Episode Transcript
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Speaker 1 (00:02):
You're tuning in to
the Elder Law Coach podcast, the
definitive resource forattorneys delving into the world
of Elder Law, with your host,todd Watley, a certified Elder
Law attorney, past president ofthe National Elder Law
Foundation and renowned coachwith a quarter-century of
specialized experience.
Whether you're an establishedattorney looking to refine your
(00:24):
expertise or an emerging lawyerseeking a successful foray into
elder law, this is yourmasterclass.
Now let's get started with theluminary in the field.
Here's Todd Watley.
Speaker 2 (00:37):
That's right.
This is the Elder Law Coachpodcast and I am so thankful
that you are joining me.
I appreciate everybody whodownloads every single episode
we get, and today I'm superexcited.
I'm not here by myself, thankgoodness.
Speaker 3 (00:51):
Ooh, hello, hello.
Speaker 2 (00:53):
I have a guest and
her name is Samantha Shepherd
hey.
Speaker 3 (00:56):
Samantha.
Hello, I'm very happy to behere.
It's wonderful to be inArkansas.
Speaker 2 (01:01):
Yeah, it is beautiful
, and particularly today.
We're recording this in lateFebruary and it's actually kind
of warm here, so it is beautiful.
If you don't know Samantha, andif you know anything about
Elder Law, you've probably heardof Samantha Shepherd.
She's a big wig in the country.
Speaker 3 (01:17):
Oh, not true, but
thank you.
Speaker 2 (01:19):
She speaks a lot and
she is a certified Elder Law
attorney, just like me.
But the reason she's here todayprimarily is because she has
created a trust company and I amsuper excited about it.
I'm so excited that I amworking with her on that and
trying to promote this, and so,yes, there is some promotion
(01:42):
here today, but I am superexcited that someone with the
heart and knowledge of acertified Elder Law attorney has
created a trust company.
It just seems like a beautifulmix to me, Thank you.
Speaker 3 (01:56):
Am I allowed to tell
them the history?
Yes, please, okay.
Well, I was in a group of ElderLaw attorneys in an embassy
suites in Texas and they werebanging around ideas about
whether or not individuallawyers could serve as trustees
and should serve as trustees.
(02:17):
So the thought the seed waskind of planted with me.
I went back home to my office,serendipitously in walks, a
special needs gentleman who isnot really popular with his
sister, mom and dad have passedaway.
They've left him a milliondollars.
Wow, wouldn't that be nice?
(02:37):
Yeah, but the sister reallywants no part.
So at that point I am thinking,gosh, how interesting it is
that I had this group of nailerfriends who were telling me all
about individual attorneysserving as trustees.
Maybe he'll be my guinea pig.
And I literally had two othersthat were teed up at that same
time that were one of them was asole benefit trust, an
(02:58):
individual lady in a nursinghome.
We were able to get her instantMedicaid eligibility because
her daughter had a disability.
We get her Medicaid by takingall the assets that she had,
putting it in a sole benefittrust.
And who was there?
To serve no one.
So Smith's Shepherd Fool.
I really did feel a little bitlike I was taking on something.
(03:19):
So I took on those and itturned out I had about a dozen
of them and my own let's say age, my own thoughts about the
future.
One of them was coming througha court, so it was a birth
injury, it was over, it wasclose to $2 million.
That was coming in to lookafter an individual who had been
(03:41):
purportedly hurt during birthand well, so if I took that on,
I couldn't stay there forever.
So it just made me think aboutthe future, not just me serving,
but beyond my life.
So I started researching theidea of what a corporate trust
entity would look like, how onecreates one and strap on your
(04:04):
seatbelt.
It's a lot of work, a lot ofhoops and a lot of money, and
some states really don't wantyou to do it, so they make it.
So you can't open one without$10 million.
Speaker 2 (04:17):
That's ridiculous.
Yeah, that's ridiculous so.
Speaker 3 (04:19):
Kansas was not that,
but when they they required
residency.
So I was only able to start ashort trust because I live in
Kansas.
But now I have, with this trustentity, authority to transact
business in all 50 states, whichis a great thing.
So I have been learning on thefly by setting this entity up,
(04:40):
it was approved.
I got the green light in themiddle of COVID Fantastic timing
, Wow.
So you'll love this.
