January 5, 2025 • 20 mins
This podcast episode emphasizes the importance of probate avoidance and explores various strategies to ensure smoother transitions of assets upon death. Todd Whatley discusses ethical estate planning practices, focusing on revocable living trusts, beneficiary designations, and joint ownership as ways to bypass probate.
• Understanding the pitfalls of defaulting to probate
• The role of revocable living trusts in estate planning
• Benefits of using beneficiary designations
• Ethical considerations in presenting estate options
• The risks associated with joint ownership
• The necessity of trust funding and regular plan reviews
• Strategies for keeping estate plans up to date
• Encouragement to adopt probate avoidance practices
Check out our new website www.TheElderLawCoach.com.
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Transcript
Episode Transcript
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Speaker 1 (00:19):
Thank you.
Specialized experience, Whetheryou're an established attorney
looking to refine your expertiseor an emerging lawyer seeking a
successful foray into elder law, this is your masterclass.
Now let's get started with theluminary in the field.
Here's Todd Whatley.
Speaker 2 (00:37):
That's right.
This is the Elder Law Coach andI am Todd Whatley.
Again, thank you very much forjoining us.
And today I want to talk aboutone of the areas that tends to
be a little controversial amongattorneys, but to me, I think it
has just opened up my practiceand it would distinguish you
different than other attorneys,because just the normal thing is
(01:08):
, everybody needs a will.
That means you go throughprobate and that's just how
everybody does it, and we'refacing a lot of competition out
there.
It's amazing when you look atpeople's practice areas, they'll
do just about everything, anddoing this will set you apart.
(01:31):
And what I'm talking about isprobate avoidance.
Okay, even if you live in astate where probate is not that
big of a deal, no one's everbeen able to tell me that
avoiding probate doing a trustor payable on death or joint
ownership, whatever things wewill talk about no one's ever
(01:51):
been able to show me that doingthat is going to be quicker than
probate and keeping people outof court, being able to settle
this at their dining room tableor at your conference table
without going to court, to mejust seems to make sense.
Even if probate's not a bigdeal, it's still a deal.
(02:12):
Okay, and avoiding probateallows people to avoid court and
again, it separates you fromthe other attorneys out there as
being just run of the mill.
Yeah, this is what everybodydoes.
This separates you to say, hey,listen to me, I want to keep
you out of court, and one of mykey phrases that I use when I do
(02:35):
presentations I always wearlike khakis and a pullover
button up.
I'm not dressed up in a suit.
I tell people I like to dresslike this every day when I go to
the office and I promise youyou want me, as your attorney,
to dress like this every day.
You don't want me putting on asuit and going to court for you,
because that's when it getsexpensive, time consuming, it's
(02:58):
a mess, and so my job as yourattorney is to keep you out of
court.
That is guardianship court andprobate court.
We'll talk about guardianshipcourt later on, but it's
basically POAs.
Okay, sorry, I'm getting overan illness, so being able to
(03:20):
present to people, hey, I'mdifferent.
I want you to avoid probates.
Separate you from the group ofattorneys out there that, yeah,
come see me, we'll do it well,and then eventually we'll do
probate and that's just howthings are done.
Okay, it's a huge benefit tothe client.
Clients will appreciate thatand see you as different, okay,
(03:42):
so how do you avoid probate?
Well, one of the most commonways is revocable living trust,
and I am pretty adamant in myoffice that we present to
clients all of the options.
Okay, and one of the optionsthat I want to talk about first
is you know the beneficiarydesignations.
(04:03):
Okay, that is very simple.
If you have a very simple casea single person, one or two
children, and she is not leavingmuch money to those children,
the children aren't going tofight.
I mean, it's just very simple.
Beneficiary designations workfor that person and you simply
(04:26):
instruct the client.
Hey, we definitely need to dopowers of attorney.
Okay, that's differentdiscussion.
But to avoid probate, you simplyname your children as the
beneficiaries on your house, onyour bank accounts, on your
vehicles, things like that.
At your death poof, it's goneto your children, they split it,
(04:46):
they have it and it's veryquick, very efficient, no court,
and they don't even need tocall me it, just it just happens
.
Okay, lots appreciate that andthey're like well, how much does
that cost?
Well, nothing.
You go to the bank and you tellthem I want this payable on
death.
