got a place to live. Well, if it's not
serving that purpose, what the hell we still hanging on
to it. For why do you have the right to
occupy something if you're not actually occupying it, do you see? Okay,
(37:27):
So in the residence trust, it says, hey, you can
live in the house. You want to live in the house,
live in the house. That'd be great. You don't want
to live in the house. Now it's going to my kids. Okay.
Sometimes we modify that so that if the house is
too big or whatever, you can sell the house and
downsize whatever. But when you're not using that property, right,
(37:47):
then it's going to the kids, going to my kids
because it was my house. Again, make whatever deal you
want to make, whatever arrangements you want to make. It's
different for different families. But if what you want to
do is keep the ancestral property in the family in
your side of the family, not go to kids that
you don't know, then you do the residence trust. And
(38:10):
it's also it's triggered, right the property is going to
go zoop over to my side of the family when
you die, because you don't need it at that point,
when you're not living in it, when you're not maintaining it,
when you're letting it go to back taxes. If you're
in a long term care facility. Okay, if you're in
a long term care faciy, what the hell you need
(38:30):
the house for? You don't zoop over to the ultimate
distribution right over to the kids. And you can't do
this with life estates. It is so frustrating. I can't
tell you how frustrating it is when all well intentioned
and you know, I'm not impugning motives here, it's just
like and the worst part about it is that it's
(38:51):
lawyers doing it. You know, that's terrible. It's like, what
weren't you thinking about anything? No, oh, it's a state.
And then they get to stay in the house. Yeah,
I know, but what if they're not in the house, Well,
they still have the life estate. Yeah, and now the
kids can't sell it. It doesn't go You see what
I'm saying. There's ways to do things that are smart
(39:12):
and effective and efficient, right and makes sense. See not
at all unusual for someone to do this life estate thing.
They sell the house, but the person's in the nursing home,
and now a big chunk, forty big chunk of the
money goes to the one in the nursing home, knocks
them off the Medicaid nobody gets any benefit from it,
(39:33):
and it could have all gone to the kids. So
what I'm saying is right, if you haven't planned a head,
if you kind of let things go right, you're gonna
look like a chump. You're gonna look it's just pathetic. Right,
you got a house, you had some property, inherited it.
They did. It could have worked out well. Now it's
a cautionary tale. Don't be a cautionary tale. Right, Let's
(39:57):
put you on on a pestl Oh, look at that's
how it was done correctly. Not you don't want that
to happen to you. Just saying you're listening to the
David Carrier Show. I'm David Carrier, inviting your emails David
at Davidcarrier Law dot com or six one, six seven
seventy four twenty four to twenty four will get your
(40:18):
question on the air.
He served at the Pentagon as an army jack. 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 (00:34):
Hello, and welcome to the David Carrier Show. I'm David Carrier,
your family's personal attorney, and you have found a place
where we talk about what retirement law? What is retirement
law anyway? Well it's a brand new category we just
made up. Okay, so ditch that elder law stuff. Forget
about estate planning. I wish I could, but no, it's
(00:57):
all about you know. Here's the thing. You know, who
plans their a state? You do? You know who's thinking
about the future. You are. You weren't thinking about it
when you had little kids. You weren't thinking about it
back in the day, very few. But when those footsteps
start catching up to you. Oh no, you know, when
(01:19):
that grim reaper is knocking on your door, that's when
you start thinking about this stuff. Well, okay, better late
than never. Sixty plus that's us right. Retirees, people who
retired people wish we retired, people who planned to retire someday,
people who know people who retired. That's why I were
calling it retirement long Why because you're not dead yet.
(01:40):
It's not dead law. That's what a state is, you know,
that's your state. Your state is the leftovers when you're dead,
which is fine. Let's we got to figure out something
to do with those leftovers, right. Ever since people started
making stone tools, you know, back in the well in
the Neolithic age, I guess it was NAP's flints, you
know what, You took flint and you fashioned it into arrowheads.
(02:03):
People have accumulated stuff, and then something have to happen
to that stuff when you weren't around anymore, when you
were what pushing up daisies. Let's be euphemistic about it. Huh,
you're pushing up daisas Yeah, what to your grand reward? Anyway?
The point is most of state planning is all about
what happens to the stuff, the leftover stuff when I'm dead.
