During this episode, Miranda is joined by Indiana Attorney Kent Emswiller of Emswiller, Williams, Noland & Clarke, LLC to answer common questions regarding Estate Planning. During their conversation they cover what an Estate Plan is, the benefits of starting the process early, what information and documents you need to get started, and much more.
To contact Kent directly to start the Estate Planning process, he can be reached at 317-257-8787. Their website is also accessible at www.ewnc-law.com.
Reference to, or information about, any specific product or service by name, trade name, trademark, or service mark in this podcast does not constitute an endorsement of that product or service.
During this podcast, legal examples will be discussed. This podcast is for informational purposes only and should not be considered legal advice. We are not responsible for any losses, damages, or liabilities that may arise from the use of this podcast. Please consult a licensed attorney regarding your own situation and prior to making any decisions.
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
(00:00):
Reference to or information about any specific productor service by name, trade name, trademark,
or service mark in this podcast does not constitutean endorsement of that product or service.
In addition, during this podcast,legal examples will be discussed.
This podcast is for informational purposesonly and should not be considered legal advice.
(00:20):
We are not responsiblefor any losses, damages or liabilities
that may arise from the use of this podcast.
Please consult a licensed attorney regardingyour own situation and prior to making any decisions.
And now on to the episode.
(00:41):
Hello and welcome to Better Money with ElementsFinancial.
I'm your host, Miranda Finley.
I'm a certified financial wellness professionalwho has worked with thousands of people
in all walks of life, and I'm also a real personwith real financial experiences.
I'll chat from both personal and professionalviewpoints to help make your money better.
We'll be guiding you through the basics of estateplanning today.
(01:02):
We understandthat estate planning can feel very sensitive
and uncomfortable for many of us,and thinking about what will happen to our assets
and our loved ones after we're gone is a daunting taskthat can be overwhelming.
However, facing these realities, head onand planning ahead to provide,
immense peace of mind and security for you
(01:23):
and your family is what we're shooting for.
Today we're going to guide you through that processwith empathy and understanding
so that you can feel empoweredto make informed decisions about your estate.
And here to help me do so is KentEmswiller of Emswiller, Williams, Nolan and Clarke LLC.
He has been a licensed attorneyin the state of Indiana, specializing primarily
(01:45):
in estate planning,serving clients in Indianapolis for over 40 years.
Kent has been the preferred estatelaw attorney partner of Elements
for many years, of those 40 he's been practicing.
Thank you so much for joining us, Kent.
Thanks, Miranda, and glad to be here.
Yeah, we're very glad to have you.
I always learn something every time I hear from you.
So I'm excited to hearwhat you have in store for our listeners today.
(02:08):
So I want to start with the basics.
What is an estate plan?What do we need to know about it?
Well, without having to use the word plan again,
it's an organized attempt to make sure that your assets
go to the people that you want them to go to
in a simple, cost effective manner,
(02:29):
without having to increase legal entanglements.
required to do that. Okay.
And I mean, obviously, we feel that estateplanning is pretty important in the banking world.
and what do you feel like the importance
of estate planning iswhat does it represent for people?
Well, it it has a couple of things it represents.
(02:49):
First of all, no one gets off this planet alive.
So that's the first thing
everybody out here has to understandis that there will come a time
when you're not taking any assetswith you to the cemetery.
There's no Brinks truck in the processiongoing out there.
So given that piece of information,
(03:10):
it's important for everybodyto recognize that there will come a time
when their estate plan, organized or unorganized,
will be put into operation, and that will occur.
And it either can be simple for those who leave behind,or it can be difficult.
Yeah, absolutely.
You know, you said there will come a timewhen this needs to come into play.
(03:33):
When is that timing and when is it right
for people to start thinking about an estate plan?
Well, I get that question a lot.
And I tell young married couplesthat if they’re wanting
to leave everything to each other,they probably need a very, very simple plan.
It's when a child comes into play
(03:55):
that things get very complicatedand you really, really need to do something,
when that child appears.
Children in Indiana may not own more than $10,000
without there being a guardianship with itwhich is a very difficult,
very expensive legal proceeding to have going on.
So one of the chief things, that parents want to do
(04:19):
is one provide a guardian to raise their child
and someone to manage the moneyso that the child doesn't have it in their name.
It's there for their benefit, but not in their name.
and that really makes things easier for those children
and the people taking care of them who are left behind.
Yeah. And some of that changes state to state right?
(04:41):
So you're speaking specifically for Indianawhen it comes to children.
And then, for married couplesthat, you know, assuming each other's
no estate and belongings, but every statekind of operates a little differently, right?
Correct, we have 51, different
processes in the United States.
(05:02):
Puerto Rico being the 51st,they're much more based upon Spanish
law than they are on the English common law.
And so, yes, everything I say pertains to Indiana
and is based upon Indiana lawbecause my license stops at the border.
Though I can help people in other states
(05:24):
generally find lawyers in those statesin their communities who can help them with their plan.
So if they're in Illinois, or Iowa, or Michigan,
and they are members, I'm happy to talk to them
and tell them how to goabout finding appropriate people to help them.
No, that's super helpful.