Now I may need to do a deed onyour house and whatever you
(05:07):
charge for deeds, you will getthat revenue, but it is in the
client's best interest and thatperson will go talk to others
and say, hey, I went to see thisattorney and, surprisingly, the
solution to avoid probate wasvery simple and very
(05:28):
straightforward.
Now, that doesn't work foreveryone and you need to tell
the client.
You know, ask them, please tellpeople about me, but please
understand your solution doesn'twork for everyone.
You can tell them what we didfor you, but your situation is
very simple, verystraightforward, and this
solution works for you.
(05:48):
It may not work for everyone,so that they don't have people
coming in all the time thinkingyou're going to do it and it's
basically going to be for free.
Okay, you know it works forsome people and when it does
it's very nice.
Okay, but it works for somepeople and when it does, it's
very nice OK, and I present thatto basically every client, even
(06:11):
the clients worth millions.
But then I do go into it andsay, but look, yes, this will
work.
You can avoid probate verysimply without anything other
than pebble and deathbeneficiaries.
But what happens is when thismoney goes to your children.
It's their money, okay, it istheir money.
And if they are going throughbankruptcy, divorce or lawsuits,
(06:33):
this could be a concern.
Now, when you have the sweetlittle lady with $35,000 in her
bank account and basically eachkid's getting what $17,500,
you're not too concerned aboutbankruptcy, divorce and lawsuits
over $17,000.
But if they're leaving $3.5million, that's a concern, okay.
(06:54):
And it's like are you concernedthat if, at the time of your
death, your child is going toget, you know, $1.75 million,
that's a concern and you don'twant it to be subject to
bankruptcy, divorce or lawsuits?
And a lot of times clients willbring up issues with their
(07:16):
children.
I'm concerned about my in-laws.
I'm concerned about the waythat they're going to spend
money.
I don't want them to be incontrol of it, or their minors
whatever.
That's a natural progressioninto okay, beneficiary
designation doesn't work for you.
Therefore, you need a trust andI like to tell people in my
(07:37):
office when you come see me,you're going to tell me that you
need a trust.
I'm not going to tell you thatyou, I mean going to tell me
that you need a trust.
I'm not going to tell you thatyou, I mean I may tell you that
you need it, but you will seewhy you need it.
I always bring up beneficiarydesignations first, it's in the
client's best interest andsometimes it works.
But then they say that doesn'twork for me.
(08:00):
Okay, fine, let's talk abouttrust.
I can definitely take care ofall of your issues that you're
concerned about, all of yourconcerns.
I can fix that with a trust andit comes across to the client
as that you are truly lookingout for their best interests and
you're not trying to sell themsomething.
(08:21):
You want to get my bloodpressure up it's.
It's when that first client thatI talked about sweet little
lady with next to nothing andshe has one child, and she did a
trust to leave her $35,000 tothis child, who has no issues,
no concerns whatsoever, and theattorney she saw, uh, only
(08:42):
brought up a trust.
I say did the attorney bring uppayable on death being fishery?
She said no.
The only thing that they said Icould do to avoid probate was a
trust.
That is unethical, that is notin the client's best interest
and that is not appropriate.
Okay, and so therefore, youmentioned beneficiary
designations as a possiblesolution.
(09:05):
It's not going to work for alot of clients.
But it's the client thentelling you that doesn't work
for me.
What else have you got?
We have trust and then you feelinside your head and your heart
that you're doing exactly whatthe client needs.
You're not selling themanything and you're doing what
(09:27):
is in their best interest and attheir request.
Okay, so many times.
The revocable living trust isthe cornerstone of probate
avoidance.
It allows you to be flexible.
It allows you to have onedocument that defines what gets
done, how it's done.
(09:48):
It's very similar to a will,but it avoids probate.
And I tell people I love totell people if you'll take my
advice and you'll avoid probateyour children when they fly in
for your funeral, they canliterally, if they'll hang
around for just a day or twoafter your funeral, get the
death certificate.
(10:08):
They can get back on the planea few days after your funeral
with a good portion, if not all,of their inheritance in their
pocket.
And that just blows people'smind.
I said you won't even get aprobate filed before the kids
get on the plane and go backhome.
Okay, that process is so timeconsuming and delayed that even
(10:32):
with a simple probate it's notgoing to get filed that quickly.
It's definitely not going to becompleted that quickly, but
with probate avoidance, yourchildren can get on the plane
going back home after yourfuneral with a good portion of
their inheritance in theirpocket.