(02:23):
But check the mirror. You're probably not dead yet. If
you're listening to me now right twenty four seven, three
sixty five, if this show is on constantly, well you're
either in the good place or the bad places. That
depends on your reaction to the show, I guess. But
if you only hear it intermittently, you know, like when
(02:47):
you're listening to it right now, then probably you're still
you're still on this side of the Great Divide, and
so you're still alive. That would be my guess. Yeah,
I do have it reliably that for the worst defenders. Yeah,
you get a lot of the Davy Carrier show anyway
(03:08):
in the bad place, I mean anyway, because if you're
in a good place, you don't need to hear it,
right because you already did the good thing. Anyway, Long
story short, most people don't plan to the extent that
they plan at all. They're planning for leftovers after death.
The problem is it used to you know, and you
can understand that, right because that used to be the
(03:31):
problem back in the day. What was the problem. The
problem was I got stuff, I'm gonna die. I need
somebody else to get my stuff, so everybody doesn't fight
about it, curse my name, you know. I wish I
had died with nothing. And because now it's such a huge,
a huge fruit fraud, it's just huge hassle, people killing
themselves over the stuff, and I didn't do a good plan, right.
(03:53):
That is, that is literally the number one reason people
still plan, right is because you don't want to be reminded, remembered.
You don't want to be remembered as the pathetic jerk
who split up your family because you're foolish enough just
to throw everything on the sidewalk and let them fight
over it. Okay, that's a bad, bad plan, not a
(04:15):
good plan. So how do we plan ahead? Well, that's
the natural thing, right, We're going to plan for when
we're dead. And that's hard enough to confront anyway. On
my website, I say that ninety six percent of estate
plans fail, and there's a way to different ways of
thinking about that, Right, it's a provocative statement. I get that.
Well if you consider the fact that those people's plan
(04:36):
is to not plan at all, not plan at all,
seventy five percent of people I just saw the survey,
and you know, surveys are surveys. You believe them, you
don't believe them. But seventy five percent is something like
that of people say oh, it's really important to have
a will, and half of the people say that they've
got one. I think they're lying. I don't think they're
(04:57):
telling me the truth. I don't think it's that many
peop people. I don't think it's that larger percentage of
folks who actually have a plan. I think most people.
And I'm not in the ninety six. I'm not even
counting those people. But look at in every every military
organization I've ever been part of, and there were a few. Uh,
(05:18):
the emphasis failing to plan is planning to fail. Okay,
well that's a that's a failure if you haven't planned
your failing. And there's seventy percent of folks right away,
and then what about the rest of the people who are,
you know, doing something? Oh, I got the will, I
did something, got the will from the library. Yeah that's great.
I went to a dinner and I got a thousand
(05:40):
dollars will at the dinner, you know. And oh and
a whole a bunch of exotic investments that are going
to be really, really good. Okay, you know whatever you're into,
buy and buy me. But the point is that of
the people who actually do something, most of it, the
(06:00):
last majority of it is is not good. That's just
a and and the reason I'm kind of on this
jag today, on this bent on this going down this
path is because oh, last week we had a few
people came in who had some sort of planning right
(06:20):
and did it when the kids were little, and now
the financial situation is very different than when the kids
were little, or maybe it's not so different, or maybe
they just did one a year or so ago. You know,
the the went to the you know, went to the uh,
the steakhouse sales pitch for annuities and wound up buying
(06:40):
a trust for a thousand dollars or whatever. So that's
what I'm talking about today. What I'm talking about is
number one. Everybody focuses on death. That that death. So
if you do a will, it's a death plan. I
know a fella he's the sort of the the go
to guy for a large estate planning firm, not in
(07:03):
Michigan on the east coast, Okay. So he's got lots
and lots of clients, and they're all fairly well to
do because they're in a coastal city, put it that way.
And the people who come to him are our clients
of this fairly high end financial advisor of thinking and
(07:27):
ninety percent of what he does his wills, which really,
you know, it's like really really, now you're gonna serve
some people. You're gonna serve a population that is hungry, hungry,
has needs, right, they have needs, So you're gonna bring
them twinkies. They got nothing against twinkies, But twinkies are
(07:50):
not the basis of a good nutritional plan. Okay, but
here you got something to eat. It fills you up.