I have four sons Andrew, Adrian, Alexander, Ashley, all ACE,
all born in June.
Assured trust and A namepurposely because of those boys
with their A's, and it wasapproved in June.
What do you think of that?
Speaker 2 (04:59):
Wow, hatch it
straight.
Did you plan that?
No, not at all.
Speaker 3 (05:03):
Neither were their
births planned to be in June.
I mean, really not that kind.
Speaker 2 (05:09):
You're not that, I'm
not quite like that.
Okay, interesting.
Speaker 3 (05:12):
Lovely children,
lovely trust company.
So I got that approval to openassured and the Frank.
Frankly, the first year we werein such, I would say all of us
probably fairly in the worldwere traumatized by COVID.
But we were in the law firmsetting.
I was paralyzed, thinking Icouldn't pay people and how
could I run my law firm.
(05:33):
So my intentions were verydivided.
I had no interest really indoing anything with the short
trust for that first yearbecause I was just trying to
doggy paddle as hard as Icouldn't keep Shepherd law going
.
So Shepherd's doing its thingcoasily and then this happens in
an elder law practice.
You see these sole benefittrusts.
You see the D4A's, you know thefirst party special needs trust
(05:55):
that come in without acorporate fiduciary or with a
corporate fiduciary that willonly step up if there's a
million bucks or two millionbucks, or 2.5.
I was telling you this summer.
A big player in Kansas City,commerce Bank, says their
minimum fee is $27,000 a year.
So that's basically a two and ahalf million dollar threshold.
(06:17):
So for special needs, if it's asettlement, okay, you can see
those.
But what if it's just mom anddad trying to set up a third
party trust?
Leave their kid a little bit ofterm insurance and they think
their $500,000 is a lot.
Well, it's hard to find acorporate trustee.
We had a chat earlier, you andI, about why a corporate trustee
is better than a person.
And have you, have you, boughtinto that?
Speaker 2 (06:41):
Yes, yes, I mean
particularly.
I mean we.
We did the radio show thismorning.
I think all of my listenersknow that I do.
One in this sweet little ladycalled in, you know, saying I
don't have much and I think mydaughter's the trustee, but I'm
not sure, and it it would justbe so much easier if she had
named you as the corporatetrustee.
(07:02):
You know exactly what to dowhen she dies.
It's like, yeah, we get to workand we can do this.
She was worried that herdaughter no more and she was
like who's gonna do it then?
If it is my daughter, I'm notsure she actually knows what to
do.
Speaker 3 (07:14):
Of course, they don't
know what to do.
Most lawyers don't know how todo trust administrations and
most elder attorneys don't.
We help in crisis planningoften.
So the trust administrationit's more paperwork and you're
dealing with people less.
You know.
We love elder attorneys usuallylove interacting with people.
Trust administration is morebookkeeping and tax work and is
(07:36):
a certain skill set and assuredpick set up.
We just get to work over there,and when I say we, it's not me,
that that is not my love.
I love people and I lovetelling them that assured trust
is their solution.
But we have a team and in thatgroup, assured trust, someone is
going to hold their hand, makesure the taxes are done by, by
(07:57):
the right deadlines and all theright eyes or dotted T's are
crossed and the peace of mind.
This poor little old woman youwere right she has no idea if
her bank account is titled inher name, in the name of the
trust, or if it has a transferon death, because that's normal.
Speaker 2 (08:13):
It's very common well
and it came to, came later in
that phone call that she's myclient.
She thought that was hilarious.
She saw not me but one of myassociates in the other firm and
I have now agreed to startbeing more involved in funding
(08:33):
for that very reason, becauseshe's like I just don't know
well, we need to make sure, andso I've taken that on in my
office as being now.
I will help clients do funding.
Speaker 3 (08:44):
I will charge for
that.
Speaker 2 (08:50):
I haven't decided
that yet.
Speaker 3 (08:52):
I think the answer
should be yes, but perhaps
that's a topic for another day.
Speaker 2 (08:56):
Yeah, that's, but I
mean I think I charge enough.
I'm probably at the higher endof the market and I think I
think we could probably absorbthat.
I mean, I want to make surethat it's funded Okay, and my
thought right now is that'lljust be part of the fee.
Speaker 3 (09:14):
I understand.