That rings with people andthey're like I need to go see
(10:53):
this person, okay.
So that's where I love to bringup trust and get this done so
that it is quick and to thepoint.
All right, some other possibleoptions on avoiding probate
which works sometimes is jointownership.
Now, I don't love jointownership, particularly when
(11:14):
it's between parents andchildren.
The typically the reason aparent will put their kid on
their checking account, savingsaccount are two reasons.
Number one they want the kid tobe able to sign checks and do
things for them.
If they can't, okay, well, thatsolution is our attorney, okay,
(11:35):
people don't know that they cando a power of attorney and that
immediately if it's immediatelyeffective, which it should be
allows your child to be able tosign checks.
They don't have to be on thebank account with you, they
don't even have to be listed asa signatory on the account
(11:55):
because that legal documentallows them to sign documents,
and that's one of the reasonspeople put their kids on their
bank accounts.
The second reason people puttheir kids on their bank account
is so.
Second reason people put theirkids on their bank account is so
that at their death that moneywill go to the kid as the joint
owner.
Okay, that makes sense.
But a better way to do it is tolist them as the payable on
(12:17):
death beneficiary.
That way, the child if it's achild that you're possibly
concerned about taking money ordoing anything they are
obviously not the power ofattorney and they are not the
joint owner.
They only get the money at thetime of your death and therefore
it's protected.
And at your death you don'tcare what they do with the money
(12:40):
anymore.
That's when the money goes tothem they're like, yeah, that's
exactly what I want.
Okay, well, you know banks willsay, oh, just put your kid on
your bank account, that'll makeeverything easy.
And I hate that and I want tofuss about it because that is
not a good solution.
There are times when you know,particularly with real estate,
(13:00):
it is a good idea to put yourkid's name on your house as a
joint owner.
All right, payable on deathtypically works better.
Medicaid will sometimesrecognize a jointly owned piece
of property as a non-countableasset and it will go to them.
Adding their name to itsometimes starts the five-year
look back so you can make surethat it will go to the child.
(13:24):
If they sell, the parentdoesn't get all of the money,
they only get a portion of it.
I mean there are some benefitsto joint ownership, particularly
with real estate.
But again, be careful andparticularly those attorneys who
want to quote, protect theasset from Medicaid and they
completely give the house to thekid with the parents still
(13:46):
living there.
That just opens up all kinds ofissues for the kid, kicking the
parent out, getting a mortgageon the house and it's just, it's
a mess.
You also lose step up in basis.
I mean there's just a lot ofissues with a complete quick
claim deed.
That can be minimized or, youknow, partially fixed with joint
(14:13):
ownership.
I'm not a huge fan of jointownership but it does avoid
probate.
Okay, I think you also shouldtell clients you know if for
some reason something is stuckin your name at the time of your
death and does have to gothrough probate, as long as it
is under your state's rules forsmall estates.
(14:37):
You know, sometimes a smallestate is not that complicated.
Now I know in my state therecan be no debts.
There's a dollar amount.
In our state it's $100,000 orless and so there are some
limitations.
And so there are somelimitations.
(14:59):
But small estates sometimes areokay.
If something gets missed or ifthe estate is very small, all
right.
So what this does is, you know,look at holistic planning.
It's doing what your clientneeds done and it's doing what
is in the client's best interestneeds done and it's doing what
(15:20):
is in the client's best interest.
I've never seen where doing alast will and testament knowing
that your client's going to gothrough probate, the family's
going to have to come back toyou to do the probate, and doing
that as a business strategy, Ithink is very, very shaky.
Okay.
I think that is not in theclient's best interest, and I
think you are.
You are not fulfilling yourrole as an attorney just to make
(15:45):
sure that you get futurebusiness.
Okay, because avoiding probateis very easy and it's in the
client's best interest, okay.
Just some common pitfalls to beaware of.
If you do a trust, be sure andmake sure.
However you do it in youroffice, you have to make sure
(16:08):
that the trust is funded.
So many times trusts don't getfunded and you need to have some
mechanism in your office toeither fix that problem or not.
Let that problem fall on you asa liability, ok, so remind
clients that creating a trustisn't enough.
Ok, here's the trust, we'vedone it, but you've got to make
(16:33):
sure that it is funded.
