Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
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):
Hello, and welcome to the David Carrier Show. I'm David Carrier,
your family's personal attorney. Now is the time give us
a call. Sixty one six seven seven four twenty four
twenty four. That's six one six seven seven four twenty
four twenty four. That's right. Just as over the Labor
Day weekend and most holidays, we are we are live,
(00:43):
so you can actually call in and say, hey, you're
full of bologney and I say, that wasn't bolooney, it
was a pimento loaf. Anyway. Six one six seven seven
four twenty four twenty four. That's the number to call
if you'd like to get your question, comment, or concern
on the air. And that's you know, pretty much anything
you have a question coming or concern about. Of course,
(01:05):
we focus on state planning, long term care, medicaid, elder law,
blah blah blah, real estate, business law, all that good
kind of stuff. But welcome your call about any other topic.
That would be fine. So you know, you get you
get the first hour. Is it kind of a reset
(01:26):
in terms of what it is we do, why we
do it, Why it's okay for you not to go broke.
You know, why the system is as screwed up as
it is. There's reasons for everything. And the screwed up
system that we've got right now is not is not
by design. Okay, it's not on purpose, all right, people,
(01:47):
they're not trying to do this. It just kind of
worked out that way, all right. That's the that's the
problem with this stuff. You know, it'd be one thing,
it'd be one thing if they meant to do it
to you, right, well, it's not a question did they
mean to do it? It's a question of how does
it actually work and what can we do about it
(02:08):
given the system that we've got, all right, That's what
it is. It's like taxes. That's you know, you can
cry all you want about taxes there forever, and you're
going to keep on paying them, that's true. The only
question is how much do you have to pay within
the rules that they created? You see, you don't have
to go broke because of long term care. You don't
(02:29):
have to right, you don't have to pay for your
own medical care. I mean you can actually take advantage
of the thing that you paid for, and namely Medicare.
You can take advantage of that. It's possible to do.
Why aren't you? I don't know. I think you should.
So that's just where I'm coming from on that. One
six one, six, seven, seven four, twenty four, twenty four,
(02:50):
that's the number to call. Uh, this is a. This
is a This comes up a lot, especially these days.
Am I legally responsible for my husbands medical or Medicare
or Medicaid costs if we are legally separated? This year,
my husband and I became legally separated with court order.
We're each responsible for our individual personal debts going forward,
(03:13):
But the debt clause does not specifically mention, you know,
Medicaid long term care debt. I have enough assets to
cover all my elder needs, but my husband does not.
He will definitely need Medicaid to help cover his expenses,
including nursing home. One. Do we need to amend the
legal separation debt section to include Medicaid? Two? Will medicaid
(03:36):
look at my money and assets to help pay for him,
and will be included any look back? Is divorce the
only solution, thank you. Well, Look, if you're getting legally
separated as a medicaid strategy, right, well, you did it
all wrong. If you're getting separated because you don't like
each other, that's a different story, all right. If you
(03:58):
really got separated here, okay, well let me back up.
Marriage is marriage, Okay, that's how Michigan looks at it,
all right. If you're married. Doesn't matter that you're legally separated.
It doesn't matter that you have a prenuptial agreement, none
of that matters. Okay, you're what they call an asset
(04:19):
control group of two you both count, and fiscal group
of two. You both count, and they're gonna look at
your assets. They're gonna look at his assets in determining
medicaid eligibility for either one of you, as long as
you're married, Okay, they're gonna look at both. Now, that
doesn't mean that all of your assets have to be
(04:42):
subject to him. Okay, I mean they do kind of
when you're doing the application, but then within a year
right after what they call the presumed asset eligible period
right after he's on the Medicaid. Then they don't look
at your assets anymore. They don't want you to give
stuff away, but they're not. They don't care. You can
(05:02):
have an unlimited amount of income, unlimited assets, right, as
long as you're not giving stuff away, then that's okay.
You can stay married. Now, if you got separated as
sort of a divorced light like you were, you were
gonna get divorced, but you said, ah, let's not do
that for whatever reason. Okay, let's just uh, let's just
get separated legally separate. Okay, all right, but you are
(05:26):
going to count against each other for the medicaid that
is going to be you know, the money that you
think you saved for you, you're actually saved for both
of you. Right, But that doesn't mean that you have
to get divorced, okay, because what you could do if
you see so many people, so many folks, they married folks,
(05:51):
and our client, we never do divorce. Okay. Like that's
just sort of a bottom line. Medicaid planning is. Divorce
is not medicaid planning tool. You shouldn't get divorced. It's bad, wrong, stupid,
terrible for all kinds of reasons. Right now, if you're
already going to get divorced, well, okay, so get divorced.
(06:12):
Who am I to stop you? Right? Nobody. But but
if you weren't going to get divorced, then don't get
divorced because of medicaid because you don't have to, which
you can. We have too many tools to go in
and do a property settlement now, not the core, not
what you're talking about here, but do the qualified domestic
relations order. Right now, you're still going to count. But
(06:36):
that doesn't mean there aren't things that can be done.
We can still do things to rearrange assets, right so
that you're not going broke in the long term care,
but you're not getting divorced either, right, that's the point. Now?
Is this difficult stuff? Yeah, it's difficult stuff. Over the years,
(06:57):
I've gotten unbelievable, unfounded criticism for doing this kind of thing,
although the Court of Appeals upheld us, and now that
body of law is developing so that this is you
don't have to get to all these people get divorced
for no reason. Well, the reason is, oh, this is
how we got to get We got to get divorced
to qualify for the Medicaid. It isn't true. That is
(07:20):
not true. There are other things you can do. And
for most people, the tragedy of it is these people
have been together their whole life, right, and then they
read something somewhere, they heard something somewhere, and now they're
getting divorced because they think that's the only thing they
can do about it. Right now, if you're separated because
the marriage is over and all the red, Okay, don't
(07:41):
stay in a loveless relationship, you can't stand each other whatever,
go ahead and get divorced. I mean, who am I
to judge? Fine, right, go ahead, but do it for
that reason. Don't do it for the bad reason, oh,
that this is the only thing we can do. You know,
are on its magazine. This is probably ten years ago now.
They had a picture on the bay, you know, till
(08:04):
death or nursing Home, do us Part, and it was
all about getting divorced to qualify for the Medicaid. I
was like, it was outrageous. You don't have to get divorced. No,
you don't, we know, divorced. You don't have to do it, okay,
because there are other things that you can do, right,
there are the legal things that you can do. You
(08:25):
don't anyway if the letter writer doesn't like that, you know,
if you don't like each other, and you're going to
get divorced anyway, and the separation is just sort of
a way to you know, I don't know. I don't
know why you get separated without getting divorced anyway, except
for financial reasons, if that was the idea, Right, there's
other things that can be done. I guess that's my
(08:45):
bottom line on it. So, so don't be don't be
getting don't be getting divorced, would you please? All right,
let's get to another one. What is the benefit of
creating a trust? And what should be included in the
trust I am creating? Will my twenty five year old daughter?
Is this sole beneficiary? Eardier to have her listened as
beneficiary and life insurance retirement funds. I thought was to
(09:07):
do a blanket statement that property, home, all contents go
to her. But should I also create a trust and
what should go in the trust?
Speaker 1 (09:14):
Oh?
Speaker 2 (09:14):
This is a good question, okay, and I think it
reflects the abysmal state of information on these things, right,
So I get that you're creating a will. A will
is instructions to probate court, okay. And the idea is
you want everything to go to your twenty five year
old daughter. You're giving her the life insurance, you're giving
(09:37):
her retirement funds, all the rest of it. This blanket statement,
I don't know what a blanket statement is. You could
do a deed that leaves her all the property, all
the property as well, but this is the sort of
thing that you know, you're in a mood, you finally decide, hey,
(09:59):
I'm going to take care business here, right, and you've
done the beneficiary doesing that which everybody tells you to do. Beneficiary,
it's the horriblest thing you could do. If you're going
to do some planning. And when I get back, I'll
explain it exactly why and especially why the retirement fund
traditional traditional IRA traditional four oh one K. The worst
thing you can do, absolute worst thing, horrible, cruelest thing
(10:21):
you can do to your kids is make them beneficiary
on the retirement plan account on the four to oh
one K traditional four to one K traditional IRA. It's
just it's just terrible, and everybody tells you to do it,
and it's just wrong. You should not. You should not
be doing that. We'll explain exactly why and when people
(10:43):
say should do a trust, you would do a will?