Eat enough twinkies, I guess it fills you up what
you need. It'll rot your teeth out, it'll screw with
your metabolism and the rest of it, and it won't
work anyway. But that's what they're doing. It's like like,
here have a will based plan. Here have a twinkie.
(08:13):
Oh you're still hungry. Oh have a ho ho then,
or maybe a ring dang or a devil dog or something,
you know what I mean. It's like, it's unbelievable that
this sort of things. And that's just one example. The
other thing with folks that came in the office, and
it's like one of them, I have to tell you,
one of them, a couple of them. Actually, really, we're
(08:33):
very well aware, faithful listeners, very well aware of the
deficiencies in their program, that the thing that they had done.
But you know, people like especially attorneysh like you say
ninety six percent of plans fail. Well, because failing to
plan is planning to fail. That's a failure right there.
Or you put your kids' names on accounts or put
(08:56):
them on the house and you think that's a plan
guarantee failure, failure in the sense of what was your
goal here? Was the idea I need to get something
to the kids? Was the idea to do it at
the lowest expense that retained the most control? What were
your criteria for success? And it seems to me that
the ninety six percent failure rate comes from a not
(09:20):
very ambitious, not very ambitious intention of planning, right, I mean,
you're not trying to do the best. You're just trying
to kind of get by and not screw everything up,
so people curse your name. Right. It doesn't work then
because because you didn't plan, you know, and it winds
(09:40):
up being much more expensive than it should be, it
winds up being devastating to your surviving spouse, all that
sort of all that kind of thing very bad. So
that's why we call it retirement law. Just to refocus
things away from estate planning. You're a state being the
stuff that's left over when you're dead, left over when
you're dead. We don't want we need to do that.
(10:02):
Of course we need to do that. Hopefully there will
be leftovers. We expect that there will be. We plan
for there to be leftovers. Well, let's let's add a
little intelligence to that. But you're never gonna get there
unless you get there, and you're not gonna get there
doing things the way you're doing them. This is my ship,
the finger part of the show. Anyway, give us a
call away, don't just six one six seven seven four
(10:24):
twenty four twenty four. That's six one six seven seven
four twenty four twenty four. I'm David Carrier. Your family's
retirement law is specialists.
Speaker 3 (10:34):
Bed wed is a wed no a bad bad man?
The bands A bed bed bed is a wein no
A bed be the band I went away the bed
bad man the bands I win a well a bed
bed bed when the bird is a wed no we
the bedda don't you now the bad? Well everybody knows
(10:54):
and the bed is a wed no bed.
Speaker 4 (11:02):
That everybody head an look out the USA.
Speaker 2 (11:08):
Then everybody p.
Speaker 1 (11:09):
Sir, anyways promoting so caring Now at seven seven twenty four,
twenty four.
Speaker 2 (11:15):
This is the David Carrier Show sent us to we
welcome back to the David Carrier Show. I'm David Carrier,
your family's personal attorney. I promise that at the next segment,
the very next segment, the one after this one, not
this one, but the one after this one, we'll be
talking about the PACE program. I got a number of
emails last week saying, hey, I was getting out of
(11:37):
the car at church and missed the the whole deal
with PACE program of all inclusive care for the elderly.
So let's go over that one again, shall we? Yes,
we shall, yes, we absolutely shall. Give us a call.
Why don't you six one six seven seven four twenty
four twenty four. That's six one six seven seven four
(11:58):
twenty four twenty four. What could it hurt? Could it hurt?
I don't know. I don't know, But anyway, give it
a try. Find out that it's really quite painless to
get your question, comment or concern, question, comment or concern
on the air. I promise I won't make fun of
you if you call, But if you don't call, then
I definitely will make fun of you, and that will
be painful for both of us. So let's not do
(12:20):
Let's not do that. Let's not go down that path,
shall we not? Okay, we shall not? Six one, six
seven of them four twenty four, twenty four. That's the
number to call. Now, let's get back to it. Why
do people plan their estates because they don't want to
be humiliated when they're dead, That's really it. That is
the number one reason. The survey says it's a private survey.
(12:40):
It's not I'm not even supposed to have seen it,
but but that we have vase of getting information anyway,
that's number one. It's it's more important, right that you
not look like a total chump when you're dead than
to actually get stuff to your kids, because getting stuff
to your kids is number two reason why people play
(13:02):
in their estates. Okay, So if you're wondering, gee, I
wouldn't want to, you know, I wouldn't want my entire life.