And so if one of those life eventslike getting married or becoming pregnant,
(05:47):
you know, kind of triggersa person's need for an estate plan.
What does somebody need to gatherand what do they need to prepare in
order to, come to you for an appointment?
Sure.
and, and I want to put out here right now is
if you're my client, I don't screen my calls.
You'll want to call me.
(06:08):
And the things that I tell people to dois, first of all,
make a simple list of your major assets.
So, for instance,it might be your Elements savings and checking account,
your house, an IRA, or a 401K.
There are several thingsthat get into the mix in the formula
to make sure that everything gets aimedwhere it's supposed to go.
(06:31):
And some plans can be exceedingly simplein the state of Indiana,
and some plans are much greater.
I'd also ask them if they have children,
who would they want to raise their kids
if something happened to both mom and dad?
Who would they want to take care of the child's money?
Which would be a minor's trust trustee.
(06:53):
And then we'd talk about alternates.
And it's the alternates Husbands and wivesfor instance, usually do everything for each other.
It's the alternate because generally one will die,the other will survive.
And so then the alternate health care representative,
which we'll talk about later, needs to be in place.
That alternate power of attorney needs to be in place.
(07:16):
The alternate executor needs to be in place.
These become the really important people.
and so I'll ask and have talked about these things
so that they have answers for me when they get there.
Absolutely.
And what questions do you wishpeople would ask you during appointments?
What do you think is most effective?
I'm sure at this point in timepracticing for as long as you have,
(07:40):
and what I know of you,you address things pretty head on.
You know, you already told us at the top of thispresentation that nobody's going to get out alive.
So we probably need to have a plan.
So you're a pretty direct guy,which I appreciate about you, but what questions
do you wish people would ask?
What are they really need to knowduring these appointments?
Sure.
When they're in their 20s, 30sand 40s, is a different set of issues
(08:03):
that I want to bring up with clientsthan, say, in the later 70s and 80s.
Timing differences when you're young and healthy,
you're probability of meeting
an untimely end are fairly remote.
But you get into your 70s and 80sand and things could happen very rapidly.
So, for instance, in a power of attorney,I normally for a younger person
(08:28):
wouldn't have that power of attorney be in
process, be effective right then.
I would take a triggering eventlike your physician saying
you've had a stroke, you're unconscious,you can't take care of your affairs.
Up in the later 70sand 80s, the chances of being incapacitated
and needing someone to help you withtheir finances, is right there in your face.
(08:52):
And and you need to appoint somebodythat's effective and immediately and able to help you.
And that power of attorney is a powerful position,
and one in which I'll wish people ask mewhat are the characteristics
of an effective attorney,in fact, is the person you appoint?
What's what are effective traits that they have?
(09:12):
What do they need to know?
Those are the things I wish they had asked more about
because I've watched so many ineffective appointments,that I know the opposite.
And that's not what you want.
But here are things that are good traits.
Yeah, absolutely.
And that kind of leads us into our next topic.
So now that we know the triggering events ofwhen we need to think about having an estate plan
(09:35):
prepared,we know what we need to gather before appointments.
You know, we have our list of assets,and we've kind of given some thought
about the people in our livesthat we feel are in a in a good position
to help make decisions for usor for our loved ones or for our estate.
How do we know, like where to put that?
The big twothat I always hear about is a will and a trust.
(09:58):
So high level,
can you explain the differences in thoseand when one is maybe more appropriate than the other?
Sure.
And and let's go out and expandit beyond just a will and a trust.
Please do.
Indiana has fortunatelyhad a very favorable legislature
as that the lawyers, state lawyers had gone toand asked for certain things.
(10:20):
So for instance, the last will and testament
or a revocable trust,which of the two instruments you talked about
are just two options available to Indiana residentsto do their estate plan.
So we have extensive joint tenancyrights of survivorship laws,
which allow two people to own an assetand that asset to pass to the survivor,
(10:44):
or sometimes the survivors with 3 or 4 people involved,
without there being any proceeding to do that.
It just happens automatically as an operation of law.
We have a, a very good
probably a nation leading transfer on death.
Pay, on death statute, which outside of a 401K
(11:05):
and its cousins, an IRA, life insurance,
you can add that designation to any asset in Indiana
which will cause it also to pass at your death
without there being any estate administrationor trust administration,
so that, you know, there's another methodthat Indiana gives us to do things.
(11:25):
So those are all kinds of options on the tableto be explored.
Now, the difference between a will and a trust.
A will only covers assets
that are in the descendant'sname alone for it to be for instance,
Kent Emswiller's and his estate,it had to be Kent Emswiller alone.
No transfer on death,
(11:47):
no pay on death, no joint ownership.
So that's a really important distinctionin that most people don't understand
that your will only affects those assets.
A trust is also a written documentthat names a trustee to hold things.
You can be your own trustee to start with.
(12:08):
You can have assets in that trust,or you don't have to have assets in that trust.
And it proceeds along until you perish.
At which time the, thethe trust will have a successor trustee.
Now, the biggest difference between the executorand the trustee is in Indiana,
the executor generally will be done in 3
(12:30):
to 5 months handling the one named asset.
The trust might go on for years and years and years.