I have recently, very recently,created a position in my office
of a person whose job is tomake sure that our trust gets
funded a funding coordinator.
Also, warn the clients and itsounds kind of self-serving, but
just tell them there are issueswith outdated plans.
(16:53):
You need to come see me.
I say every five years, okay,even if nothing's really changed
there.
There may be some law changesthat you're concerned about or
that could be concerning to yourestate, and I will keep track
of those, but I'm I'm not goingto call you and say, hey, you
need to come see us.
That is up to you, but there'ssome major life events like
(17:17):
marriage of kids, divorce,acquiring significant assets
Things happen about every fiveyears that you really do need to
come see us and don't let yourplan become outdated.
So implement this in youroffice.
If you haven't yet, if you makea living off of probate, I'm
(17:41):
sorry.
Okay, there will be plenty ofprobate business from people who
did not come see you and willcome see you to do probate.
But I think your clients willappreciate greatly and I think
you will sleep better and you'llknow that you did what's in the
client's best interest If youwill start implementing probate
(18:02):
avoidance in your office.
Okay, it's a great way to getpeople in.
They trust you and then gettingthem in for estate plans also
kind of locks them in for futureservices and you should always
do powers of attorney.
With everyone who comes in youroffice.
(18:27):
You probably need to at leastdo powers of attorney.
Or if they have powers ofattorney, I can almost guarantee
you that they are notsufficient and we can talk about
that in future episodes.
But having a power of attorneywill also ensure that they come
back to see you for long-termcare and when they need help
(18:48):
with paying for the nursing home, doing this correctly, getting
these documents in place andthem trusting you will bring
them back later on for thatsecond phase of work.
Okay, all right, thank you forlistening.
As always, please subscribe,please share.
If you know someone goingthrough this that this can help,
(19:09):
I would appreciate sharing you,sharing this with them and, as
always, I would love to be yourelder law coach.
If you would like to implementthis into your practice, I can
definitely help you do that.
And if you are kind of dabblingin elder law, give me a call.
Let's talk about it.
Let me get you in at full speed, full on, so that you feel
(19:32):
comfortable doing it, and againI would love to work with you.
You feel comfortable doing itand again I would love to work
with you.
Visit our website, the elderlaw coachcom, and there is a
place there that you canschedule a telephone call with
me.
I would love to talk to you.
Let's get you up and going todo the best job in the world.
All right, see you next time.
Speaker 1 (19:52):
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 Whatley by your side,the journey to becoming an
elder law authority has neverbeen more achievable.
(20:12):
Until next time, keep learning,keep growing and stay
passionate about elder law.
Thank you.
Specialized experience, Whetheryou're an established attorney
looking to refine your expertiseor an emerging lawyer seeking a
successful foray into elder law, this is your masterclass.
Now let's get started with theluminary in the field.
Here's Todd Whatley.
Speaker 2 (00:37):
That's right.
This is the Elder Law Coach andI am Todd Whatley.
Again, thank you very much forjoining us.
And today I want to talk aboutone of the areas that tends to
be a little controversial amongattorneys, but to me, I think it
has just opened up my practiceand it would distinguish you
different than other attorneys,because just the normal thing is
(01:08):
, everybody needs a will.
That means you go throughprobate and that's just how
everybody does it, and we'refacing a lot of competition out
there.
It's amazing when you look atpeople's practice areas, they'll
do just about everything, anddoing this will set you apart.
(01:31):
And what I'm talking about isprobate avoidance.
Okay, even if you live in astate where probate is not that
big of a deal, no one's everbeen able to tell me that
avoiding probate doing a trustor payable on death or joint
ownership, whatever things wewill talk about no one's ever
(01:51):
been able to show me that doingthat is going to be quicker than
probate and keeping people outof court, being able to settle
this at their dining room tableor at your conference table
without going to court, to mejust seems to make sense.
Even if probate's not a bigdeal, it's still a deal.
(02:12):
Okay, and avoiding probateallows people to avoid court and
again, it separates you fromthe other attorneys out there as
being just run of the mill.
Yeah, this is what everybodydoes.
This separates you to say, hey,listen to me, I want to keep
you out of court, and one of mykey phrases that I use when I do
(02:35):
presentations I always wearlike khakis and a pullover
button up.
I'm not dressed up in a suit.
I tell people I like to dresslike this every day when I go to
the office and I promise youyou want me, as your attorney,
to dress like this every day.