What's going on there? You've been listening to the David
Carrier Show. I'm David Carrier, your family's personal attorney.
Speaker 1 (10:53):
This hour of the David Carrier Show is pro bono,
so call in now at seven seven. This is the
David Carrier Show.
Speaker 2 (11:04):
Welcome back to the David Carrier Show. I'm David Carrier,
your family's personal attorney. Now we've got a back to
one of our Oh you can always call us six one, six, seven, seven,
twenty four, twenty four if you'd like to get your question,
comment or concern on the air. But we've got one
of these where why should I do a trust? I
(11:24):
put my kid as beneficiary on my accounts and not
good enough? Why isn't that good enough? You know that
kind of thing?
Speaker 1 (11:31):
Is it?
Speaker 2 (11:31):
Ah? You've got one daughter, my twenty five year old
soul beneficiary sum it's an only child and she's on
life insurance retirement. The kid's twenty five years old. Okay,
so mom dies and now a twenty five year old
gets whatever is going on here? Right? Gets a house
life insurance, retirement funds, and then a property home and
(11:54):
whatever else you've got also going to the kid boom
all at once. And that sounds like a good idea.
A lot of people like that idea that the kid's
going to get Oh, there won't be any probate, they'll
get it directly. Isn't that wonderful? Well, it's wonderful unless
the kid is a typical twenty five year old, kind
of screwed up in the head, not sure what they're
doing in life, not a lot of experience, you know,
(12:17):
kind of bumping into walls, and now all of a sudden,
your life savings clunks down on their head, right, and
who knows what they've been doing for the last twenty
you know what they've been doing. You know? Do they
have dad? Are they getting divorced?
Speaker 1 (12:32):
Is it?
Speaker 2 (12:32):
You know? All these things that happen, you know, And
here's the thing, if you want to believe, if you
want to say, oh, because that stuff would never happen
to my kids, right, I hear that a lot. Okay,
so let's pretend it with somebody else's kids. This stuff
all happens to the neighbors kids, not yours, because nothing bad.
Whatever happened to your kids, I understand. So this is
(12:54):
the neighbor's kids. Now we're talking about if you dump
money on somebody and that somebody owes money, then the
creditors can come against the money you just dumped on them.
And what people do routinely not in my practice, because
I won't. We don't do it that way. You see,
(13:15):
when you're doing an estate plan, you have such an
opportunity to do good things for the next generation, and
it's so frustrating to see the customary way. The customary
way is to ignore all the good that you can
do right and just do what everybody else does, which
is dump the money on the kids. It makes no
sense in my opinion. You've got this opportunity when you're
(13:39):
doing your plan to really provide well right, to make
sure that the assets that you've built up and you're
passing on, to make sure they don't get wasted. So
why do people waste what they've built up? Why do
they do? That? Drives you nuts? Drives me nuts anyway.
And here's the thing with the sole beneficiary. Everybody does
a beneficiary, it drives you. Here's the problem. Here's the problem.
(14:04):
If the kid owes money to somebody. If the kid
is vulnerable in any way, right legally vulnerable. Maybe they
have student loan debt, maybe they got divorced, maybe they're
behind on their cell phone bill. I don't know. Now
that money is accessible to the creditors. What you could
do instead, what I think you should do, absolutely instead,
(14:25):
is don't leave the kid the money. Don't leave the
kid the property. Leave the kid a trust, a trust,
a structure with the stuff in it. Now, you can
set these up so that the kid has one practical
control over the money. They have practical control over the money.
(14:46):
You want to spend it, spend it, you want to
invest it, invest it however you want to invest it,
however you want to go ahead, you want to kick
away the trust, and there's ways to do that. Okay,
there are ways to do that. But when you do
it that way, you've absolutely fireproofed the money against creditors,
against the kid's creditors. Now you say, well, you know,
(15:08):
if the kid's stupid enough whatever, you know, just absolutely
irresponsible to the nth degree. Okay, but you know what's
the worst that could happen. The worst that could happen
is the kid doesn't get the benefit of the inheritance. Right,
that's what everybody says. But this is the one way
what this person's doing here is the one way that
(15:29):
you can actually leave your kid in debt, create debt
for your kid. And it's the IRA has to do
with the IRA. Talked about this before. I'm talking about
it again because it is so it's so terrible. So
here's the thing. You leave your kid beneficiary on the
(15:52):
IRA traditional IRA traditional for one k okay traditional tradition,
tradition anyway, traditional. Okay. So, now what usually happens, and
I mean ninety plus percent of the time in my experience, right,
people will tell you, oh, no, the kids are stretching
it out over the ten years. Liars, No, they're not
(16:15):
that never shouldn't say never, never say never, right, That
hardly ever happens. Now, you would like to see that happen.
You would like to see the kids take it out
over time. The kids don't do that. They say, bird
in the hand is worth two in the bush, and
they empty then they empty the IRA, right, which means
they pay all the tax all at once. Okay, fine,
(16:37):
the kid did that to themselves. But here's here's the
real problem. Let's say the kids in debt, student loan, debt,
divorced debt, bankruptcy, COVID comes back, and again sixty percent
of small businesses get wiped out. Whatever it is, okay,
Now the kid finds themselves in debt and you made
them the beneficiary on your traditional ira. What that mean
(17:00):
means is that the traditional ira is now fair game
for the creditors. In other words, the creditors can come
and collect their money against the traditional ira. And typically
the traditional ira is the biggest chunk of money out there.
Right for most people, they got a house, they got
an ira, they got some savings and other investments, yes,
(17:23):
but the big assets are the house and the IRA,
and the IRA is already cash and they can just
throw the judgment against the ira. Boom, Now they get
the money. What does your kid get when they empty
the ira that you made them beneficiary on. Right, But
the kid does have student loan, debt or divorce whatever
(17:44):
it is, right, it has debt. Right, who pays the
income tax on the ira? Your kid? So you just
left your kid x hundred thousand dollars right, whatever it is,
he left them a bunch of money. Now the creditor,
the in law that you never liked. Whatever, they get
(18:05):
the money because of that was in their divorce settlement, right,
barb student loan, dad or cart whatever it is, right,
bad luck whatever. Right now the money is gone, the
IRA is gone, but the kid still owes income tax
on it. Are you with me on this? And you
could have prevented it. You could have saved the house
for the kid. You could have saved the IRA for
(18:26):
the kid. You had the opportunity, right, but nobody does
that mean we do that? But but I haven't seen
it somewhere else. I don't see people protecting the inheritance
for the kid. See, they all get, oh, my kid's
very responsible, my kids did this and that. Hey, I'm
not saying they're not. I'm not saying they're not. Your
(18:46):
kid's warm Buffett. I get it. That's wonderful, okay, But
if they're not, Warren Buffett, if the usual things of
life happened, they co signed your grandkids' student loans. Now
your grandkids a barista, mom and dad are on the hook.
Look incomes the IRA. Boom goes to the IRA. They
lose it, right, it gets for close and now they
(19:07):
get stuck with a tax bill. The Supreme Court case
that decided this is over ten years old, now, right,
you think people have finally figured this out. Apparently not,
because they keep saying, put your kids's beneficiary on the IRA.
Now on the wroth IRA. For what you get is
wroth IRA. They don't have to pay the income tax
(19:27):
because it's the WROTH, but they lost out on the
benefits of having a WROTH. And under the Secure Act
Secure Act too, there's all kinds of great stuff you
can do to protect it for your kids. They don't
have to lose any tax benefits. It's wonderful stuff. But
this is our letter writer, is kind of how people
(19:48):
think about it. It's really a shame and it's a wasted,
totally wasted opportunity to do really good things for your family.
