Life Happens 05-17

Episode Transcript

Speaker 1 (00:00):
Good morning everyone. Welcome to Life Happens Radio. Are you prepared?
This is our weekly radio program for individuals and their
families where we address the challenges we all face as
we age. We talk about aging as a lifestyle, the
issues that must be confronted, and the careful planning that's
required to avoid crises in the future. Life Happens will
provide you with tools to educate and prepare yourself for
events like retirement, protecting your income and assets, planning to

(00:24):
pay for nursing, home and home care, special needs, willson trusts,
planning for an untimely death, and resolving disputes in and
out of court. I'm Aaron Connor from Pure o' connor
and Strauss, joined this week by Brent Stack.

Speaker 2 (00:38):
Good morning, Brent.

Speaker 3 (00:39):
Good morning, Aarin.

Speaker 2 (00:40):
If you don't know, Brent's been with us almost a year.

Speaker 3 (00:43):
Now, right, since July of twenty four.

Speaker 1 (00:46):
Yeah, so we're getting there. Brent does the litigation with me.
He probably more specializes in guardianships than trust litigation at
this point, but he's learning, learning.

Speaker 2 (01:02):
As we go.

Speaker 3 (01:02):
We do the messy stuff.

Speaker 1 (01:04):
That's right, you know, if you and your sister or
you and your brother don't like each other. Now while
mom and dad are alive, it doesn't usually get better.
Mom and dad are usually kind of the referee in
that situation or like an anchor in it. Like I

(01:25):
don't mean that in a bad way dragging you down.
I mean that like as a kind of like the
sun with you know, pulling you in.

Speaker 2 (01:32):
Right.

Speaker 3 (01:32):
Yeah, the shatters that we've seen in families when mom
and dad go.

Speaker 1 (01:38):
Right because people don't necessarily have to behave anymore right
like people should behave. And sometimes it's justified, and sometimes it's, Uh,
you've got a tricycle when you were three and I
did not, And it just never gets better. It honestly
is amazing to me how many people like actively keep
score over their lifetime.

Speaker 3 (01:59):
Yeah, and I think a lot of these people don't
see it coming right, and it makes me, you know,
it's sad. I want to go home and hug my sisters.

Speaker 2 (02:11):
Well.

Speaker 1 (02:11):
Obviously, having a good family dynamic is much better, right,
And one of the issues is the more people you have,
the harder it is to get along, just because there's
that many more personalities. You know, there may be five
of you, and four of you get along great, but
then there's one person or I mean a lot of

(02:32):
times there's a component of mental illness to someone, right, yeah, sure,
And in the older generation a lot of undiagnosed mental illness, untreated,
medicated if that's the appropriate course, but even lack of
any kind of therapeutic and just acknowledgment. And what I've

(02:54):
seen is when people age, it doesn't get better, it
gets worse, for sure. So if that's out there, you know,
some things are unavoidable. We try to put a plan
in place that avoids every kind of strife possible.

Speaker 3 (03:07):
I think you're right, planning, planning, planning.

Speaker 1 (03:10):
And but ultimately I used to work for a guy
who would say, you could sue the pope for adultery.

Speaker 2 (03:15):
Right, you don't.

Speaker 1 (03:17):
Really have to have like a claim that needs to
make a lot of sense to make people's lives difficult. Now,
hopefully there's no lawyer is going to take a case
that doesn't really have any merit, But that doesn't stop
people from acting what we say is pro se, meaning
without a lawyer, which is kind of the ultimate nightmare

(03:37):
in a courtroom. We have at least one large case
with a pro se litigant, and that has already gone on.
I think since twenty eighteen. I can't say for sure,
but it makes it more difficult. It certainly makes it
almost impossible to settle anything, absolutely because you can make

(03:59):
a very good offer and there's nobody to really guide
that person to say what will happen when you don't Yeah.

Speaker 3 (04:07):
I think the pro sy litigant is extraordinarily skeptical and they.

Speaker 2 (04:15):
Don't know what they don't know about procedure. Right.