I wouldn't want the exclamation point on the end or
the period on the end of my life to be
a stain. I'd like it to be something positive. Well,
that you're you're right along with most with most folks. Okay,
(13:26):
we've got Steve on the line. Hello Steve, welcome to
the David Carrier Show.
Speaker 4 (13:31):
Good morning, and thank you for taking the call.
Speaker 2 (13:33):
Sir, you bet you okay, well sure this is what no, No,
let's rock around for an hour or two.
Speaker 4 (13:47):
Well, I'm trying to get some information, trying to establish
the legal distribution of a property that was held by
my brother. He passed about ten years ago and he
did not have a wi so according to Michigan law,
and everything is distributed to his wife at the time. Okay,
(14:07):
well she passed.
Speaker 2 (14:09):
Well, well did he have did he have kids that well?
Hang on, hang on? Did he have kids as well?
Speaker 4 (14:15):
He had one? They have children he had he had
a child from a previous marriage, and she had a
couple from a previous marriage. They did not have anything
from between them.
Speaker 2 (14:28):
Okay, so right off the bat, let me let me
correct something. Uh, And what's the depending on what the
value of the estate is the surviving spouse, when they
have children that are not shared children, it's a lower
level than if they have children that are children. Anyway,
it doesn't all go to the surviving It doesn't automatically
(14:49):
go to the surviving spouse. There's an amount that does
go to the surviving spouse, but then the surviving spouse
splits it with the and it's a lower amount. If
you've got kids who aren't kids of the surviv a spouse,
you split it with the you split it with the kids. Well,
so what's the value of the property.
Speaker 4 (15:07):
Well, I understand that, but you know, as I said,
this happened about ten years ten years ago, and it
was all distributed to her because the value was like
just over one hundred thousand dollars.
Speaker 2 (15:19):
Okay, all right, yep.
Speaker 4 (15:20):
Ye okay, okay, okay, But here's here's the thing. The
important piece is that he was a owner, along with
the fete, with the siblings of some property in another state,
and she never had that that we'll call it a
deed into her names. Okay. So what we're trying to
(15:46):
find out right now is that since she's passed, if
if that what what? What's basically what's going to happen?
How do we determine who would then receive that that property.
Let's say, if she did, you have a will O, well, okay,
(16:08):
let me ask this question. Would would the list of
property have to have to include this specific piece of
it within his probate folence.
Speaker 2 (16:22):
Well, let me ask you one other question. Do you
have a deed uh handy that deeds the property? I
assume it's to you and your siblings? Right? Is that right?
Speaker 4 (16:32):
Correct?
Speaker 3 (16:32):
Yes?
Speaker 2 (16:33):
Like from grandparents or something correct? And I'm also guessing
that they didn't do it as joint tenants with rights
or survivor. Which is why we're still worried about this issue.
Speaker 3 (16:46):
Is that.
Speaker 4 (16:47):
I would have to say yes, even though I would
have to admit I don't totally understand that question.
Speaker 2 (16:53):
But okay, but the deed that when when you guys
got the property, did you get it from Grandpa's a
state or did Grandpa died it over to you?
Speaker 4 (17:03):
How?
Speaker 2 (17:03):
How exactly did that happen? Did you get how did
the siblings get the property?
Speaker 4 (17:09):
That came through my It was from the grandparents, and
it came through it was on my mom's side of
the family.
Speaker 2 (17:20):
Okay, okay, And did it go through probated Grandpa's estate?
Speaker 4 (17:25):
Well, yeah, it probated grand grand Grandpa's estate because she
also it was my grandmother. She passed and she did
not have a will either, so and then my mom
had already passed, so that poorsha that went through to
the children.
Speaker 2 (17:44):
Okay, okay, and then and that came out of probate court, right,
so yeah, so probably okay, Okay, good good. It's all
track and I'm just doing a little bit of backfilling,
is what I'm doing, Okay, because depending on how these
things happened so so far, it all tracks that your
brother had a tenants in common what we call tenants
(18:08):
in common interest in the grandparents' property, okay, and then
it should have been probated, should have been probated ten
years ago when the rest of the property was probated.
Now the question is what's the value. What is the
value of his portion of that property?