So don't put your kids's beneficiary in the IRA. Much
better way to do. You've been listening to the David
Carrier Show. I'm David Carrier, your famili's personal attorney.
Speaker 1 (20:06):
David's got the how too you're looking for. Just call
seven seven four twenty four, twenty four. This is the
David Carrier Show.
Speaker 2 (20:16):
Welcome back to the David Carrier show. I'm David Carrier,
your family's personal attorney, powering through the inquiries that we've
got to make up for the first hour of philosophy.
How do we avoid six one six If you want
to have a question, you just want to ask it,
that'd be fine. You don't have to write in but
six one six, seven, seven four, twenty four twenty four.
(20:39):
That's sixty one six, seven, seven four twenty four to
twenty four. Get your question, comment or concern on the air.
How do we avoid our family's land from going to
probate after a parent passes. Dad has ten acres and
wishes to put property into living trust, so when he passes,
we his children do not have to worry about additional
taxes or editors. Ain't necessarily so, but also to prevent
(21:05):
anyone from losing the land or trying to sell it
in the future. All four of us adults live on
the property, and he has a will, but he knows
it's not enough to prevent it from going to probate. Well,
it explicitly doesn't avoid probate. It is probate. I mean
that's what a will is. A will is simply instructions
to probate court. Okay, that's all it is. But he
(21:26):
is retired. Financial assets minimum but sustainable for himself. But
we have lots of tools and farm equipment to consider,
plus two vehicles. I have some legal assistance through my job,
but I want to ensure I'm assive for the best
products for our situation. It ain't about products. You're not
buying something. Do you recommend revocable versus irrevocable living trust
(21:51):
for the land as it is the primary concern for
my father. He doesn't want it sold. Should we invest
in a full estate plan? Thank you in advance. Well,
we'll get right back to that. But we had Jim
on the line. Hello, Jim, Welcome to the David Carrier Show.
Speaker 3 (22:05):
Good morning, Thank you for taking my call. You bet
youa so Dad dies no proviate state. Dad was a
Medicaid recipient five years ago. Son wants to sell his
cottage and ooops, Dad's a tenant in common on the
(22:26):
cottage with son. My question is really twofold. One how
long does Medicaid Recovery keep their files open? And two
how would you determine at the time how big that
met forever? Okay? And how big? How can you determine
what the medicaid claim might be. Is their way to
way to find out how bad we'll be hurt if
they go ahead and sell.
Speaker 2 (22:48):
Yeah, sure, I mean the you should have gotten a
letter five years ago from DHHS, you know, making the claim.
They don't put the number in the claim, but they
do put you on notice that there is a claim
out there. How how is it that Dad became tenant
in common? Was that just how it was done or what?
Speaker 3 (23:11):
I really don't know. I'm without knowing, without being certain.
That may be a situation where he needed to be
on there for financing purposes, But.
Speaker 2 (23:21):
I mean, was it his cottage at the at the beginning?
Speaker 3 (23:26):
No, it's always been how that started. Yeah, yeah, I'm sorry.
I don't really have all those facts at my head hand.
Speaker 2 (23:36):
I guess you're not the sun then, no, I'm not.
So are you the grandson?
Speaker 3 (23:41):
No, I'm the lawyer for the son.
Speaker 2 (23:45):
Okay, all right, yes.
Speaker 3 (23:49):
I don't and I don't Medicaid will world like you do,
so figure you might have some insights.
Speaker 2 (23:55):
Okay, Yeah, what I would do? I mean, in a
situation like this, find out how he got on the
find out how he got on there. Okay, because if
you if you probate his half of it, right, yeah,
you gotta state recovery is going to whack you. And
it's not that hard to find out what it is.
(24:15):
Just you can ask the HHS, you know, find the
old case number and they'll they'll come up with a number.
That's the that's the unfortunate easy part. But what I
would be what I would be asking is how did
he get on there in the first place? And would
I be able to get would I be able to
do an action to determine interests in land? You know,
(24:38):
basically a quiet title saying that this was saying that
the the dad's ownership of the land was for convenience only,
that there was no donative intent, you know, that it
was that it was a joint tenancy gone bad. I mean,
you know, all the all the usual theories for transfer
(24:59):
of own ship or to deny ownership that would have
to do with that. Now, the good news on that
is that there's no you're not in probate court, right,
because that's that's what they guard that like a hawk. Right,
So if you're in probate court right right, But we're
not in probate court we're in circuit court, okay, and
we're just trying to determine are there any assets that
(25:22):
need to go through probate? And what we're saying is no,
there aren't because if the you know, if it's there,
even if it isn't there, it isn't there. You got
to bite the bullet, right. I mean, if it was
Dad's cottage and you put Sonny Boy on it and
Sunny Boy refinance it or something like that, Okay, Okay,
well you're screwed. That's just the way it is. You
(25:42):
got to pay your bills. But if there was something
else going on, if Sonny Boy meant to put that
on as a joint tenant, and it was always Sonny Boy's cottage,
right and Dad was just there to help with the financing,
if that, if it wasn't a real ownership, you see
now like when Dad did them did one of the
(26:02):
things you want to know is when Dad did the medicaid,
did he claim that as his homestead? I mean, how
did you get around how did they get around declaring
that as an asset at the time he applied for
the Medicaid? Did he have another house? And I get that,
you don't know all the facts, but these are the
questions you need to ask, right, Okay, well, because you
(26:23):
might be opening the Pandora's box of medicaid fraud, you know,
if if they didn't disclose the assets exactly.
Speaker 3 (26:29):
All right, yeah, well, good, thank you that that that
gives me. I really appreciate it.
Speaker 2 (26:36):
Sure, sure, but I would I would go after the title.
I try to figure out what the what the title,
what the state of the title is, and if you
got to pay you got to pay? And what the
medicaid You want to see the medicaid application. You want
to see the title history. How did all this? How
did all this come about? Because if that didn't have
another house, if that just was on there to lend
(26:58):
his credit report, you know, his credit rate something like that,
then you can go to circuit court do an action
to determine interest in land that never really had title
to the property. Blah blah blah blah. Right, and the
court is likely to go along with it because there's
no one on the other side. And if there is
no one on the other side, you quiet title to
the sun. Now you've avoided probate. Now there is no
estate recovery because it wasn't Dad's property. If it was
(27:20):
Dad's property, estate recoveries and it goes to probate, then
it's going to be appropriate. The state recovery be appropriate.
But that's where i'd be looking.
Speaker 3 (27:31):
That makes sense, great advice. Appreciate your help.
Speaker 2 (27:35):
Okay, Jim, take care all.
Speaker 3 (27:36):
Thank you.
Speaker 2 (27:37):
I betcha you're welcome. Sure. Now let's get back to
our email here. And the question is how do we
avoid probate when dad passes away? Because we've got a
piece of land here, we got the four adult kids
living on it. Now, this is a very common situation.
You say, well, that's pretty an odd situation for kids. No,
(27:58):
it's very much like the the cottage.
Speaker 3 (28:00):
Right.
Speaker 2 (28:01):
People have cottages and they would like all the kids
to continue to use the cottage, right, But you don't
want any one of them screwing it up. All right.
This is why you don't put kids on the deeds.
You got to see our last caller there, right, somebody
thought that this would be a good idea, always put
that on the deed. What the hell does put that
on the deed mean? Okay, it's simple. We just put
(28:23):
his name on there. Yeah, that part's simple. But look,
at the consequences years later, consequences you got to be
thinking about. Somebody's got to be thinking about this stuff.