I think that I have seen thatmodel work effectively, but then
the price has to be modified.
It is work.
You have to collect all of thefinancial data and walk it
through banks, which meansgetting a limited power of
attorney or some kind of yeah,and then be careful still.
I would counsel others.
(09:35):
Be careful that you ensure thatyou have something in writing
that you're not assumingresponsibility.
You're not liable for thefailure to adequately fund or
the bonds or stock that theydidn't tell you about, or the
mineral interest, or the landsomewhere upon the hill.
Speaker 2 (09:53):
Yeah, we're still
trying to figure that out
exactly, but I mean, that's notthe topic of today's today's
corporate trustees, right andtrustees, and when you need one
and when you don't need one.
So help us explain to clientswhen we bring up.
You know they're not sure whoto do it.
I might appoint all three of mykids as trustees, or you know
they're doing something that weknow is a bad idea.
(10:15):
Yeah, give us some talkingpoints about what we can say to
clients to get them to name asure trust as their success or
trustee.
Speaker 3 (10:25):
Well, first tell them
how much is involved in terms
of work, that it isn't an honoror a privilege to be a trustee,
right, and the idea of namingthree children to act as co
trustees it's.
You know, it's often difficult,if not impossible, to dissuade
a family from that.
So what we can do then is sayhow about we name the child as
(10:49):
co trustee with the bank?
In our case we're not a bank,so how about co trustee with the
trust company?
And that's more palatable,because mom has determined,
foolishly or not, that her childwould be hurt if she did not
choose to name him as trustee.
And so sometimes there are sometrusts.
(11:10):
So you might say, for example,how about you name a corporate
entity with your child so thatthat corporate entity can do the
work and your child can overseeor have the opportunity to
terminate the trustee if they'renot doing a good job?
They like that.
So that's a good way to getyour point across.
But sometimes they literallyjust ask I'm sure you get this
(11:33):
who should I name?
Now, if I am the draftingattorney, I personally have to
say right, then pause.
I have to explain to you that Iwear two hats.
This is a potential conflict ofinterest that I need to
disclose and explain to youthoroughly before we go any
further.
I am your lawyer and I have atrust company that I started.
(11:55):
Do I think it's a good optionfor you?
Of course I do, but you mightneed independent counsel and
this piece of paper I'm puttingin front of you says you should
have this looked atindependently to make sure that
a sure trust is the right optionfor you.
So, telling a family number one,you need a trust because you
(12:16):
have $100,000 in a house or youhave multiple beneficiaries.
One of them could have a death,disability or there's some
complexity in your familydynamic.
They've just swallowedsomething new.
You need a trust and they won'tunderstand, like your lady, how
to get things titled in thename of the trust.
Do I go to my bank?
I only have historicallyhandled LLCs.
(12:39):
I do assignments and realestate.
I do the deeds to get the houseor other property.
Okay, so then I do schedule athree year automatic follow up.
I will see you in three years.
Now I simply send a notice,which a good 50% of them
disregard because they knowthey're going to have to go in
see the lawyer pay a fee, and atthe time that they do come in,
(13:01):
the other 50% the focus is onshow me what money you have now,
show me that you have funded itproperly and have there been
any significant changes in yourlife.
Now we've had the Secure Act,so we've had major legal reasons
to change most documents thatso many of our clients have IRAs
, 401ks, that inevitably that'senough of an impetus to do a
(13:23):
restatement or an amendment.
So if you're going to look atyour watch, that tells me I'm
talking too much, you tell me ifI'm going too far.
Speaker 2 (13:30):
I just got notified
of something.
Speaker 3 (13:32):
So no, you're fine.
Okay, he's a multitasker.
So now you've got the familiesconvinced that they need a
vehicle to avoid probing.
So most of my people are notdoing tax planning, they're just
doing life simplicity.
Life simplicity means get atrust.
It's going to go in equalshares and it'll flush right out
to those three kids unless andthe unless is really important
(13:55):
Unless there's a divorce, unlessthere's a disability, unless
there's a death.
And now the money's going tothe children of your children
and they are minors.
So then you need that trust tostep in and pick them up at
those very stages, and that'swork.
So I had a young woman come in.
Unfortunately she passed ofcancer very young.
She had no children.