So for instance, if you have a young child,
you don't want that childto receive their inheritance at 18 or 21.
They're too immature.
They've not got kicked around by life
enough to understand what what how to do that.
(12:53):
So that trustee might be holding their assetsuntil they're 25 or 30.
So the length of time of service
is the biggest differencebetween a trustee and an executor.
And the trustee generally has no contactwith the court system.
And in Indiana, an executor has perhaps
(13:13):
no contact with the court system,but at best a minimal amount.
Those are the big things.
Differences, revocable trust are really good
at three things better than an estat.
One, if you have non Indiana real estate,that Florida condo
I see all the time,Florida is a hard place to transfer assets.
(13:35):
If your trust owns that Florida property and you die,you died.
Your trust didn't die.
It just keeps chugging along with that Florida condo.
If you have a child that you don't want
to receive anything, disinherit that child.
It's harder to break a trust in Indianathan it is a will.
So you would write a revocable trust,put your assets in there,
(13:59):
and then go on and disinherit the child.
It's harder for that childto climb to the top of the mountain
to break your planif you use a trust than it is if you use a will.
Lastly, if you want secrecy,
Indiana's revocable trust, you can tell the trustee,
don't tell the beneficiarieswho the other beneficiaries are.
(14:21):
Don't tell them what's in the trust.
Don't tell them what happens when I die.
So if you have two childrenand you're giving one of them 80% and the other 20,
you might not want them to know that you're doing that.
But I also add this to all the clients.
You're dead.
The worst thing they can do for youis come out to your gravesite and steal the flowers.
(14:43):
So do what you want to.
This is your plan.
Just the fact that your family's unhappy.
That's not the issue here.
The issue is,are you happy in what you did and are there
generally when it comes to executors
and trustees, are these people that we know personallyor are they family members
or are they friends of the family,or are they our attorneys?
(15:06):
What what pool should we be picking fromwhen it comes to an executor versus a trustee?
Everybody you just named is in the pool.
But I describe it this way.
If the client says, what are the characteristicsof a good executor or a good trustee?
And I go, the number one item is
they will willingly say,I don't know what I don't know.
(15:30):
And if they're willing to say that,they're on the beginning of a good path,
because I don't expect them to have done this
more than this maybe one time in their entire life.
If they know they don't know, then they can cometo a lawyer and say, what do I need to do?
And I go, well, we need to hire a CPA to do taxes.
We need to hire a financial advisorto help us manage the money while we're in control.
(15:53):
You need a lawyer to guide you through that.
And that would be true as an executor or a trusteefor all the things that they need to do.
But but the key point is,is they recognize they need help.
They are honest. They have integrity.
They are willing to say the word no to relatives
who want to change your plan after you're goneand don't have any right to do that.
(16:17):
They need to be told, I'm sorry, I'm the executor.
I'm going to do what I'm supposed to do,not what you want me to do.
Absolutely.
And that leads us into,something that you touched on before.
But when it comes to health care,end of life decisions and guardian appointments.
So we also need to be really choosy about the peoplethat we're putting into those positions for us.
(16:37):
Correct? Absolutely.
And, and I, I like to tell people sit downand have a conversation
with these,what I call side issue before you die type things.
And let's, let's use a health care representative,because I consider it the most important decision
an individual will make during their lifetime.
(16:59):
A health care representative is a personwho will make medical decisions for you
when the physician decides, in his
or her opinion, that you can't understandenough of what's going
on, to give informed consent to what they want to do.
And then I'm not talking about an emergency situation,I'm talking about non-emergency situations.
(17:21):
So the physician, you've had a stroke and the physiciansays, well, obviously I can't communicate.
That is when your health care representativecomes into action and will make decisions.
It is imperative that you have a conversation
with this person before anything happens,
so that they can listen to you talk about, well, if,if I've had a stroke
(17:44):
and I can't function and I'm not going to recover,I want you to pull the plug.
Indiana will allow you to disconnectfrom mechanical means keeping you alive.
But. But you need to tell
the person that the physician walksin that hospital room,
and and he's going to,or she's going to expect an answer fairly quickly.
(18:04):
So you need to have painted a picturefor your health care
representative that causes them to have a memory
of that conversation, which should be fairly
harsh and, and something that they'll remember
so that they can set the facts of the moment
into that conversationand know what you want them to do.
(18:25):
That that's really important is that conversation.
And you also need to make surethat the stakeholders in your life have heard
it also as to as well as what to do
with your remains when the end comes,
because those situations are just
rife for the family to disagree.
(18:45):
And and you want all the heads in the hospital room,which I define as the stakeholders,
to be nodding in agreementwhen the person actually in power
says doc, we choose option number two.
I don't want half yes and half no.
Those stakeholders need to hear it from your mouthas to what you want done.
Yeah.
So what I'm hearing is,if you are looking to appoint somebody in your life
(19:10):
and you want to have these conversations,maybe set a time to have the conversation,
and make it an eventso that it stands out, in the person's head.
Casually mention mentioningthat you want to be buried on a Tuesday
to your health care representative,or the person making this end of life decisions.
It's a little bit of a jump scare
for the person on the receiving end,and then it may not be super well-received.
(19:33):
Again, these conversationsdefinitely can be uncomfortable.