Speaker 4 (18:31):
Well, in rough numbers, yeah, just roughly twenty.
Speaker 2 (18:39):
Okay. So again we're not even reaching the threshold where
we have to split it with the kids. So it
would all go to his spouse. It all go to
his wife at the time, which means that it would
all go to her kids when she died. Okay, Okay,
(19:00):
I tell you what. They're about to start the music,
So if you want to hang on through the news
and let's just let's just recap this whole the whole
tale if you don't mind, okay, we'll just make sure. Okay,
So we're doing surfer music today, just to we're counter programming,
is what we're doing. You know, if you look outside
(19:21):
and it's you know, twenty seven degrees or less, as
it has been for quite a while, we're thinking that
the you know a little bit of beach boys or
whoever is not uncalled for. Oh, there we are. You've
been listening to the David Carrier Show. I'm David Carrier,
your family's retirement law specialist, which means nothing other than
(19:44):
I'm calling myself that full disclosure. There's a place call.
Speaker 1 (20:03):
David's got the how too you're looking for just call
seven seven four twenty four. And this says, but David
Carrier Show.
Speaker 2 (20:13):
We welcome back to the David Carrier Show. I'm David Carrier,
your family's personal attorney. Not don Ho. Although we had
some physical resemblances there, you know, not not too dissimilar anyway.
Six one six seven seven four twenty four twenty four.
That's sixty one six seven seven four twenty four twenty four.
Steve called that number. You can too, now, Steve, let's
(20:36):
kind of recap where where we're at on this thing?
Your dad, I believe it was your dad years ago,
had no your brother excuse me, it was your brother.
Your brother years ago was alive and married a woman
who had kids of her own when he had kids
(20:57):
of his own, so it was a second go around
for both of them. Guessing okay, And when he died
he owned property the house that they lived in. I
guess he owned the house and she got it in probate. Now,
at the same time, there was an ancestral piece of
property that your dad had shared interest in and interest
(21:20):
shared with you and the other siblings. Am I tracking
so far?
Speaker 4 (21:25):
Well, it was the grand period.
Speaker 2 (21:29):
It was the grandparents, which would have gone to which
would have gone to your mom, but your mom died,
So you guys.
Speaker 4 (21:34):
Got it correct?
Speaker 2 (21:37):
Okay, So all right? Got it? So now the question,
But apparently grandmother's estate was not probated or this piece
of property at least wasn't probated in your brother's estate,
So that so that when he because it wasn't probated
(22:00):
at his why wasn't it probated anyway? I mean, you
must have known that grandma had died and Mom had
already died, well, just out of curiosity, just an overlook oversight.
Speaker 4 (22:10):
No, well, it's just to make sure here the grand
appearance property was was probated because she was intested as well.
And then since my mom had passed, it came to
the children, so we're all on the on the certificate,
so to speak. And then when he passed, he did
not have a will either.
Speaker 2 (22:31):
So yeah, yeah, but but but grandma had died. But
mom and grandma died before brother died, right before your
brother died, so he knew that he owned the property
from grandma. He did own the he owned the property
at his at his death, he owned the property. But
why wasn't the why wasn't his share of that property
(22:52):
probated in his estate? I guess that'd be my question.
Speaker 4 (22:56):
Okay, well, my question is we don't know that we
don't have a listing of all the pieces that were probated.
That was actually one of my questions.
Speaker 2 (23:05):
Okay, oh, that need to be.
Speaker 4 (23:08):
Explicitly on the list of what's being probated in order
to help unra.
Speaker 2 (23:17):
Yes, yeah, it has to be part of the inventory.
So what county did he die in? What county was
to probate? Was your brother's probate in which county was
your brother's probate, So that's not a big deal. So
we just go to Miskegan, We get the record, we
find out what was on the inventory. If brothers share
(23:37):
of the real estate was on the inventory, well, and
there should have been a deed out of the estate recorded,
right A A probate deed, a fiduciary deed should have
been recorded in the county in which the real estate
is exists, right is that is the real estate also
(23:58):
in Miskegan. Okay, Well, anyway, you'd still get the order
distributing the property, and that should have been that deed
should have been recorded in whatever county the property exists.
But maybe it didn't happen. So here are the possibilities.
It was listed on the inventory and it was deeded out,
(24:21):
and the deed was recorded, and so a title search
of the property would reveal the deed. That's the best case.