(14:16):
She had no spouse, no childrenand a sister she wanted to leave
the money to and she said mysister's married to a loser.
I'm just being blunt this iswhat she said.
I don't like him, I don't carefor him.
He manipulates her, so I can'tgive her this money outright.
Besides, she'll mingle it withhim and then they'll divorce.
So she wanted it to be held ina trust for a long time and she
(14:41):
wanted someone else to be incharge of doling out this money.
So the sister couldn't yeahsomebody else to say yes or no.
She didn't think her own sistershould be pressured by having
to say yes or no and there'spressure.
So if your sister in thisscenario gets the husband saying
(15:01):
honey, we need, we need threecars, we need a new XYZ Boat.
Speaker 2 (15:09):
We need a boat.
Speaker 3 (15:11):
We need a boat, so
you want to cause marital
friction?
No, an independent corporatetrustee, I've learned.
Independent means severalthings.
Corporate trustee usually meansnon-human.
Some states have theseprofessional trustees, which I
find are interesting becauseoften they are lawyers, but we
(15:34):
are like a bank, but we don'tbank.
I've also found that most bankshave trust companies, almost
all of them in Kansas.
So there's a handful in mystate where there's a trust
company that operates on its ownand those, historically, were
formed because they weremanaging money.
Here's the fun part aboutassured we let people keep the
(15:55):
money wherever they want.
Speaker 2 (15:57):
So here's a practice
tip for you guys If you're
working with a financial advisorwho has had that experience
where his client named the localbank as the trustee at that
person's death, that advisorlost the money.
The money went to the bank tobe in their investment accounts
(16:19):
for the bank's investmentaccounts, so that the bank could
be the trustee.
Speaker 3 (16:23):
Pause, if I may.
I'm less worried about thedeath for that advisor than what
we deal with every day theincapacity Sure.
Okay, yeah, that's true.
So here's grandma, who's workedwith local financial advisor
for 40 years.
She gets to mention the trustnames Arvest Bank and Bye Bye
(16:45):
Financial Advisor when we needdecision making about does she
need to sell the house?
Does she need independentassisted?
They don't know the differencebetween memory care and
long-term care, so assured trusthas made that its business.
We focus on often the specialneeds population and then those
who need a helping hand, whichare typically these seniors in
the crisis time.
Speaker 2 (17:05):
So your marketing
plan you attorneys that they're
listening to this can be hey,financial advisor.
If you send clients to me, I'mgoing to recommend assured trust
, and assured trust will stilluse you as the financial advisor
.
Speaker 3 (17:20):
That's exactly right,
and it's a limited number of
options that financial advisorshave.
Almost all, almost all trustcompanies manage money.
Also, they don't tell you that.
We don't understand that asconsumers or lawyers.
So if you just name so, forexample, who would know that
about Arvest Bank?
You don't look at a bank andthink, ooh, they manage money.
(17:43):
If we name them as a trustee,they'll be in charge of the
taxes and the distributionschedule and oh.
So if the money's invested inthe local wonderful broker I've
used forever, it's gone.
It's gone to Arvest or whomeverRight.
Speaker 2 (18:01):
And I know a lot of
investment companies the
household names named companiesthat invest money.
They have a trust department.
Speaker 1 (18:12):
And so.
Speaker 2 (18:13):
I've gotten paperwork
from like Edward Jones to say,
hey, here's the language, ourtrust department.
You wanna talk about animpersonal?
I have no idea who's going tobe my trustee type person.
Speaker 3 (18:26):
Let's specifically
talk about Ed Jones.
Ed Jones I didn't know thatthey had a very active presence
here, but they do have an activepresence in Missouri and Kansas
Trust company.
Ed Jones Trust company isphysically located in St Louis.
That is where its trust officesare and that is the only venue
where the trust officers reside.
(18:47):
They will not handle any trustthat is under a million and I
believe their threshold forspecial needs trust is 2 million
.
I could be incorrect on that,but that's trusts that are under
a million.
I have Ed Jones advisors whoare telling me help because this
is only a $300,000 trust butit's very important to this
(19:10):
beneficiary.
It's not uneconomical, as theterms of the trust say, but no
one's willing to step up forthese smaller amounts.
Speaker 2 (19:19):
True.