You don't want me putting on asuit and going to court for you,
because that's when it getsexpensive, time consuming, it's
(02:58):
a mess, and so my job as yourattorney is to keep you out of
court.
That is guardianship court andprobate court.
We'll talk about guardianshipcourt later on, but it's
basically POAs.
Okay, sorry, I'm getting overan illness, so being able to
(03:20):
present to people, hey, I'mdifferent.
I want you to avoid probates.
Separate you from the group ofattorneys out there that, yeah,
come see me, we'll do it well,and then eventually we'll do
probate and that's just howthings are done.
Okay, it's a huge benefit tothe client.
Clients will appreciate thatand see you as different, okay,
(03:42):
so how do you avoid probate?
Well, one of the most commonways is revocable living trust,
and I am pretty adamant in myoffice that we present to
clients all of the options.
Okay, and one of the optionsthat I want to talk about first
is you know the beneficiarydesignations.
(04:03):
Okay, that is very simple.
If you have a very simple casea single person, one or two
children, and she is not leavingmuch money to those children,
the children aren't going tofight.
I mean, it's just very simple.
Beneficiary designations workfor that person and you simply
(04:26):
instruct the client.
Hey, we definitely need to dopowers of attorney.
Okay, that's differentdiscussion.
But to avoid probate, you simplyname your children as the
beneficiaries on your house, onyour bank accounts, on your
vehicles, things like that.
At your death poof, it's goneto your children, they split it,
(04:46):
they have it and it's veryquick, very efficient, no court,
and they don't even need tocall me it, just it just happens
.
Okay, lots appreciate that andthey're like well, how much does
that cost?
Well, nothing.
You go to the bank and you tellthem I want this payable on
death.
Now I may need to do a deed onyour house and whatever you
(05:07):
charge for deeds, you will getthat revenue, but it is in the
client's best interest and thatperson will go talk to others
and say, hey, I went to see thisattorney and, surprisingly, the
solution to avoid probate wasvery simple and very
(05:28):
straightforward.
Now, that doesn't work foreveryone and you need to tell
the client.
You know, ask them, please tellpeople about me, but please
understand your solution doesn'twork for everyone.
You can tell them what we didfor you, but your situation is
very simple, verystraightforward, and this
solution works for you.
(05:48):
It may not work for everyone,so that they don't have people
coming in all the time thinkingyou're going to do it and it's
basically going to be for free.
Okay, you know it works forsome people and when it does
it's very nice.
Okay, but it works for somepeople and when it does, it's
very nice OK, and I present thatto basically every client, even
(06:11):
the clients worth millions.
But then I do go into it andsay, but look, yes, this will
work.
You can avoid probate verysimply without anything other
than pebble and deathbeneficiaries.
But what happens is when thismoney goes to your children.
It's their money, okay, it istheir money.
And if they are going throughbankruptcy, divorce or lawsuits,
(06:33):
this could be a concern.
Now, when you have the sweetlittle lady with $35,000 in her
bank account and basically eachkid's getting what $17,500,
you're not too concerned aboutbankruptcy, divorce and lawsuits
over $17,000.
But if they're leaving $3.5million, that's a concern, okay.
(06:54):
And it's like are you concernedthat if, at the time of your
death, your child is going toget, you know, $1.75 million,
that's a concern and you don'twant it to be subject to
bankruptcy, divorce or lawsuits?
And a lot of times clients willbring up issues with their
(07:16):
children.
I'm concerned about my in-laws.
I'm concerned about the waythat they're going to spend
money.
I don't want them to be incontrol of it, or their minors
whatever.
That's a natural progressioninto okay, beneficiary
designation doesn't work for you.
Therefore, you need a trust andI like to tell people in my
(07:37):
office when you come see me,you're going to tell me that you
need a trust.
I'm not going to tell you thatyou, I mean going to tell me
that you need a trust.
I'm not going to tell you thatyou, I mean I may tell you that
you need it, but you will seewhy you need it.
I always bring up beneficiarydesignations first, it's in the
client's best interest andsometimes it works.
But then they say that doesn'twork for me.
(08:00):
Okay, fine, let's talk abouttrust.
I can definitely take care ofall of your issues that you're
concerned about, all of yourconcerns.
I can fix that with a trust andit comes across to the client
as that you are truly lookingout for their best interests and
you're not trying to sell themsomething.