The second problem possibility is that it was listed on
the inventory and the probated state it was deed it out,
but the deed was not recorded, and now we have
to get another deed. The third possibility is it was
(24:44):
not listed on the inventory. It was not ded it out.
And now we've got to go back open up Brothers
of State again and probate this. Excuse me go back
to ye brothers of State and deed out this portion
of the property to his wife's estate, which then would
go to her kids. So that those are kind of
(25:06):
your three your three possibilities there.
Speaker 4 (25:09):
Okay. So with that, let me ask the question, do
you see any avenue where his son would be legally
entitled to that portion?
Speaker 2 (25:19):
Not unless not unless, and you said she died intestate,
but not unless his his wife, his surviving spouse needed
it to the de did it to the to her
husband's kid. Okay, because see this is the problem, Steve.
I got to tell you this happens because everybody's getting remarried,
(25:39):
you know what I mean. People are living a lot longer,
people are getting divorced, more people have kids and all
that kind of stuff. And it is not at all unusual.
In fact, it's very common for people when they you
don't do in a state, you think all my stuff
will go to my kids. No, it goes to the spouse,
and it goes to the spouse's kids. And what what
(26:00):
this this situation is not at all unusual. Put it
that way, and and here we are, right and now
you've got kids. You don't know what is it a
farm or a cottage or what.
Speaker 4 (26:16):
Oh, it's a it's part of a retirement home property.
Speaker 2 (26:22):
So it's a commercial property.
Speaker 4 (26:24):
No, no, it's it's it's a residential It was it
was a property within a retirement community.
Speaker 2 (26:32):
Oh, I got you. I got like a condo. Who
was a condo? Yeah yeah, okay, yeah, well still twenty
thousand dollars. That sounds off below but okay.
Speaker 4 (26:44):
Well yeah, it was by time you take it and
you divide it up, because it was the side of
my mom's children. But there was also she had a
brother and a sister, so there was also a portions
that oh I see direction, that's what it gets watered down, got.
Speaker 2 (27:02):
It, which licened the salami pretty thin at this point. Okay,
got it? Got it?
Speaker 4 (27:07):
Okay, So you have given great clarity on this, sir,
greatly appreciate your time as no.
Speaker 2 (27:14):
Oh, you're very welcome. The first thing I would do, though,
the very first thing I would do is check the
title in whatever county this thing exists, right, check the
record there to make sure it didn't happen then that
there was no deed recorded against it. That'll be easy,
probably the easiest thing, because you can just go to
the registered deeds, but then you know, you can do
(27:34):
that online in most every county in Michigan. Then you
go to the probate court and then you get the
You find out what was listed on the inventory, and
then if it was listed on the inventory and there
was a deed filed with the probate court, then try
to figure out what happened. If you can't find it
(27:55):
in the title record in the county where the thing exists,
then you say, well, what what the hell happened to
the deed? And then it would be fairly simple for
her kids to reopen the estate, get the get the
If it didn't work that way, then you've got to
reopen the estate, and you've got to list it at
the inventory, pay your inventory feed. But you know, the usual,
(28:18):
the usual probate thing in Miskegan.
Speaker 4 (28:21):
So, to the best knowledge that we have, she never
changed that. We'll call it the certificate to her name from.
Speaker 2 (28:30):
His right right, I get you, I got you, Yeah, understood, understood, Yeah,
So so go to so.
Speaker 4 (28:43):
Go ahead, go ahead, finished.
Speaker 2 (28:47):
Yeah, yeah, so just go to the Yeah. So then
I would still do the first step, check the registered
deeds in the county where the property is.
Speaker 4 (28:55):
Uh.
Speaker 2 (28:55):
But then you're it sounds like it sounds like it
sounds pretty clear. We're going to have to go back
to her probate, to your brother's probata state and find
out if it was listed in the inventory in your
brother's probatea state to convey it to his wife, his
surviving spouse, his widow, and then look in her probatea
(29:16):
state to find out you know, what the story was. So, yeah,
so I think a trip to probate court is in
your future.
Speaker 4 (29:26):
Okay, let me ask one final question that is, typically
from how long does it typically take unless somebody passed
is to win all the documents and everything within the
court start getting going.
Speaker 2 (29:42):
Oh, it really depends on the family, because what happens
is people don't do this because they feel like doing it.