I appreciate what you're saying, that choosingthe right person who will carry out your wishes,
even when it's a little bit more difficult to doso is really important.
Years ago,I would get that question, when do I do this?
And I said,well, here's the best time; on Thanksgiving,
(19:55):
everybody will be at your houseand people tend to gather into the kitchen.
So about the time that the pies come outand the bird goes in
is a perfect time,because that smell is going to go through the house.
They'll all come in, their kind of eyeball to the pieand the turkey going in, and then you've got them
(20:17):
and have that conversation at
that time because they're all going to be in one placeand you only have to say it once.
That sounds memorable.
That was my good storyabout when I told people to have that conversation.
Yes. do so with caution.
So, yes.
and then Guardian appointments.
So you mentioned this earlier,making sure that your children
(20:39):
are left in the hands of individualsthat you want to raise them.
I can't think of somethingthat's more important than that.
So can you talk about that?
It doesn't have to be a relative.
What you're looking for is someone who models
parent the way you want your child raised.
So that's the chief characteristic.
(20:59):
So that guardian with yougone is going to set your educational opportunities
for your child,their religious upbringing, their moral upbringing,
their ability to tell right from wrong.
So it's very importantthat you look among the people who you've encountered
and choosesomeone who models parent the way you want it.
(21:20):
It doesn't have to be a relative.
It doesn't have to be anyonewho is involved in your child's life.
It just has to be someone who you believewill do a good job in raising your child.
When you're not there.
And do you think that, that conversationshould also happen ahead of time?
Once you've made that appointmentor before you've made that appointment?
(21:41):
Oh, absolutely.
You need to have talked to that guardianto make sure they're willing to step forward.
And I also always want and I alternate
behind that first named guardian
in case that they look forward and they go,
I don't see myself doing this for 18 or 20 years.
I think I'll pass because they don't have to accept.
(22:04):
So you always want to make sure you have a backup,
particularly for that positionand also the trustee watching your child's money
because they're going to be around for 20 or 30 years, having to do that.
So those are things that you need backups for.
Absolutely.
Well, what I've gathered through this conversationand working with you
(22:27):
for many years now is thatthis isn't something that you need to do alone.
So as an attorney, you're going to help themwalk through the steps of maybe a foreign process
or an uncomfortable process, and you'll be thereeither for them or for the trustees that they appoint.
So I feel like that's comforting to knowthat you've been through the process many times.
(22:47):
so you'll be there for your clients and,the person involved in their estate plan.
Well, I appreciate that.
And yes, for the past, 46 years,but that's the kind of law.
And it has changed greatly in my years of practice.
And, I'm happy to say Indiana has done nothing except
make it easier to do an estate plan.
(23:10):
They've made it easier and cheaperwhen something happens to you
to make sure that your assetsgo to the people that you want them to go to
without any interference from the state,without any inheritance tax here locally.
It's just how good a plan
have you put together will determine how quicklyand efficiently
(23:31):
your intended recipients, receive their inheritance.
I feel that planningyour estate is not just about your finances.
It's about ensuring that your loved ones are cared for
and that your legacy is protectedthe way that you wanted to protect it.
By taking the time to create an estate plan
with, a very capable attorney like Kent,
(23:52):
you're providing a gift, of clarity and security
to your family during what,I'm sure is already a difficult time.
We hope that today's episode has inspired you to start
thinking, about your estate planning journey.
Remember, you're not alone again, in this process,seek out professional advice
like Kent and take the necessary stepsto secure your future.
(24:14):
If our listeners are interestedin working with you, Kent, how can they reach you?
Well, probably the easiest wayis just to pick up the phone and call me.
(317) 257-8787,I believe my other contact information,
like my email, is on Element's website,they can simply call I don't screen calls.
I'll be happy to talk to you.
(24:35):
We'll get together for an hourand let's talk about estate planning.
I don't charge for that initial conference,I like talking to people.
And and this is something I like helping them with.
So I'd be happy to talk to any of the listenersright now.
Yeah.
And I can personally say,I've had several members in people that I know
that I've worked with Kent on their family'sestate plan.
(24:56):
and something that I appreciate is a
he's like, the least attorney attorneythat I've ever worked with.
So, he speaks plainly.
You understand what he's saying?
I've asked him, I don't know about a million questionsup to this point, from working together.
And he's always been really graciousand he's never made me feel dumb
for having the questions that I dobecause this is not what I do all day, every day.
(25:20):
It is what he does all day, every day.
And I think that he has a passionin helping people understand
what's best for themand what's best for their families, and marrying
that to the current laws in placeto help them get where they want to go.
And then also, I believe that there's transparency in
what can Kent charges for, his services.
So I appreciate that.
because that is a thought process that comes up.
(25:43):
Is this affordable for me?
Is this something that my family can do right now?
So, thanks for letting us know that that initialconversation will absolutely not have any charge.
And then he's very transparent, moving forward,if there's going to be a charge involved.
At Elements, we'd also like to remind youto make sure that you've updated your bank accounts,
either with us, or with your primary
(26:04):
to have correct beneficiaries
to simplify the process and how things transfer.
And then if you have any further questions,please feel free to reach out to us at elements.org.