And I almost guarantee you that it was the seller
or the mortgage broker. Somebody said, oh, just put your
dad's name on here, he's got good credit, and here
to there, and then we'll be able to get you
the financing. You know, there's a lady on the Federal
(28:45):
Reserve right now who's getting in trouble for playing fast
and loose with mortgage applications and stuff. Right. I mean,
this stuff can come seems like a good idea at
the time. I'm sure every bad thing seemed like a
good idea at the time, right, But it can come
back and bite you if you're not thinking about all
these consequences. And here with the family, the family farm,
(29:09):
that's what it sounds like. It's only ten acres, but
I guess everybody's living on it. There's enough le a
month ten acres, I suppose, And what's all the farm
equipment and lots of tools. Who knows. Maybe they own
some land next door. I don't know. But the point
is it's dad's property. He wants to get it to
the kids, so that it stays with the kids because
he doesn't want them selling it. Fine for this. For this,
(29:34):
you do a trust, and the trust is what owns
the property. None of the kids should be on the
deed to the property. Don't d ed it out to
the kids. For God's sakes. Don't dat it to all
four kids all at the same time. That would be insanity.
People do it all the time. I get it. It's customary.
(29:54):
I hate that word customary. Anyway, It's customary to do this. Everybody,
everybody doing it, do it doing it right? Well, bad idea.
Just because everybody's doing it doesn't make it a good idea, right,
it makes it a popular bad idea, I could. So
what you do is you do a trust and you
say all four kids can continue to use the property
(30:15):
beyond the property, no problem, that's okay. You can be
on the property, and here are the rules and regulations
for you to use the property. But none of the
kids has an ownership in trust in the property. The
property is owned by the trust under the rules of
the trust. That way, no one can take it away
and the kids can't mortgage it, and it won't impact
(30:38):
their own medicaid, their own creditor situation, marriage situation. That's
how you do something like this. That's the start of it.
And then implementation that's a whole nother that's a whole
nother hour show. You're listening to the David Carrier Show.
I'm David Carrier, your family's personal attorney.
Speaker 1 (30:56):
David's working and working and taking your calls. Now, this
is the David Carrier Show.
Speaker 2 (31:04):
Wellcome back to the David Carrier Show. I'm David Carrier,
your family's personal attorney. Now is the time to give
us a call? Sixty one six seven seven four twenty
four twenty four. That's six one six seven seven four
twenty four to twenty four. Actually, you should just go
to the website Davidcarrier Law dot com. That's David Carrier.
Like it sounds air conditioning people, except I'm not not
(31:27):
part of that family. Would I be doing this? Huh
No anyway, Davidcarrier Law dot com. Uh. And you know,
if you go to Davidcarrier Law dot com. We've got
a new AI bot on there. And I say it's new.
We've had it for a couple of months now, and
literally thousands of folks have taken advantage of it, asking
(31:49):
you questions, engaging with it, and actually it's it's it's
really very very useful. You know, most of these things
on the website, you see, it's all about, oh, you know,
leave us your name, your phone number, your blood type,
and we'll call you back. Maybe, right, That's not what
this thing is. It's not like that. It's very much
(32:11):
a give you a generalized answer, not a great answer,
not a not a specific legal advice type answer, but
an answer to your questions. Okay, so give it a try.
You might who knows, you might like it, but you
definitely will get and it'll talk to you too. I
(32:31):
mean you don't have to read it. Say you get
bad eyesight or whatever. You can click on the thing
that makes it talk to you. Then you can ask
it questions. It'll give you answers, right, not legal advice,
I'm to say that again, but steer you in the
right direction. A lot of these, a lot of these
questions that we get, the email type questions can be
(32:52):
answered at least in general by the AI, the artificial intelligence,
and it's all trained down my stuff. Right, So I
don't know that's a good thing. The people think, oh,
well good, it's trained on carrier stuff that's wonderful, or
maybe you prefer to be trained on somebody else's I
(33:13):
don't know. Anyway, it's try it on the website. You
can ask it about when the next meetings are, when
the next workshops are, that kind of thing. It'll very helpful.
And like I say, the people who've used and they've
been a couple thousand now who've used it, and the
response has generally been very very positive. So anyway, you
(33:34):
can do that if you do. If you do have
a question, now, one last email, is there something I
can do? And if so, what type of lawyer do
I need? My grandmother died ten years ago, diagnosed with
dementia Alzheimer's around two thousand and eight. All right, so
in seventeen years ago, my uncle and aunt, two of
(33:56):
her children were her caregivers. We recently found six d
granting her properties to them, back to her, and back
to them six different times. Finally, my uncle was left
as owner of one property, with him and my aunt
the other one. Okay, when she passed, we assumed that
that was her wish. She wanted to leave it to
her kids, although she always told us was for all
(34:18):
of her kids, but because they took care of her,
we didn't really question it. Okay, However, the other day,
the other day we found some boxes with the deeds
showing transfer of ownership back and forth, which made us
think there was some collusion or possibly elder abuse in
order to gain ownership of the properties. So anything we
can do about that. At this point, we have her
(34:40):
medical record showIn mental decline during those years. Well, number one,
it's almost impossible, you know, ten years later to prove
whether or even longer. I mean, this was seventeen years ago,
proving that somebody was mentally incapacitated to do the will,
all right, Whenever you look at those it's if you
don't have current information and you're doing it right now,
(35:04):
very very difficult to show. Lack of capacity, Were they comatose,
were they catatonic? If not, very difficult to show, or
if they'd been legally incapacitated at guardianship or conservatorship, so
legally their authority to make those decisions have been taken
away by the court, which is what happens with the
(35:24):
guardianship or conservatorship, right, then forget about it. I mean,
it's very difficult to prove that. But here's the more
basic question. The idea here is that because there were
all these deeds going back and forth and back and
forth and back and forth, that there was something nefarious
about that. I have to tell you, there's nothing more
(35:45):
common than thinking, rethinking, re rethinking, you know, playing games.
Was the grandmother playing games with your aunt and uncle,
you know, to encourage them? Did they have other things
going on and it's like, Oh, I'm we're going to
take the you know, take the property back from you.
Oh but now you can have it. Oh but now
you can't. You know, you got to look at what
(36:07):
was going on also with johns and uncles. Just thinking
about it for a couple of minutes, there's a million
different reasons why you would do this. Maybe one of
them was getting divorced. Maybe there was a bankruptcy. Maybe
they were afraid of getting divorced or afraid of it
and then there never was bankruptcy, are divorced. But maybe
they were afraid of other liabilities, you know why. Maybe
(36:30):
they were told to do it for for medicaid purposes. Okay,
there's just so many different things that could have happened.
And the bigger point, the reason I kind of like
this this question. The bigger point is in families, right.
You ever hear the expression truth is stranger than fiction, right,
(36:52):
Things people do things that if you read about it
in a book you would you would nord you know,
that could never happen like that. But real life is
stranger than that. Real life doesn't cohere. Real life just
is what it is, and we got to deal with
it on the hop. You just got to deal with
(37:14):
it every single day, you know. So the fact that
maybe grandma was playing games with aunt and uncle, you know,
in psychological games, who knows, maybe they were playing game.
Oh I don't want your stinking house here, and take
a deed back. It's like, oh no, please take that.
You don't know. And what happens, unfortunately, is things like this.
It's like, oh, there must have been some collusion, must
(37:36):
have been something awful going on. Most of the time,
there's nothing awful going on. Most of the time. What's
going on is just life. It's just the messiness, just
the inconsistencies, just the screw uppedness of life. Life is difficult,
Life is surprising. Life can be shocking. We wish it wasn't,
(37:57):
but it is. And the most improbable things happen, right,
you know, Sherlock Holmes was full of bologney. The world
doesn't work the way Sherlock. Oh, you you can't deduct
everything like that. It doesn't. People do the strangest thing
there was the TV show, wasn't it. People do the
strangest of kids. Kids do the darnedest things, right, Well,
(38:18):
they don't change when they get older. They're still doing
the darnedest things. You just don't know. So I wouldn't
presume bad things when you don't know that bad things
were happening. Go ahead and look into it if you can.
But the fact that there were all these deeds going
back and forth, it's weird, but it's not that weird,
and I would let it lie. And that's what I
(38:41):
in the absence of any other evidence that exploitation was
going on. No, I don't think there's anything here. It
doesn't pop out to me as if there would be anything.
All right, So you've been listening to the David Carrier
Show on David Carrier your Famili's First.