They do it because they need to sell a piece
of property or open a bank or get the money
or something like that. And so typically you have an
incentive to get it done on a property like this.
I've seen it go like thirty years where property was
(30:03):
unresolved because nobody had any incentive to do anything with it. Understood,
you see, there there was nothing at stake, and so
nobody you know, probate court. There's no probate police out there, right,
they're not tracking down in some states like New Jersey
for example, or I think it was Maryland, they're all audited.
So there's a very active role for the probate court here.
(30:25):
The probate court is there to help the family out
when the family decides it has a problem. But the
family doesn't have a problem, the probate court doesn't have
a problem either. Okay, thank you so much for your time.
All right, appreciate it, No problem, Thank you, Steve, Thanks
for calling. I've been listening to the David Carriers Show.
I'm David Carrier, your retirement law specialist whatever that means.
Speaker 1 (31:04):
David's working and working and taken your calls at least
dat Carrier Show.
Speaker 2 (31:12):
Wellcome back to the David Carrier Show. I'm David Carrier,
your family's personal attorney. Now. Uh, you know, we started
off the show indicating that what's the problem with the
state planning is state planning is the stuff after you're dead, right, Uh?
And you're not dead yet. That's good. And then Steve
chimed in right on, right on time. I wish, I
wish I was organized enough to have arranged for him
(31:34):
to have called in. But that was the magic of radio. Uh.
That was what we call serendipity. Because that situation right
where we've got this one dies and that one dies,
and then what happens and who gets what? And did
grandma intend to give you know, the the the second
(31:59):
did the ancestral property really go to somebody who's not
a descendant at all? Is that really who we wanted
to benefit? Did anybody want to benefit the kids you know,
you know, the prior kids of the second spouse? No, no,
I'm going to guess that absolutely nobody wanted to do this.
(32:19):
Nobody wanted this result. Okay, but this is the result.
This is the result that we get. And typically would
the with the the dad in this case right with
the with the brother brother, getting them all mixed up here.
But the point is, when you get remarried and you
(32:41):
bring a house to the party, does the and and
the issue here was not that they bought it together
and you know, they shared it together, and so the
surviving spouse gets it because you know they participated or something. No,
this was a house that was needed to one party
in the husband's name hundred percent. And because it wasn't
(33:04):
it wasn't tenants by the entirety, it wasn't marital property.
She had to go through probate to get it. Well,
did he really mean to disinherit his kids? See, here's
here's one of the things. You know, here's news you
can use. Okay. So it is typical, very common for
spouses like this to when they say, well, I want
(33:27):
my half of the house to go to my kids.
Your half of the house can go to your kids. Okay,
no problem. So what you'll do. What they will do
is they'll give each other a life estate so they
can live in the house forever in a day. Right,
But at the second death, then my property is in
my estate, your properties in your estate. Mine goes to
mind kids, Yours goes to your kids. Okay, not people
(33:50):
do that, right, But here's the problem. Here's the problem
that you always have because that sort of planning is
what I describe. It's like beneficiary deations putting kids on
deeds blah blah blah blah. All these things. Oh, it's
so easy. Oh, it always works. It's like it's blunt force.
It's blunt force. It's non intelligent blunt force planning. Okay,
(34:15):
it's not a good idea because it doesn't anticipate any
of the stuff that actually happens in the real world.
Right now, in this case, talk about planning to fail.
By failing to plan, there was no will. Nobody had
a will. So okay, here's what we got going right. Oh,
I didn't know about that piece of property, you know.
(34:35):
And so now ten years later, ten years after everybody
related it dies, ancestral property doesn't go to the descendants.
It goes to somebody who I'm sure will be very
happy to get a twenty thousand dollars check. But maybe
your grandkids will be happy to get the twenty thousand
dollars check. And maybe with a modicum, just a little bit,
just a little bit, what is it, a little bit,
(34:56):
with a little bit of luck, you'll not screw up.
Dunt dunt, dunt dun. Anyway, The point is, it wouldn't
have taken much to get this right, Okay, but it
could have been better because what Dad could have done.
Let's assume this was Dad's house right at the first time.