(08:21):
You want to get my bloodpressure up it's.
It's when that first client thatI talked about sweet little
lady with next to nothing andshe has one child, and she did a
trust to leave her $35,000 tothis child, who has no issues,
no concerns whatsoever, and theattorney she saw, uh, only
(08:42):
brought up a trust.
I say did the attorney bring uppayable on death being fishery?
She said no.
The only thing that they said Icould do to avoid probate was a
trust.
That is unethical, that is notin the client's best interest
and that is not appropriate.
Okay, and so therefore, youmentioned beneficiary
designations as a possiblesolution.
(09:05):
It's not going to work for alot of clients.
But it's the client thentelling you that doesn't work
for me.
What else have you got?
We have trust and then you feelinside your head and your heart
that you're doing exactly whatthe client needs.
You're not selling themanything and you're doing what
(09:27):
is in their best interest and attheir request.
Okay, so many times.
The revocable living trust isthe cornerstone of probate
avoidance.
It allows you to be flexible.
It allows you to have onedocument that defines what gets
done, how it's done.
(09:48):
It's very similar to a will,but it avoids probate.
And I tell people I love totell people if you'll take my
advice and you'll avoid probateyour children when they fly in
for your funeral, they canliterally, if they'll hang
around for just a day or twoafter your funeral, get the
death certificate.
(10:08):
They can get back on the planea few days after your funeral
with a good portion, if not all,of their inheritance in their
pocket.
And that just blows people'smind.
I said you won't even get aprobate filed before the kids
get on the plane and go backhome.
Okay, that process is so timeconsuming and delayed that even
(10:32):
with a simple probate it's notgoing to get filed that quickly.
It's definitely not going to becompleted that quickly, but
with probate avoidance, yourchildren can get on the plane
going back home after yourfuneral with a good portion of
their inheritance in theirpocket.
That rings with people andthey're like I need to go see
(10:53):
this person, okay.
So that's where I love to bringup trust and get this done so
that it is quick and to thepoint.
All right, some other possibleoptions on avoiding probate
which works sometimes is jointownership.
Now, I don't love jointownership, particularly when
(11:14):
it's between parents andchildren.
The typically the reason aparent will put their kid on
their checking account, savingsaccount are two reasons.
Number one they want the kid tobe able to sign checks and do
things for them.
If they can't, okay, well, thatsolution is our attorney, okay,
(11:35):
people don't know that they cando a power of attorney and that
immediately if it's immediatelyeffective, which it should be
allows your child to be able tosign checks.
They don't have to be on thebank account with you, they
don't even have to be listed asa signatory on the account
(11:55):
because that legal documentallows them to sign documents,
and that's one of the reasonspeople put their kids on their
bank accounts.
The second reason people puttheir kids on their bank account
is so.
Second reason people put theirkids on their bank account is so
that at their death that moneywill go to the kid as the joint
owner.
Okay, that makes sense.
But a better way to do it is tolist them as the payable on
(12:17):
death beneficiary.
That way, the child if it's achild that you're possibly
concerned about taking money ordoing anything they are
obviously not the power ofattorney and they are not the
joint owner.
They only get the money at thetime of your death and therefore
it's protected.
And at your death you don'tcare what they do with the money
(12:40):
anymore.
That's when the money goes tothem they're like, yeah, that's
exactly what I want.
Okay, well, you know banks willsay, oh, just put your kid on
your bank account, that'll makeeverything easy.
And I hate that and I want tofuss about it because that is
not a good solution.
There are times when you know,particularly with real estate,
(13:00):
it is a good idea to put yourkid's name on your house as a
joint owner.
All right, payable on deathtypically works better.
Medicaid will sometimesrecognize a jointly owned piece
of property as a non-countableasset and it will go to them.
Adding their name to itsometimes starts the five-year
look back so you can make surethat it will go to the child.
(13:24):
If they sell, the parentdoesn't get all of the money,
they only get a portion of it.
I mean there are some benefitsto joint ownership, particularly
with real estate.
But again, be careful andparticularly those attorneys who
want to quote, protect theasset from Medicaid and they
completely give the house to thekid with the parents still
(13:46):
living there.
That just opens up all kinds ofissues for the kid, kicking the
parent out, getting a mortgageon the house and it's just, it's
a mess.
You also lose step up in basis.