Speaker 1 (38:56):
You've been listening to the David Carrier Show. A lively
discussion address 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
(39:18):
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):
Hello, and welcome to the David Carrier Show. I'm David Carrier,
your family's personal attorney. Now is the time give us
a call. Sixty one six seven seven four twenty four
twenty four. That's six one six seven seven four twenty
four twenty four. That's right. Just as over the Labor
Day weekend and most holidays, we are we are live,
(00:43):
so you can actually call in and say, hey, you're
full of bologney and I say, that wasn't bolooney, it
was a pimento loaf. Anyway. Six one six seven seven
four twenty four twenty four. That's the number to call
if you'd like to get your question, comment, or concern
on the air. And that's you know, pretty much anything
you have a question coming or concern about. Of course,
(01:05):
we focus on state planning, long term care, medicaid, elder law,
blah blah blah, real estate, business law, all that good
kind of stuff. But welcome your call about any other topic.
That would be fine. So you know, you get you
get the first hour. Is it kind of a reset
(01:26):
in terms of what it is we do, why we
do it, Why it's okay for you not to go broke.
You know, why the system is as screwed up as
it is. There's reasons for everything. And the screwed up
system that we've got right now is not is not
by design. Okay, it's not on purpose, all right, people,
(01:47):
they're not trying to do this. It just kind of
worked out that way, all right. That's the that's the
problem with this stuff. You know, it'd be one thing,
it'd be one thing if they meant to do it
to you, right, well, it's not a question did they
mean to do it? It's a question of how does
it actually work and what can we do about it
(02:08):
given the system that we've got, all right, That's what
it is. It's like taxes. That's you know, you can
cry all you want about taxes there forever, and you're
going to keep on paying them, that's true. The only
question is how much do you have to pay within
the rules that they created? You see, you don't have
to go broke because of long term care. You don't
(02:29):
have to right, you don't have to pay for your
own medical care. I mean you can actually take advantage
of the thing that you paid for, and namely Medicare.
You can take advantage of that. It's possible to do.
Why aren't you? I don't know. I think you should.
So that's just where I'm coming from on that. One
six one, six, seven, seven four, twenty four, twenty four,
(02:50):
that's the number to call. Uh, this is a. This
is a This comes up a lot, especially these days.
Am I legally responsible for my husbands medical or Medicare
or Medicaid costs if we are legally separated? This year,
my husband and I became legally separated with court order.
We're each responsible for our individual personal debts going forward,
(03:13):
But the debt clause does not specifically mention, you know,
Medicaid long term care debt. I have enough assets to
cover all my elder needs, but my husband does not.
He will definitely need Medicaid to help cover his expenses,
including nursing home. One. Do we need to amend the
legal separation debt section to include Medicaid? Two? Will medicaid
(03:36):
look at my money and assets to help pay for him,
and will be included any look back? Is divorce the
only solution, thank you. Well, Look, if you're getting legally
separated as a medicaid strategy, right, well, you did it
all wrong. If you're getting separated because you don't like
each other, that's a different story, all right. If you
(03:58):
really got separated here, okay, well let me back up.
Marriage is marriage, Okay, that's how Michigan looks at it,
all right. If you're married. Doesn't matter that you're legally separated.
It doesn't matter that you have a prenuptial agreement, none
of that matters. Okay, you're what they call an asset
(04:19):
control group of two you both count, and fiscal group
of two. You both count, and they're gonna look at
your assets. They're gonna look at his assets in determining
medicaid eligibility for either one of you, as long as
you're married, Okay, they're gonna look at both. Now, that
doesn't mean that all of your assets have to be
(04:42):
subject to him. Okay, I mean they do kind of
when you're doing the application, but then within a year
right after what they call the presumed asset eligible period
right after he's on the Medicaid. Then they don't look
at your assets anymore. They don't want you to give
stuff away, but they're not. They don't care. You can
(05:02):
have an unlimited amount of income, unlimited assets, right, as
long as you're not giving stuff away, then that's okay.
You can stay married. Now, if you got separated as
sort of a divorced light like you were, you were
gonna get divorced, but you said, ah, let's not do
that for whatever reason. Okay, let's just uh, let's just
get separated legally separate. Okay, all right, but you are
(05:26):
going to count against each other for the medicaid that
is going to be you know, the money that you
think you saved for you, you're actually saved for both
of you. Right, But that doesn't mean that you have
to get divorced, okay, because what you could do if
you see so many people, so many folks, they married folks,
(05:51):
and our client, we never do divorce. Okay. Like that's
just sort of a bottom line. Medicaid planning is. Divorce
is not medicaid planning tool. You shouldn't get divorced. It's bad, wrong, stupid,
terrible for all kinds of reasons. Right now, if you're
already going to get divorced, well, okay, so get divorced.
(06:12):
Who am I to stop you? Right? Nobody. But but
if you weren't going to get divorced, then don't get
divorced because of medicaid because you don't have to, which
you can. We have too many tools to go in
and do a property settlement now, not the core, not
what you're talking about here, but do the qualified domestic
relations order. Right now, you're still going to count. But
(06:36):
that doesn't mean there aren't things that can be done.
We can still do things to rearrange assets, right so
that you're not going broke in the long term care,
but you're not getting divorced either, right, that's the point. Now?
Is this difficult stuff? Yeah, it's difficult stuff. Over the years,
(06:57):
I've gotten unbelievable, unfounded criticism for doing this kind of thing,
although the Court of Appeals upheld us, and now that
body of law is developing so that this is you
don't have to get to all these people get divorced
for no reason. Well, the reason is, oh, this is
how we got to get We got to get divorced
to qualify for the Medicaid. It isn't true. That is
(07:20):
not true. There are other things you can do. And
for most people, the tragedy of it is these people
have been together their whole life, right, and then they
read something somewhere, they heard something somewhere, and now they're
getting divorced because they think that's the only thing they
can do about it. Right now, if you're separated because
the marriage is over and all the red, Okay, don't
(07:41):
stay in a loveless relationship, you can't stand each other whatever,
go ahead and get divorced. I mean, who am I
to judge? Fine, right, go ahead, but do it for
that reason. Don't do it for the bad reason, oh,
that this is the only thing we can do. You know,
are on its magazine. This is probably ten years ago now.
They had a picture on the bay, you know, till
(08:04):
death or nursing Home, do us Part, and it was
all about getting divorced to qualify for the Medicaid. I
was like, it was outrageous. You don't have to get divorced. No,
you don't, we know, divorced. You don't have to do it, okay,
because there are other things that you can do, right,
there are the legal things that you can do. You
(08:25):
don't anyway if the letter writer doesn't like that, you know,
if you don't like each other, and you're going to
get divorced anyway, and the separation is just sort of
a way to you know, I don't know. I don't
know why you get separated without getting divorced anyway, except
for financial reasons, if that was the idea, Right, there's
other things that can be done. I guess that's my
(08:45):
bottom line on it. So, so don't be don't be
getting don't be getting divorced, would you please? All right,
let's get to another one. What is the benefit of
creating a trust? And what should be included in the
trust I am creating? Will my twenty five year old daughter?
Is this sole beneficiary? Eardier to have her listened as
beneficiary and life insurance retirement funds. I thought was to
(09:07):
do a blanket statement that property, home, all contents go
to her. But should I also create a trust and
what should go in the trust?
Speaker 1 (09:14):
Oh?
Speaker 2 (09:14):
This is a good question, okay, and I think it
reflects the abysmal state of information on these things, right,
So I get that you're creating a will. A will
is instructions to probate court, okay. And the idea is
you want everything to go to your twenty five year
old daughter. You're giving her the life insurance, you're giving
(09:37):
her retirement funds, all the rest of it. This blanket statement,
I don't know what a blanket statement is. You could
do a deed that leaves her all the property, all
the property as well, but this is the sort of
thing that you know, you're in a mood, you finally decide, hey,
(09:59):
I'm going to take care business here, right, and you've
done the beneficiary doesing that which everybody tells you to do. Beneficiary,
it's the horriblest thing you could do. If you're going
to do some planning. And when I get back, I'll
explain it exactly why and especially why the retirement fund
traditional traditional IRA traditional four oh one K. The worst
thing you can do, absolute worst thing, horrible, cruelest thing
(10:21):
you can do to your kids is make them beneficiary
on the retirement plan account on the four to oh
one K traditional four to one K traditional IRA. It's
just it's just terrible, and everybody tells you to do it,
and it's just wrong. You should not. You should not
be doing that. We'll explain exactly why and when people
(10:43):
say should do a trust, you would do a will?