So just to practice it, talk toyour financial advisors who
refer folks to you and say hey,if you'll send me your trust
business, I can make sure thatyou'll be the financial advisor
for the rest of this person'slife, and possibly even to the
kids it's business continuationfor them.
Business continuation yeah.
Speaker 3 (19:40):
So sometimes these
financial advisors are trying
very hard to get the kids in andin front of them so that they
can have a relationship, butthey are not aware that getting
the kids in and getting theirrelationship is not going to
help.
If there's another entity namedas trustee, it's too late.
Speaker 2 (19:56):
It's too late.
Too late.
So telling people I wasn'tsurprised by this, but I am
pretty close with you and I knowwhat y'all do.
But on the radio show thismorning you mentioned a typical
day for one of your advisors.
(20:18):
So let our listeners know whatyour advisors do specifically
and how intricately involvedthey are with your customers.
Speaker 3 (20:29):
Okay, I think very
few of us understand this.
We set up the trust and we'redone, and we don't have any
knowledge because we've neverworked as trust officers,
because most trust officers arenot attorneys or if they are,
they're not practicing law.
So a typical trust officerthat's the ubiquitous term we
call us trust and care officers.
But trust officer is thisubiquitous term across the trust
(20:49):
industry, and they aretypically given a what is called
a book, and your book is basedon, typically, dollars, and so
you might be given, let's say, ahundred million, or you might
be given 150 relationships, andso you're in charge of 150
people.
So if just think what your lifeis like, typically you're
(21:11):
reactive 150 people.
You're going to get 10 phonecalls a day.
You're going to get 15 phonecalls a day If there's a
calamity in the market.
You're going to get 50 emailsso they're not wired, programmed
or directed to get on the phoneand say hey, todd, how are you
doing today?
I'm a little worried about you.
(21:31):
We're gonna send out a nurse tojust check on you because it's
been a while, or there's no onefrom.
We have a care team.
It's this wonderful conceptthat we have some volunteers and
we have some sort of peopleworking that are happy to go and
sit at the movies and eatpopcorn with some of our special
needs beneficiaries.
(21:52):
Quite literally, that's cool.
So yeah, if you live in a grouphome and you are happy in your
life, your distant sister, who'sthe trustee living out of state
, thinks well, you know, shelives in the group home, she
doesn't need anything, she'swrong.
If mom were in town, what wouldmom be doing?
So mom would be taken out tothe movies, mom would be running
it through Wally World andpicking up a video.
(22:13):
That isn't mandatory but itmakes life better, excuse me.
So a trustee's job should bemore than reactive.
It should be more than I'mgoing to send you income
distributions every quarter.
It should be how can I makeyour life good?
(22:34):
And sometimes that means a tripto Branson, right, and then I
got to pay a caregiver becauseyou're all kinds of needy
walking around Branson.
Sure, but that's why I leftthat money.
Speaker 2 (22:43):
Okay, yeah, and so
your people are actively
involved.
They pick up the phone and call.
Speaker 3 (22:49):
They pick up the
phone and call.
They've not heard from them.
Speaker 2 (22:51):
They show up, they
arrange transportation.
They're to me.
That's what a trustee should bedoing, is they're being paid to
care for this.
Not care for them, but to beobservant of this person and
provide what this person needs.
Speaker 3 (23:07):
In a special needs
context.
It's not happening.
It's absolutely not happening.
What we as lawyers are oftenfinding I'm sure that all
listening to this podcast willagree is you're getting phone
calls from friends, colleaguesor other trust officers in your
town saying, hey, I've got a guywho's getting social security
(23:27):
and I want to know if I'mallowed to give, if I'm allowed
to give him cash.
And the hair on the back of myneck is sticking up and first I
say, well, what kind of benefits?
Well, I don't know.
It's social security, is it SSIor is it SSDI?
How will, how will I know?
Now, this is the trust officerwhose job it is to manage the
(23:53):
distributions we call thesedistribution, to basically
decide what we are spendingmoney on.
And they don't have a specialneeds expertise.
That's okay, because we've beenhelping them.
But this unrest that wasgrowing in me, todd, that it
wasn't right.
I had a well, it was formerlyBank of America trust company
(24:13):
wrote a $25,000 check to a womanwho lived in HUD and got
Medicaid.
Speaker 2 (24:19):
Oh God.