First go around, it was Dad's house. Dad owned it
before they got together, which is why we had to
(35:19):
dat it to her through probate. Eat it to the
surviving spouse goes either way. Okay. What you should have done,
could have, should have would have done, is create a
trust in your trust. It should have been in a trust. Yes,
it should have been so. Number one, we don't have
to worry about the probate. We don't have to worry
about the medicaid, we don't have to worry about a
state recovery. We don't have to worry about all the
(35:40):
things you have to worry about when you own property
in your own name. That should have been done. But
let's focus on what happens after the first spouse dies.
After the first spouse dies, do we just give it
to the other spouse? Pretty typical, and maybe that's appropriate.
Maybe that's what you want to do, so do it,
God bless you. Maybe say, well, wait a second, you know,
(36:01):
I did own that before we get together, and I
would like my spouse to have a place to live
in the same terms and conditions that we live together.
I would very much like to look out for my spouse,
but her kids, I hate the kids. I don't even
know the kids. I don't hate them, I just don't
know them. But I know my kids, and I kind
of like my kids. Maybe that's if you hate your
(36:24):
kids and you love hers, we'll give it to her.
I'm fine with that. But if you like your own
kids and you don't know her kids or whatever, you know,
imagine the situation, you know, adjusted edited as you will. Okay,
I would like to provide. If your goal is to
provide a place for your spouse, then we do, and
we've done hundreds of these. Now what we call a
(36:45):
residence trust. And the idea is that in your estate plan,
in your estate plan, you say, okay, take the house,
put it in this trust, and my surviving spouse, provided
she pays the taxes, utilities, keeps it up, provided she
actually lives there. Right, I don't want her going to
(37:05):
Florida and leaving the house to rack and ruin up here.
She's got to actually use the house, because that was
the point. Right, I'm giving her the house so that
she's got a place to live. Well, if it's not
serving that purpose, what the hell we still hanging on
to it. For why do you have the right to
occupy something if you're not actually occupying it, do you see? Okay,
(37:27):
So in the residence trust, it says, hey, you can
live in the house. You want to live in the house,
live in the house. That'd be great. You don't want
to live in the house. Now it's going to my kids. Okay.
Sometimes we modify that so that if the house is
too big or whatever, you can sell the house and
downsize whatever. But when you're not using that property, right,
(37:47):
then it's going to the kids, going to my kids
because it was my house. Again, make whatever deal you
want to make, whatever arrangements you want to make. It's
different for different families. But if what you want to
do is keep the ancestral property in the family in
your side of the family, not go to kids that
you don't know, then you do the residence trust. And
(38:10):
it's also it's triggered, right the property is going to
go zoop over to my side of the family when
you die, because you don't need it at that point,
when you're not living in it, when you're not maintaining it,
when you're letting it go to back taxes. If you're
in a long term care facility. Okay, if you're in
a long term care faciy, what the hell you need
(38:30):
the house for? You don't zoop over to the ultimate
distribution right over to the kids. And you can't do
this with life estates. It is so frustrating. I can't
tell you how frustrating it is when all well intentioned
and you know, I'm not impugning motives here, it's just
like and the worst part about it is that it's
(38:51):
lawyers doing it. You know, that's terrible. It's like, what
weren't you thinking about anything? No, oh, it's a state.
And then they get to stay in the house. Yeah,
I know, but what if they're not in the house, Well,
they still have the life estate. Yeah, and now the
kids can't sell it. It doesn't go You see what
I'm saying. There's ways to do things that are smart
(39:12):
and effective and efficient, right and makes sense. See not
at all unusual for someone to do this life estate thing.
They sell the house, but the person's in the nursing home,
and now a big chunk, forty big chunk of the
money goes to the one in the nursing home, knocks
them off the Medicaid nobody gets any benefit from it,
(39:33):
and it could have all gone to the kids. So
what I'm saying is right, if you haven't planned a head,
if you kind of let things go right, you're gonna
look like a chump. You're gonna look it's just pathetic. Right,
you got a house, you had some property, inherited it.
They did. It could have worked out well. Now it's
a cautionary tale. Don't be a cautionary tale. Right, Let's
(39:57):
put you on on a pestl Oh, look at that's
how it was done correctly. Not you don't want that
to happen to you. Just saying you're listening to the
David Carrier Show. I'm David Carrier, inviting your emails David
at Davidcarrier Law dot com or six one, six seven
seventy four twenty four to twenty four will get your
(40:18):
question on the air.
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