What's going on there? You've been listening to the David
Carrier Show. I'm David Carrier, your family's personal attorney.
Speaker 1 (10:53):
This hour of the David Carrier Show is pro bono,
so call in now at seven seven. This is the
David Carrier Show.
Speaker 2 (11:04):
Welcome back to the David Carrier Show. I'm David Carrier,
your family's personal attorney. Now we've got a back to
one of our Oh you can always call us six one, six, seven, seven,
twenty four, twenty four if you'd like to get your question,
comment or concern on the air. But we've got one
of these where why should I do a trust? I
(11:24):
put my kid as beneficiary on my accounts and not
good enough? Why isn't that good enough? You know that
kind of thing?
Speaker 1 (11:31):
Is it?
Speaker 2 (11:31):
Ah? You've got one daughter, my twenty five year old
soul beneficiary sum it's an only child and she's on
life insurance retirement. The kid's twenty five years old. Okay,
so mom dies and now a twenty five year old
gets whatever is going on here? Right? Gets a house
life insurance, retirement funds, and then a property home and
(11:54):
whatever else you've got also going to the kid boom
all at once. And that sounds like a good idea.
A lot of people like that idea that the kid's
going to get Oh, there won't be any probate, they'll
get it directly. Isn't that wonderful? Well, it's wonderful unless
the kid is a typical twenty five year old, kind
of screwed up in the head, not sure what they're
doing in life, not a lot of experience, you know,
(12:17):
kind of bumping into walls, and now all of a sudden,
your life savings clunks down on their head, right, and
who knows what they've been doing for the last twenty
you know what they've been doing. You know? Do they
have dad? Are they getting divorced?
Speaker 1 (12:32):
Is it?
Speaker 2 (12:32):
You know? All these things that happen, you know, And
here's the thing, if you want to believe, if you
want to say, oh, because that stuff would never happen
to my kids, right, I hear that a lot. Okay,
so let's pretend it with somebody else's kids. This stuff
all happens to the neighbors kids, not yours, because nothing bad.
Whatever happened to your kids, I understand. So this is
(12:54):
the neighbor's kids. Now we're talking about if you dump
money on somebody and that somebody owes money, then the
creditors can come against the money you just dumped on them.
And what people do routinely not in my practice, because
I won't. We don't do it that way. You see,
(13:15):
when you're doing an estate plan, you have such an
opportunity to do good things for the next generation, and
it's so frustrating to see the customary way. The customary
way is to ignore all the good that you can
do right and just do what everybody else does, which
is dump the money on the kids. It makes no
sense in my opinion. You've got this opportunity when you're
(13:39):
doing your plan to really provide well right, to make
sure that the assets that you've built up and you're
passing on, to make sure they don't get wasted. So
why do people waste what they've built up? Why do
they do? That? Drives you nuts? Drives me nuts anyway.
And here's the thing with the sole beneficiary. Everybody does
a beneficiary, it drives you. Here's the problem. Here's the problem.
(14:04):
If the kid owes money to somebody. If the kid
is vulnerable in any way, right legally vulnerable. Maybe they
have student loan debt, maybe they got divorced, maybe they're
behind on their cell phone bill. I don't know. Now
that money is accessible to the creditors. What you could
do instead, what I think you should do, absolutely instead,
(14:25):
is don't leave the kid the money. Don't leave the
kid the property. Leave the kid a trust, a trust,
a structure with the stuff in it. Now, you can
set these up so that the kid has one practical
control over the money. They have practical control over the money.
(14:46):
You want to spend it, spend it, you want to
invest it, invest it however you want to invest it,
however you want to go ahead, you want to kick
away the trust, and there's ways to do that. Okay,
there are ways to do that. But when you do
it that way, you've absolutely fireproofed the money against creditors,
against the kid's creditors. Now you say, well, you know,
(15:08):
if the kid's stupid enough whatever, you know, just absolutely
irresponsible to the nth degree. Okay, but you know what's
the worst that could happen. The worst that could happen
is the kid doesn't get the benefit of the inheritance. Right,
that's what everybody says. But this is the one way
what this person's doing here is the one way that
(15:29):
you can actually leave your kid in debt, create debt
for your kid. And it's the IRA has to do
with the IRA. Talked about this before. I'm talking about
it again because it is so it's so terrible. So
here's the thing. You leave your kid beneficiary on the
(15:52):
IRA traditional IRA traditional for one k okay traditional tradition,
tradition anyway, traditional. Okay. So, now what usually happens, and
I mean ninety plus percent of the time in my experience, right,
people will tell you, oh, no, the kids are stretching
it out over the ten years. Liars, No, they're not
(16:15):
that never shouldn't say never, never say never, right, That
hardly ever happens. Now, you would like to see that happen.
You would like to see the kids take it out
over time. The kids don't do that. They say, bird
in the hand is worth two in the bush, and
they empty then they empty the IRA, right, which means
they pay all the tax all at once. Okay, fine,
(16:37):
the kid did that to themselves. But here's here's the
real problem. Let's say the kids in debt, student loan, debt,
divorced debt, bankruptcy, COVID comes back, and again sixty percent
of small businesses get wiped out. Whatever it is, okay,
Now the kid finds themselves in debt and you made
them the beneficiary on your traditional ira. What that mean
(17:00):
means is that the traditional ira is now fair game
for the creditors. In other words, the creditors can come
and collect their money against the traditional ira. And typically
the traditional ira is the biggest chunk of money out there.
Right for most people, they got a house, they got
an ira, they got some savings and other investments, yes,
(17:23):
but the big assets are the house and the IRA,
and the IRA is already cash and they can just
throw the judgment against the ira. Boom, Now they get
the money. What does your kid get when they empty
the ira that you made them beneficiary on. Right, But
the kid does have student loan, debt or divorce whatever
(17:44):
it is, right, it has debt. Right, who pays the
income tax on the ira? Your kid? So you just
left your kid x hundred thousand dollars right, whatever it is,
he left them a bunch of money. Now the creditor,
the in law that you never liked. Whatever, they get
(18:05):
the money because of that was in their divorce settlement, right,
barb student loan, dad or cart whatever it is, right,
bad luck whatever. Right now the money is gone, the
IRA is gone, but the kid still owes income tax
on it. Are you with me on this? And you
could have prevented it. You could have saved the house
for the kid. You could have saved the IRA for
(18:26):
the kid. You had the opportunity, right, but nobody does
that mean we do that? But but I haven't seen
it somewhere else. I don't see people protecting the inheritance
for the kid. See, they all get, oh, my kid's
very responsible, my kids did this and that. Hey, I'm
not saying they're not. I'm not saying they're not. Your
(18:46):
kid's warm Buffett. I get it. That's wonderful, okay, But
if they're not, Warren Buffett, if the usual things of
life happened, they co signed your grandkids' student loans. Now
your grandkids a barista, mom and dad are on the hook.
Look incomes the IRA. Boom goes to the IRA. They
lose it, right, it gets for close and now they
(19:07):
get stuck with a tax bill. The Supreme Court case
that decided this is over ten years old, now, right,
you think people have finally figured this out. Apparently not,
because they keep saying, put your kids's beneficiary on the IRA.
Now on the wroth IRA. For what you get is
wroth IRA. They don't have to pay the income tax
(19:27):
because it's the WROTH, but they lost out on the
benefits of having a WROTH. And under the Secure Act
Secure Act too, there's all kinds of great stuff you
can do to protect it for your kids. They don't
have to lose any tax benefits. It's wonderful stuff. But
this is our letter writer, is kind of how people
(19:48):
think about it. It's really a shame and it's a wasted,
totally wasted opportunity to do really good things for your family.