And for more helpful advice,check out elements.org/advice.
And thank you for joining us on Better Money withElements Financial as we chatted about estate planning.
(26:25):
We hope you were able to take something away to helpmake your money better.
Find more episodes at elements.org/bettermoneyor anywhere you listen to podcasts.
And don't forget to rate and review.
As always, reach out to us at bettermoney@elements.organd we'll see you next time.
Reference to or information about any specific productor service by name, trade name, trademark,
or service mark in this podcast does not constitutean endorsement of that product or service.
In addition, during this podcast,legal examples will be discussed.
This podcast is for informational purposesonly and should not be considered legal advice.
(00:20):
We are not responsiblefor any losses, damages or liabilities
that may arise from the use of this podcast.
Please consult a licensed attorney regardingyour own situation and prior to making any decisions.
And now on to the episode.
(00:41):
Hello and welcome to Better Money with ElementsFinancial.
I'm your host, Miranda Finley.
I'm a certified financial wellness professionalwho has worked with thousands of people
in all walks of life, and I'm also a real personwith real financial experiences.
I'll chat from both personal and professionalviewpoints to help make your money better.
We'll be guiding you through the basics of estateplanning today.
(01:02):
We understandthat estate planning can feel very sensitive
and uncomfortable for many of us,and thinking about what will happen to our assets
and our loved ones after we're gone is a daunting taskthat can be overwhelming.
However, facing these realities, head onand planning ahead to provide,
immense peace of mind and security for you
(01:23):
and your family is what we're shooting for.
Today we're going to guide you through that processwith empathy and understanding
so that you can feel empoweredto make informed decisions about your estate.
And here to help me do so is KentEmswiller of Emswiller, Williams, Nolan and Clarke LLC.
He has been a licensed attorneyin the state of Indiana, specializing primarily
(01:45):
in estate planning,serving clients in Indianapolis for over 40 years.
Kent has been the preferred estatelaw attorney partner of Elements
for many years, of those 40 he's been practicing.
Thank you so much for joining us, Kent.
Thanks, Miranda, and glad to be here.
Yeah, we're very glad to have you.
I always learn something every time I hear from you.
So I'm excited to hearwhat you have in store for our listeners today.
(02:08):
So I want to start with the basics.
What is an estate plan?What do we need to know about it?
Well, without having to use the word plan again,
it's an organized attempt to make sure that your assets
go to the people that you want them to go to
in a simple, cost effective manner,
(02:29):
without having to increase legal entanglements.
required to do that. Okay.
And I mean, obviously, we feel that estateplanning is pretty important in the banking world.
and what do you feel like the importance
of estate planning iswhat does it represent for people?
Well, it it has a couple of things it represents.
(02:49):
First of all, no one gets off this planet alive.
So that's the first thing
everybody out here has to understandis that there will come a time
when you're not taking any assetswith you to the cemetery.
There's no Brinks truck in the processiongoing out there.
So given that piece of information,
(03:10):
it's important for everybodyto recognize that there will come a time
when their estate plan, organized or unorganized,
will be put into operation, and that will occur.
And it either can be simple for those who leave behind,or it can be difficult.
Yeah, absolutely.
You know, you said there will come a timewhen this needs to come into play.
(03:33):
When is that timing and when is it right
for people to start thinking about an estate plan?
Well, I get that question a lot.
And I tell young married couplesthat if they’re wanting
to leave everything to each other,they probably need a very, very simple plan.
It's when a child comes into play
(03:55):
that things get very complicatedand you really, really need to do something,
when that child appears.
Children in Indiana may not own more than $10,000
without there being a guardianship with itwhich is a very difficult,
very expensive legal proceeding to have going on.
So one of the chief things, that parents want to do
(04:19):
is one provide a guardian to raise their child
and someone to manage the moneyso that the child doesn't have it in their name.
It's there for their benefit, but not in their name.
and that really makes things easier for those children
and the people taking care of them who are left behind.
Yeah. And some of that changes state to state right?
(04:41):
So you're speaking specifically for Indianawhen it comes to children.
And then, for married couplesthat, you know, assuming each other's
no estate and belongings, but every statekind of operates a little differently, right?
Correct, we have 51, different
processes in the United States.
(05:02):
Puerto Rico being the 51st,they're much more based upon Spanish
law than they are on the English common law.
And so, yes, everything I say pertains to Indiana
and is based upon Indiana lawbecause my license stops at the border.
Though I can help people in other states
(05:24):
generally find lawyers in those statesin their communities who can help them with their plan.
So if they're in Illinois, or Iowa, or Michigan,
and they are members, I'm happy to talk to them
and tell them how to goabout finding appropriate people to help them.
No, that's super helpful.
And so if one of those life eventslike getting married or becoming pregnant,
(05:47):
you know, kind of triggersa person's need for an estate plan.
What does somebody need to gatherand what do they need to prepare in
order to, come to you for an appointment?
Sure.
and, and I want to put out here right now is
if you're my client, I don't screen my calls.
You'll want to call me.
(06:08):
And the things that I tell people to dois, first of all,
make a simple list of your major assets.
So, for instance,it might be your Elements savings and checking account,
your house, an IRA, or a 401K.