I mean there's just a lot ofissues with a complete quick
claim deed.
That can be minimized or, youknow, partially fixed with joint
(14:13):
ownership.
I'm not a huge fan of jointownership but it does avoid
probate.
Okay, I think you also shouldtell clients you know if for
some reason something is stuckin your name at the time of your
death and does have to gothrough probate, as long as it
is under your state's rules forsmall estates.
(14:37):
You know, sometimes a smallestate is not that complicated.
Now I know in my state therecan be no debts.
There's a dollar amount.
In our state it's $100,000 orless and so there are some
limitations.
And so there are somelimitations.
(14:59):
But small estates sometimes areokay.
If something gets missed or ifthe estate is very small, all
right.
So what this does is, you know,look at holistic planning.
It's doing what your clientneeds done and it's doing what
is in the client's best interestneeds done and it's doing what
(15:20):
is in the client's best interest.
I've never seen where doing alast will and testament knowing
that your client's going to gothrough probate, the family's
going to have to come back toyou to do the probate, and doing
that as a business strategy, Ithink is very, very shaky.
Okay.
I think that is not in theclient's best interest, and I
think you are.
You are not fulfilling yourrole as an attorney just to make
(15:45):
sure that you get futurebusiness.
Okay, because avoiding probateis very easy and it's in the
client's best interest, okay.
Just some common pitfalls to beaware of.
If you do a trust, be sure andmake sure.
However you do it in youroffice, you have to make sure
(16:08):
that the trust is funded.
So many times trusts don't getfunded and you need to have some
mechanism in your office toeither fix that problem or not.
Let that problem fall on you asa liability, ok, so remind
clients that creating a trustisn't enough.
Ok, here's the trust, we'vedone it, but you've got to make
(16:33):
sure that it is funded.
I have recently, very recently,created a position in my office
of a person whose job is tomake sure that our trust gets
funded a funding coordinator.
Also, warn the clients and itsounds kind of self-serving, but
just tell them there are issueswith outdated plans.
(16:53):
You need to come see me.
I say every five years, okay,even if nothing's really changed
there.
There may be some law changesthat you're concerned about or
that could be concerning to yourestate, and I will keep track
of those, but I'm I'm not goingto call you and say, hey, you
need to come see us.
That is up to you, but there'ssome major life events like
(17:17):
marriage of kids, divorce,acquiring significant assets
Things happen about every fiveyears that you really do need to
come see us and don't let yourplan become outdated.
So implement this in youroffice.
If you haven't yet, if you makea living off of probate, I'm
(17:41):
sorry.
Okay, there will be plenty ofprobate business from people who
did not come see you and willcome see you to do probate.
But I think your clients willappreciate greatly and I think
you will sleep better and you'llknow that you did what's in the
client's best interest If youwill start implementing probate
(18:02):
avoidance in your office.
Okay, it's a great way to getpeople in.
They trust you and then gettingthem in for estate plans also
kind of locks them in for futureservices and you should always
do powers of attorney.
With everyone who comes in youroffice.
(18:27):
You probably need to at leastdo powers of attorney.
Or if they have powers ofattorney, I can almost guarantee
you that they are notsufficient and we can talk about
that in future episodes.
But having a power of attorneywill also ensure that they come
back to see you for long-termcare and when they need help
(18:48):
with paying for the nursing home, doing this correctly, getting
these documents in place andthem trusting you will bring
them back later on for thatsecond phase of work.
Okay, all right, thank you forlistening.
As always, please subscribe,please share.
If you know someone goingthrough this that this can help,
(19:09):
I would appreciate sharing you,sharing this with them and, as
always, I would love to be yourelder law coach.
If you would like to implementthis into your practice, I can
definitely help you do that.
And if you are kind of dabblingin elder law, give me a call.
Let's talk about it.
Let me get you in at full speed, full on, so that you feel
(19:32):
comfortable doing it, and againI would love to work with you.
You feel comfortable doing itand again I would love to work
with you.
Visit our website, the elderlaw coachcom, and there is a
place there that you canschedule a telephone call with
me.
I would love to talk to you.
Let's get you up and going todo the best job in the world.
All right, see you next time.
Speaker 1 (19:52):
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 Whatley by your side,the journey to becoming an
elder law authority has neverbeen more achievable.
(20:12):
Until next time, keep learning,keep growing and stay
passionate about elder law.
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