Speaker 3 (24:19):
What happened she
lost.
She was excited to get thatmoney.
She had never seen anythinglike that in her life.
She celebrated all the wayuntil the end of the month.
Now, at the end of the month,that 25,000 was gone and she was
no longer HUD eligible and shehad lost her SSI.
So thank you, bank of America,and I'm very glad you're not in
(24:41):
the trust business anymore.
Wow, interesting.
So that's one of the reasonsthat assured trust came into
being, because we would seethese special needs trust that
were in just grave danger andoften did result in Medicaid
ineligibility.
I have a local bank that wasgiving cash willy-nilly as the
(25:05):
beneficiary asked for it.
You can't do that.
We all elder attorneys know nocash.
Speaker 2 (25:11):
No cash.
No cash, no cash.
Wow, okay, all right.
So I try to keep these under 30minutes and we're at 25,
basically.
So anything else you think ourlisteners need to know?
Speaker 3 (25:25):
Okay, Five minutes is
all you're giving me to tell
them Everything they might wantto know about a corporate
trustee.
How about this?
At minimum, when the family isreticent to name a corporate
trustee, name them as acontingent or the successor so
that if the person named as thetrustee feels overwhelmed
(25:45):
because it's a job, that thereis a named corporate entity as a
backup, If you name assuredtrust as a backup, you don't
have to pay a penny.
But they do go on some listsand those educational material
and some reach out happens fromassured trust.
Know that we are open toeducating the lawyers about so
(26:07):
that you go back to your clientand can feel well versed about
what's an acceptabledistribution.
So we're here to help.
Speaker 2 (26:14):
Okay, I've done this
twice and it's worked both times
.
Well, not, it worked.
I said, if you have questions,here's the number call, assured
trust.
They've called and I think bothof them spoke to Evie I spoke
to one as well.
Speaker 3 (26:27):
Was that a third?
Okay, yes, that's right, that'sa third one.
Speaker 2 (26:32):
And every one of them
has said absolutely, let's use
assured trust.
And so if they have questions,if they, if, as you said, if
they are reticent, give them thenumber, have them call and talk
to y'all.
You'll answer the phone, notyou, but someone will answer the
phone, someone will talk andeveryone that I have seen has
(26:55):
said oh yeah, they're goodpeople, I like them, let's use
them, and so I have found greatsuccess with that and I would
encourage all of y'all.
If you have someone that isthinking about it and once a
corporate trustee, I woulddefinitely recommend assured
trust.
Speaker 3 (27:12):
Well, I thank you for
having me.
I appreciate it, you're welcome.
Speaker 2 (27:15):
I'm not going to ask
you the phone number.
Speaker 3 (27:17):
So you think I gave
away the mints?
Speaker 2 (27:21):
The phone number will
be in the notes, the show notes
.
Speaker 3 (27:25):
I will give you a
link, but it is assured trust
company A-S-S-U-R-E-D,trustcompanycom, and you can
type all that one word in once.
Speaker 2 (27:34):
So it's not CO, it's
C-O-M-P-A-Y.
It's the whole thing Okay typethe whole thing easy website,
but I will put those notes.
I will put that information inthe show notes so you can just
click on that.
But I like it.
I like what she's doing.
She is a very good elder lawattorney and she's taken that
passion and passed it on to atrust company and everyone there
(27:59):
carries her desire, her lovefor this and they do a fantastic
job.
So I would recommend it.
If y'all have questions, youcan always call me and, as
always, if you would like to doelder law and do it well, I
would love to be your coach andyou can just call the office
479-601-4119.
(28:20):
Ask for Trisha and she willgive you some information and
then set you up with a phonecall with me.
I would love to speak with youand say if you wanted to do
coaching and I think I can makeyou a pretty good elder law
attorney If you give me a yeargive me a year and I'll make you
a pretty good elder lawattorney.
Okay, all right, thanks,samantha.
Speaker 1 (28:43):
Thank you for joining
this episode of the Elder Law
Coach podcast.
For those eager to take theirelder law practice to new
heights and are interested inTodd's acclaimed coaching
program, visitwwwtheelderlawcoachcom.
With Todd Watley by your side,the journey to becoming an elder
law authority has never beenmore achievable.
(29:03):
Until next time, keep learning,keep growing and stay
passionate about elder law.