There are several thingsthat get into the mix in the formula
to make sure that everything gets aimedwhere it's supposed to go.
(06:31):
And some plans can be exceedingly simplein the state of Indiana,
and some plans are much greater.
I'd also ask them if they have children,
who would they want to raise their kids
if something happened to both mom and dad?
Who would they want to take care of the child's money?
Which would be a minor's trust trustee.
(06:53):
And then we'd talk about alternates.
And it's the alternates Husbands and wivesfor instance, usually do everything for each other.
It's the alternate because generally one will die,the other will survive.
And so then the alternate health care representative,
which we'll talk about later, needs to be in place.
That alternate power of attorney needs to be in place.
(07:16):
The alternate executor needs to be in place.
These become the really important people.
and so I'll ask and have talked about these things
so that they have answers for me when they get there.
Absolutely.
And what questions do you wishpeople would ask you during appointments?
What do you think is most effective?
I'm sure at this point in timepracticing for as long as you have,
(07:40):
and what I know of you,you address things pretty head on.
You know, you already told us at the top of thispresentation that nobody's going to get out alive.
So we probably need to have a plan.
So you're a pretty direct guy,which I appreciate about you, but what questions
do you wish people would ask?
What are they really need to knowduring these appointments?
Sure.
When they're in their 20s, 30sand 40s, is a different set of issues
(08:03):
that I want to bring up with clientsthan, say, in the later 70s and 80s.
Timing differences when you're young and healthy,
you're probability of meeting
an untimely end are fairly remote.
But you get into your 70s and 80sand and things could happen very rapidly.
So, for instance, in a power of attorney,I normally for a younger person
(08:28):
wouldn't have that power of attorney be in
process, be effective right then.
I would take a triggering eventlike your physician saying
you've had a stroke, you're unconscious,you can't take care of your affairs.
Up in the later 70sand 80s, the chances of being incapacitated
and needing someone to help you withtheir finances, is right there in your face.
(08:52):
And and you need to appoint somebodythat's effective and immediately and able to help you.
And that power of attorney is a powerful position,
and one in which I'll wish people ask mewhat are the characteristics
of an effective attorney,in fact, is the person you appoint?
What's what are effective traits that they have?
(09:12):
What do they need to know?
Those are the things I wish they had asked more about
because I've watched so many ineffective appointments,that I know the opposite.
And that's not what you want.
But here are things that are good traits.
Yeah, absolutely.
And that kind of leads us into our next topic.
So now that we know the triggering events ofwhen we need to think about having an estate plan
(09:35):
prepared,we know what we need to gather before appointments.
You know, we have our list of assets,and we've kind of given some thought
about the people in our livesthat we feel are in a in a good position
to help make decisions for usor for our loved ones or for our estate.
How do we know, like where to put that?
The big twothat I always hear about is a will and a trust.
(09:58):
So high level,
can you explain the differences in thoseand when one is maybe more appropriate than the other?
Sure.
And and let's go out and expandit beyond just a will and a trust.
Please do.
Indiana has fortunatelyhad a very favorable legislature
as that the lawyers, state lawyers had gone toand asked for certain things.
(10:20):
So for instance, the last will and testament
or a revocable trust,which of the two instruments you talked about
are just two options available to Indiana residentsto do their estate plan.
So we have extensive joint tenancyrights of survivorship laws,
which allow two people to own an assetand that asset to pass to the survivor,
(10:44):
or sometimes the survivors with 3 or 4 people involved,
without there being any proceeding to do that.
It just happens automatically as an operation of law.
We have a, a very good
probably a nation leading transfer on death.
Pay, on death statute, which outside of a 401K
(11:05):
and its cousins, an IRA, life insurance,
you can add that designation to any asset in Indiana
which will cause it also to pass at your death
without there being any estate administrationor trust administration,
so that, you know, there's another methodthat Indiana gives us to do things.
(11:25):
So those are all kinds of options on the tableto be explored.
Now, the difference between a will and a trust.
A will only covers assets
that are in the descendant'sname alone for it to be for instance,
Kent Emswiller's and his estate,it had to be Kent Emswiller alone.
No transfer on death,
(11:47):
no pay on death, no joint ownership.
So that's a really important distinctionin that most people don't understand
that your will only affects those assets.
A trust is also a written documentthat names a trustee to hold things.
You can be your own trustee to start with.
(12:08):
You can have assets in that trust,or you don't have to have assets in that trust.
And it proceeds along until you perish.
At which time the, thethe trust will have a successor trustee.
Now, the biggest difference between the executorand the trustee is in Indiana,
the executor generally will be done in 3
(12:30):
to 5 months handling the one named asset.
The trust might go on for years and years and years.
So for instance, if you have a young child,
you don't want that childto receive their inheritance at 18 or 21.
They're too immature.
They've not got kicked around by life
enough to understand what what how to do that.
(12:53):
So that trustee might be holding their assetsuntil they're 25 or 30.
So the length of time of service
is the biggest differencebetween a trustee and an executor.
And the trustee generally has no contactwith the court system.
And in Indiana, an executor has perhaps
(13:13):
no contact with the court system,but at best a minimal amount.