So don't put your kids's beneficiary in the IRA. Much
better way to do. You've been listening to the David
Carrier Show. I'm David Carrier, your famili's personal attorney.
Speaker 1 (20:06):
David's got the how too you're looking for. Just call
seven seven four twenty four, twenty four. This is the
David Carrier Show.
Speaker 2 (20:16):
Welcome back to the David Carrier show. I'm David Carrier,
your family's personal attorney, powering through the inquiries that we've
got to make up for the first hour of philosophy.
How do we avoid six one six If you want
to have a question, you just want to ask it,
that'd be fine. You don't have to write in but
six one six, seven, seven four, twenty four twenty four.
(20:39):
That's sixty one six, seven, seven four twenty four to
twenty four. Get your question, comment or concern on the air.
How do we avoid our family's land from going to
probate after a parent passes. Dad has ten acres and
wishes to put property into living trust, so when he passes,
we his children do not have to worry about additional
taxes or editors. Ain't necessarily so, but also to prevent
(21:05):
anyone from losing the land or trying to sell it
in the future. All four of us adults live on
the property, and he has a will, but he knows
it's not enough to prevent it from going to probate. Well,
it explicitly doesn't avoid probate. It is probate. I mean
that's what a will is. A will is simply instructions
to probate court. Okay, that's all it is. But he
(21:26):
is retired. Financial assets minimum but sustainable for himself. But
we have lots of tools and farm equipment to consider,
plus two vehicles. I have some legal assistance through my job,
but I want to ensure I'm assive for the best
products for our situation. It ain't about products. You're not
buying something. Do you recommend revocable versus irrevocable living trust
(21:51):
for the land as it is the primary concern for
my father. He doesn't want it sold. Should we invest
in a full estate plan? Thank you in advance. Well,
we'll get right back to that. But we had Jim
on the line. Hello, Jim, Welcome to the David Carrier Show.
Speaker 3 (22:05):
Good morning, Thank you for taking my call. You bet
youa so Dad dies no proviate state. Dad was a
Medicaid recipient five years ago. Son wants to sell his
cottage and ooops, Dad's a tenant in common on the
(22:26):
cottage with son. My question is really twofold. One how
long does Medicaid Recovery keep their files open? And two
how would you determine at the time how big that
met forever? Okay? And how big? How can you determine
what the medicaid claim might be. Is their way to
way to find out how bad we'll be hurt if
they go ahead and sell.
Speaker 2 (22:48):
Yeah, sure, I mean the you should have gotten a
letter five years ago from DHHS, you know, making the claim.
They don't put the number in the claim, but they
do put you on notice that there is a claim
out there. How how is it that Dad became tenant
in common? Was that just how it was done or what?
Speaker 3 (23:11):
I really don't know. I'm without knowing, without being certain.
That may be a situation where he needed to be
on there for financing purposes, But.
Speaker 2 (23:21):
I mean, was it his cottage at the at the beginning?
Speaker 3 (23:26):
No, it's always been how that started. Yeah, yeah, I'm sorry.
I don't really have all those facts at my head hand.
Speaker 2 (23:36):
I guess you're not the sun then, no, I'm not.
So are you the grandson?
Speaker 3 (23:41):
No, I'm the lawyer for the son.
Speaker 2 (23:45):
Okay, all right, yes.
Speaker 3 (23:49):
I don't and I don't Medicaid will world like you do,
so figure you might have some insights.
Speaker 2 (23:55):
Okay, Yeah, what I would do? I mean, in a
situation like this, find out how he got on the
find out how he got on there. Okay, because if
you if you probate his half of it, right, yeah,
you gotta state recovery is going to whack you. And
it's not that hard to find out what it is.
(24:15):
Just you can ask the HHS, you know, find the
old case number and they'll they'll come up with a number.
That's the that's the unfortunate easy part. But what I
would be what I would be asking is how did
he get on there in the first place? And would
I be able to get would I be able to
do an action to determine interests in land? You know,
(24:38):
basically a quiet title saying that this was saying that
the the dad's ownership of the land was for convenience only,
that there was no donative intent, you know, that it
was that it was a joint tenancy gone bad. I mean,
you know, all the all the usual theories for transfer
(24:59):
of own ship or to deny ownership that would have
to do with that. Now, the good news on that
is that there's no you're not in probate court, right,
because that's that's what they guard that like a hawk. Right,
So if you're in probate court right right, But we're
not in probate court we're in circuit court, okay, and
we're just trying to determine are there any assets that
(25:22):
need to go through probate? And what we're saying is no,
there aren't because if the you know, if it's there,
even if it isn't there, it isn't there. You got
to bite the bullet, right. I mean, if it was
Dad's cottage and you put Sonny Boy on it and
Sunny Boy refinance it or something like that, Okay, Okay,
well you're screwed. That's just the way it is. You
(25:42):
got to pay your bills. But if there was something
else going on, if Sonny Boy meant to put that
on as a joint tenant, and it was always Sonny Boy's cottage,
right and Dad was just there to help with the financing,
if that, if it wasn't a real ownership, you see
now like when Dad did them did one of the
(26:02):
things you want to know is when Dad did the medicaid,
did he claim that as his homestead? I mean, how
did you get around how did they get around declaring
that as an asset at the time he applied for
the Medicaid? Did he have another house? And I get that,
you don't know all the facts, but these are the
questions you need to ask, right, Okay, well, because you
(26:23):
might be opening the Pandora's box of medicaid fraud, you know,
if if they didn't disclose the assets exactly.
Speaker 3 (26:29):
All right, yeah, well, good, thank you that that that
gives me. I really appreciate it.
Speaker 2 (26:36):
Sure, sure, but I would I would go after the title.
I try to figure out what the what the title,
what the state of the title is, and if you
got to pay you got to pay? And what the
medicaid You want to see the medicaid application. You want
to see the title history. How did all this? How
did all this come about? Because if that didn't have
another house, if that just was on there to lend
(26:58):
his credit report, you know, his credit rate something like that,
then you can go to circuit court do an action
to determine interest in land that never really had title
to the property. Blah blah blah blah. Right, and the
court is likely to go along with it because there's
no one on the other side. And if there is
no one on the other side, you quiet title to
the sun. Now you've avoided probate. Now there is no
estate recovery because it wasn't Dad's property. If it was
(27:20):
Dad's property, estate recoveries and it goes to probate, then
it's going to be appropriate. The state recovery be appropriate.
But that's where i'd be looking.
Speaker 3 (27:31):
That makes sense, great advice. Appreciate your help.
Speaker 2 (27:35):
Okay, Jim, take care all.
Speaker 3 (27:36):
Thank you.
Speaker 2 (27:37):
I betcha you're welcome. Sure. Now let's get back to
our email here. And the question is how do we
avoid probate when dad passes away? Because we've got a
piece of land here, we got the four adult kids
living on it. Now, this is a very common situation.
You say, well, that's pretty an odd situation for kids. No,
(27:58):
it's very much like the the cottage.
Speaker 3 (28:00):
Right.
Speaker 2 (28:01):
People have cottages and they would like all the kids
to continue to use the cottage, right, But you don't
want any one of them screwing it up. All right.
This is why you don't put kids on the deeds.
You got to see our last caller there, right, somebody
thought that this would be a good idea, always put
that on the deed. What the hell does put that
on the deed mean? Okay, it's simple. We just put
(28:23):
his name on there. Yeah, that part's simple. But look,
at the consequences years later, consequences you got to be
thinking about. Somebody's got to be thinking about this stuff.
And I almost guarantee you that it was the seller
or the mortgage broker. Somebody said, oh, just put your
dad's name on here, he's got good credit, and here
to there, and then we'll be able to get you
the financing. You know, there's a lady on the Federal
(28:45):
Reserve right now who's getting in trouble for playing fast
and loose with mortgage applications and stuff. Right. I mean,
this stuff can come seems like a good idea at
the time. I'm sure every bad thing seemed like a
good idea at the time, right, But it can come
back and bite you if you're not thinking about all
these consequences. And here with the family, the family farm,
(29:09):
that's what it sounds like. It's only ten acres, but
I guess everybody's living on it. There's enough le a
month ten acres, I suppose, And what's all the farm
equipment and lots of tools. Who knows. Maybe they own
some land next door. I don't know. But the point
is it's dad's property. He wants to get it to
the kids, so that it stays with the kids because
he doesn't want them selling it. Fine for this. For this,
(29:34):
you do a trust, and the trust is what owns
the property. None of the kids should be on the
deed to the property. Don't d ed it out to
the kids. For God's sakes. Don't dat it to all
four kids all at the same time. That would be insanity.