Those are the big things.
Differences, revocable trust are really good
at three things better than an estat.
One, if you have non Indiana real estate,that Florida condo
I see all the time,Florida is a hard place to transfer assets.
(13:35):
If your trust owns that Florida property and you die,you died.
Your trust didn't die.
It just keeps chugging along with that Florida condo.
If you have a child that you don't want
to receive anything, disinherit that child.
It's harder to break a trust in Indianathan it is a will.
So you would write a revocable trust,put your assets in there,
(13:59):
and then go on and disinherit the child.
It's harder for that childto climb to the top of the mountain
to break your planif you use a trust than it is if you use a will.
Lastly, if you want secrecy,
Indiana's revocable trust, you can tell the trustee,
don't tell the beneficiarieswho the other beneficiaries are.
(14:21):
Don't tell them what's in the trust.
Don't tell them what happens when I die.
So if you have two childrenand you're giving one of them 80% and the other 20,
you might not want them to know that you're doing that.
But I also add this to all the clients.
You're dead.
The worst thing they can do for youis come out to your gravesite and steal the flowers.
(14:43):
So do what you want to.
This is your plan.
Just the fact that your family's unhappy.
That's not the issue here.
The issue is,are you happy in what you did and are there
generally when it comes to executors
and trustees, are these people that we know personallyor are they family members
or are they friends of the family,or are they our attorneys?
(15:06):
What what pool should we be picking fromwhen it comes to an executor versus a trustee?
Everybody you just named is in the pool.
But I describe it this way.
If the client says, what are the characteristicsof a good executor or a good trustee?
And I go, the number one item is
they will willingly say,I don't know what I don't know.
(15:30):
And if they're willing to say that,they're on the beginning of a good path,
because I don't expect them to have done this
more than this maybe one time in their entire life.
If they know they don't know, then they can cometo a lawyer and say, what do I need to do?
And I go, well, we need to hire a CPA to do taxes.
We need to hire a financial advisorto help us manage the money while we're in control.
(15:53):
You need a lawyer to guide you through that.
And that would be true as an executor or a trusteefor all the things that they need to do.
But but the key point is,is they recognize they need help.
They are honest. They have integrity.
They are willing to say the word no to relatives
who want to change your plan after you're goneand don't have any right to do that.
(16:17):
They need to be told, I'm sorry, I'm the executor.
I'm going to do what I'm supposed to do,not what you want me to do.
Absolutely.
And that leads us into,something that you touched on before.
But when it comes to health care,end of life decisions and guardian appointments.
So we also need to be really choosy about the peoplethat we're putting into those positions for us.
(16:37):
Correct? Absolutely.
And, and I, I like to tell people sit downand have a conversation
with these,what I call side issue before you die type things.
And let's, let's use a health care representative,because I consider it the most important decision
an individual will make during their lifetime.
(16:59):
A health care representative is a personwho will make medical decisions for you
when the physician decides, in his
or her opinion, that you can't understandenough of what's going
on, to give informed consent to what they want to do.
And then I'm not talking about an emergency situation,I'm talking about non-emergency situations.
(17:21):
So the physician, you've had a stroke and the physiciansays, well, obviously I can't communicate.
That is when your health care representativecomes into action and will make decisions.
It is imperative that you have a conversation
with this person before anything happens,
so that they can listen to you talk about, well, if,if I've had a stroke
(17:44):
and I can't function and I'm not going to recover,I want you to pull the plug.
Indiana will allow you to disconnectfrom mechanical means keeping you alive.
But. But you need to tell
the person that the physician walksin that hospital room,
and and he's going to,or she's going to expect an answer fairly quickly.
(18:04):
So you need to have painted a picturefor your health care
representative that causes them to have a memory
of that conversation, which should be fairly
harsh and, and something that they'll remember
so that they can set the facts of the moment
into that conversationand know what you want them to do.
(18:25):
That that's really important is that conversation.
And you also need to make surethat the stakeholders in your life have heard
it also as to as well as what to do
with your remains when the end comes,
because those situations are just
rife for the family to disagree.
(18:45):
And and you want all the heads in the hospital room,which I define as the stakeholders,
to be nodding in agreementwhen the person actually in power
says doc, we choose option number two.
I don't want half yes and half no.
Those stakeholders need to hear it from your mouthas to what you want done.
Yeah.
So what I'm hearing is,if you are looking to appoint somebody in your life
(19:10):
and you want to have these conversations,maybe set a time to have the conversation,
and make it an eventso that it stands out, in the person's head.
Casually mention mentioningthat you want to be buried on a Tuesday
to your health care representative,or the person making this end of life decisions.
It's a little bit of a jump scare
for the person on the receiving end,and then it may not be super well-received.
(19:33):
Again, these conversationsdefinitely can be uncomfortable.
I appreciate what you're saying, that choosingthe right person who will carry out your wishes,
even when it's a little bit more difficult to doso is really important.
Years ago,I would get that question, when do I do this?
And I said,well, here's the best time; on Thanksgiving,
(19:55):
everybody will be at your houseand people tend to gather into the kitchen.
So about the time that the pies come outand the bird goes in
is a perfect time,because that smell is going to go through the house.