People do it all the time. I get it. It's customary.
(29:54):
I hate that word customary. Anyway, It's customary to do this. Everybody,
everybody doing it, do it doing it right? Well, bad idea.
Just because everybody's doing it doesn't make it a good idea, right,
it makes it a popular bad idea, I could. So
what you do is you do a trust and you
say all four kids can continue to use the property
(30:15):
beyond the property, no problem, that's okay. You can be
on the property, and here are the rules and regulations
for you to use the property. But none of the
kids has an ownership in trust in the property. The
property is owned by the trust under the rules of
the trust. That way, no one can take it away
and the kids can't mortgage it, and it won't impact
(30:38):
their own medicaid, their own creditor situation, marriage situation. That's
how you do something like this. That's the start of it.
And then implementation that's a whole nother that's a whole
nother hour show. You're listening to the David Carrier Show.
I'm David Carrier, your family's personal attorney.
Speaker 1 (30:56):
David's working and working and taking your calls. Now, this
is the David Carrier Show.
Speaker 2 (31:04):
Wellcome back to the David Carrier Show. I'm David Carrier,
your family's personal attorney. Now is the time to give
us a call? Sixty one six seven seven four twenty
four twenty four. That's six one six seven seven four
twenty four to twenty four. Actually, you should just go
to the website Davidcarrier Law dot com. That's David Carrier.
Like it sounds air conditioning people, except I'm not not
(31:27):
part of that family. Would I be doing this? Huh
No anyway, Davidcarrier Law dot com. Uh. And you know,
if you go to Davidcarrier Law dot com. We've got
a new AI bot on there. And I say it's new.
We've had it for a couple of months now, and
literally thousands of folks have taken advantage of it, asking
(31:49):
you questions, engaging with it, and actually it's it's it's
really very very useful. You know, most of these things
on the website, you see, it's all about, oh, you know,
leave us your name, your phone number, your blood type,
and we'll call you back. Maybe, right, That's not what
this thing is. It's not like that. It's very much
(32:11):
a give you a generalized answer, not a great answer,
not a not a specific legal advice type answer, but
an answer to your questions. Okay, so give it a try.
You might who knows, you might like it, but you
definitely will get and it'll talk to you too. I
(32:31):
mean you don't have to read it. Say you get
bad eyesight or whatever. You can click on the thing
that makes it talk to you. Then you can ask
it questions. It'll give you answers, right, not legal advice,
I'm to say that again, but steer you in the
right direction. A lot of these, a lot of these
questions that we get, the email type questions can be
(32:52):
answered at least in general by the AI, the artificial intelligence,
and it's all trained down my stuff. Right, So I
don't know that's a good thing. The people think, oh,
well good, it's trained on carrier stuff that's wonderful, or
maybe you prefer to be trained on somebody else's I
(33:13):
don't know. Anyway, it's try it on the website. You
can ask it about when the next meetings are, when
the next workshops are, that kind of thing. It'll very helpful.
And like I say, the people who've used and they've
been a couple thousand now who've used it, and the
response has generally been very very positive. So anyway, you
(33:34):
can do that if you do. If you do have
a question, now, one last email, is there something I
can do? And if so, what type of lawyer do
I need? My grandmother died ten years ago, diagnosed with
dementia Alzheimer's around two thousand and eight. All right, so
in seventeen years ago, my uncle and aunt, two of
(33:56):
her children were her caregivers. We recently found six d
granting her properties to them, back to her, and back
to them six different times. Finally, my uncle was left
as owner of one property, with him and my aunt
the other one. Okay, when she passed, we assumed that
that was her wish. She wanted to leave it to
her kids, although she always told us was for all
(34:18):
of her kids, but because they took care of her,
we didn't really question it. Okay, However, the other day,
the other day we found some boxes with the deeds
showing transfer of ownership back and forth, which made us
think there was some collusion or possibly elder abuse in
order to gain ownership of the properties. So anything we
can do about that. At this point, we have her
(34:40):
medical record showIn mental decline during those years. Well, number one,
it's almost impossible, you know, ten years later to prove
whether or even longer. I mean, this was seventeen years ago,
proving that somebody was mentally incapacitated to do the will,
all right, Whenever you look at those it's if you
don't have current information and you're doing it right now,
(35:04):
very very difficult to show. Lack of capacity, Were they comatose,
were they catatonic? If not, very difficult to show, or
if they'd been legally incapacitated at guardianship or conservatorship, so
legally their authority to make those decisions have been taken
away by the court, which is what happens with the
(35:24):
guardianship or conservatorship, right, then forget about it. I mean,
it's very difficult to prove that. But here's the more
basic question. The idea here is that because there were
all these deeds going back and forth and back and
forth and back and forth, that there was something nefarious
about that. I have to tell you, there's nothing more
(35:45):
common than thinking, rethinking, re rethinking, you know, playing games.
Was the grandmother playing games with your aunt and uncle,
you know, to encourage them? Did they have other things
going on and it's like, Oh, I'm we're going to
take the you know, take the property back from you.
Oh but now you can have it. Oh but now
you can't. You know, you got to look at what
(36:07):
was going on also with johns and uncles. Just thinking
about it for a couple of minutes, there's a million
different reasons why you would do this. Maybe one of
them was getting divorced. Maybe there was a bankruptcy. Maybe
they were afraid of getting divorced or afraid of it
and then there never was bankruptcy, are divorced. But maybe
they were afraid of other liabilities, you know why. Maybe
(36:30):
they were told to do it for for medicaid purposes. Okay,
there's just so many different things that could have happened.
And the bigger point, the reason I kind of like
this this question. The bigger point is in families, right.
You ever hear the expression truth is stranger than fiction, right,
(36:52):
Things people do things that if you read about it
in a book you would you would nord you know,
that could never happen like that. But real life is
stranger than that. Real life doesn't cohere. Real life just
is what it is, and we got to deal with
it on the hop. You just got to deal with
(37:14):
it every single day, you know. So the fact that
maybe grandma was playing games with aunt and uncle, you know,
in psychological games, who knows, maybe they were playing game.
Oh I don't want your stinking house here, and take
a deed back. It's like, oh no, please take that.
You don't know. And what happens, unfortunately, is things like this.
It's like, oh, there must have been some collusion, must
(37:36):
have been something awful going on. Most of the time,
there's nothing awful going on. Most of the time. What's
going on is just life. It's just the messiness, just
the inconsistencies, just the screw uppedness of life. Life is difficult,
Life is surprising. Life can be shocking. We wish it wasn't,
(37:57):
but it is. And the most improbable things happen, right,
you know, Sherlock Holmes was full of bologney. The world
doesn't work the way Sherlock. Oh, you you can't deduct
everything like that. It doesn't. People do the strangest thing
there was the TV show, wasn't it. People do the
strangest of kids. Kids do the darnedest things, right, Well,
(38:18):
they don't change when they get older. They're still doing
the darnedest things. You just don't know. So I wouldn't
presume bad things when you don't know that bad things
were happening. Go ahead and look into it if you can.
But the fact that there were all these deeds going
back and forth, it's weird, but it's not that weird,
and I would let it lie. And that's what I
(38:41):
in the absence of any other evidence that exploitation was
going on. No, I don't think there's anything here. It
doesn't pop out to me as if there would be anything.
All right, So you've been listening to the David Carrier
Show on David Carrier your Famili's First.
Speaker 1 (38:56):
You've been listening to the David Carrier Show. A lively
discussion address 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
(39:18):
visit Davidcarrier law dot com.
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