They'll all come in, their kind of eyeball to the pieand the turkey going in, and then you've got them
(20:17):
and have that conversation at
that time because they're all going to be in one placeand you only have to say it once.
That sounds memorable.
That was my good storyabout when I told people to have that conversation.
Yes. do so with caution.
So, yes.
and then Guardian appointments.
So you mentioned this earlier,making sure that your children
(20:39):
are left in the hands of individualsthat you want to raise them.
I can't think of somethingthat's more important than that.
So can you talk about that?
It doesn't have to be a relative.
What you're looking for is someone who models
parent the way you want your child raised.
So that's the chief characteristic.
(20:59):
So that guardian with yougone is going to set your educational opportunities
for your child,their religious upbringing, their moral upbringing,
their ability to tell right from wrong.
So it's very importantthat you look among the people who you've encountered
and choosesomeone who models parent the way you want it.
(21:20):
It doesn't have to be a relative.
It doesn't have to be anyonewho is involved in your child's life.
It just has to be someone who you believewill do a good job in raising your child.
When you're not there.
And do you think that, that conversationshould also happen ahead of time?
Once you've made that appointmentor before you've made that appointment?
(21:41):
Oh, absolutely.
You need to have talked to that guardianto make sure they're willing to step forward.
And I also always want and I alternate
behind that first named guardian
in case that they look forward and they go,
I don't see myself doing this for 18 or 20 years.
I think I'll pass because they don't have to accept.
(22:04):
So you always want to make sure you have a backup,
particularly for that positionand also the trustee watching your child's money
because they're going to be around for 20 or 30 years, having to do that.
So those are things that you need backups for.
Absolutely.
Well, what I've gathered through this conversationand working with you
(22:27):
for many years now is thatthis isn't something that you need to do alone.
So as an attorney, you're going to help themwalk through the steps of maybe a foreign process
or an uncomfortable process, and you'll be thereeither for them or for the trustees that they appoint.
So I feel like that's comforting to knowthat you've been through the process many times.
(22:47):
so you'll be there for your clients and,the person involved in their estate plan.
Well, I appreciate that.
And yes, for the past, 46 years,but that's the kind of law.
And it has changed greatly in my years of practice.
And, I'm happy to say Indiana has done nothing except
make it easier to do an estate plan.
(23:10):
They've made it easier and cheaperwhen something happens to you
to make sure that your assetsgo to the people that you want them to go to
without any interference from the state,without any inheritance tax here locally.
It's just how good a plan
have you put together will determine how quicklyand efficiently
(23:31):
your intended recipients, receive their inheritance.
I feel that planningyour estate is not just about your finances.
It's about ensuring that your loved ones are cared for
and that your legacy is protectedthe way that you wanted to protect it.
By taking the time to create an estate plan
with, a very capable attorney like Kent,
(23:52):
you're providing a gift, of clarity and security
to your family during what,I'm sure is already a difficult time.
We hope that today's episode has inspired you to start
thinking, about your estate planning journey.
Remember, you're not alone again, in this process,seek out professional advice
like Kent and take the necessary stepsto secure your future.
(24:14):
If our listeners are interestedin working with you, Kent, how can they reach you?
Well, probably the easiest wayis just to pick up the phone and call me.
(317) 257-8787,I believe my other contact information,
like my email, is on Element's website,they can simply call I don't screen calls.
I'll be happy to talk to you.
(24:35):
We'll get together for an hourand let's talk about estate planning.
I don't charge for that initial conference,I like talking to people.
And and this is something I like helping them with.
So I'd be happy to talk to any of the listenersright now.
Yeah.
And I can personally say,I've had several members in people that I know
that I've worked with Kent on their family'sestate plan.
(24:56):
and something that I appreciate is a
he's like, the least attorney attorneythat I've ever worked with.
So, he speaks plainly.
You understand what he's saying?
I've asked him, I don't know about a million questionsup to this point, from working together.
And he's always been really graciousand he's never made me feel dumb
for having the questions that I dobecause this is not what I do all day, every day.
(25:20):
It is what he does all day, every day.
And I think that he has a passionin helping people understand
what's best for themand what's best for their families, and marrying
that to the current laws in placeto help them get where they want to go.
And then also, I believe that there's transparency in
what can Kent charges for, his services.
So I appreciate that.
because that is a thought process that comes up.
(25:43):
Is this affordable for me?
Is this something that my family can do right now?
So, thanks for letting us know that that initialconversation will absolutely not have any charge.
And then he's very transparent, moving forward,if there's going to be a charge involved.
At Elements, we'd also like to remind youto make sure that you've updated your bank accounts,
either with us, or with your primary
(26:04):
to have correct beneficiaries
to simplify the process and how things transfer.
And then if you have any further questions,please feel free to reach out to us at elements.org.
And for more helpful advice,check out elements.org/advice.
And thank you for joining us on Better Money withElements Financial as we chatted about estate planning.
(26:25):
We hope you were able to take something away to helpmake your money better.
Find more episodes at elements.org/bettermoneyor anywhere you listen to podcasts.
And don't forget to rate and review.
As always, reach out to us at bettermoney@elements.organd we'll see you next time.
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