Speaker 1 (04:20):
Procedure is very important in a court, and that means
how you initiate a case in a lot of ways. Right, So,
whether it's a complaint or a petition, and serving people,
serving the right people, serving them timely, having the contents
of a petition or a complaint that actually have to

(04:40):
be there, which in a lot of ways is not
terribly difficult in the Internet era, but sometimes like fraud
for instance, has a higher pleading requirement, certain things like that,
but service is usually a big trip up for even
serving the right people.

Speaker 3 (05:01):
Yeah, it is specialized. I mean we did learn something
in law school, correct. I mean, there's a reason that
we that we exist in this field. There's a reason
that the courts, you know, appreciate our skill set, our specialty.

Speaker 1 (05:18):
I mean we're not even talking about like substantive stuff
right Exactly, you actually have a.

Speaker 2 (05:23):
Case, can you get into the court right and before a.

Speaker 3 (05:27):
Judge exactly, because we're not talking merits here, we're talking.

Speaker 1 (05:31):
Right basics, right, Because I've seen lots of these just
get rejected out right because they don't meet the filing requirements.
The filing fee doesn't get paid, people don't get served,
and you only get so many cracks at this exactly.

Speaker 2 (05:45):
Sometimes you only get one crack.

Speaker 1 (05:47):
So it's important to have some some guidance and some
knowledge and to have a case ultimately right. But if
you do end up in a situation where it's sibling
versus sibling, I hope for your sake that everybody has
their own counsel, because it just makes things extraordinarily difficult.

Speaker 3 (06:10):
Yeah, there's a lot of pitfalls before you can get
to merits. I think. I think that's the point that
we're trying to.

Speaker 2 (06:14):
Make here, And.

Speaker 1 (06:17):
People tend to dismiss the counselor part of being a lawyer.
A lot of what we are doing is really counseling
people on what the best course of action is, and
they're free not to take our advice.

Speaker 2 (06:28):
I'm often surprised.

Speaker 1 (06:30):
How many people pay me and then don't do what
I tell them to do. Right, you're paying for my advice,
and you know you're you have agency, you're free to
do what you want to do.

Speaker 3 (06:42):
But I think you're you're exactly right. I mean, I've
found myself a lot in the last few weeks just
those making those difficult phone calls, just saying hey, this
is this is where we might get to, but this
is where we should go.

Speaker 1 (06:57):
And well, winning a court is not necessarily the end
of anything, right, absolutely, because people have the right to appeal,
and appeals can go on not forever, but basically forever,
and it's not good for anyone. I spend a lot
of my time talking clients about the emotional damage or

(07:20):
cost of continuing and if this is a case where
someone has died, you're likely not even grieving that because
you are continuing to plow through this. And sometimes that
may be necessary. But when we can get to a
point where it's just about as good as it's going.

Speaker 2 (07:37):
To get, we have to be realistic.

Speaker 1 (07:40):
And I'm sure everyone listening understands this, but Brett and
I do not work for free, and the longer that
we work, the less you are recovering, generally speaking from
the same pool of money.

Speaker 3 (07:53):
That's absolutely the case. Yes, some you know, some of
our unfortunate clients have have jumped immediately into litigation following
the death of a loved one, and I can guarantee
that they have not grieved because they've been in the
fight since since that day. Yes, And you know, I

(08:13):
think it's just that the further it drags out, I
think the larger the emotional toll it plays on the
entire family. And you know, I think our clients say
a lot of times, you know, I can't wait to
take so and so to court. But that's that's really
not what you want, is.

Speaker 2 (08:34):
Really, and we say it all the time.

Speaker 1 (08:36):
The only people who went in court are the lawyers, right,
And we do get good results for our clients. We
do time, we do, but sometimes it's better to negotiate
that ahead of time.

Speaker 3 (08:47):
Sometimes you get that person in the you know, sometimes
you do get that person to court and the judge
will say, go out in the hallway and figure this out.
And that's not what people want to hear. They think
that court is where you know, they can strike went
down with a lightning bolt, and they.

Speaker 1 (09:02):
Think it's going to be like a law and Order episode, right,
and in reverse, we're going to court first and they'll
go to jails.

Speaker 3 (09:08):
Right exactly. So it's we're here to help you resolve
your own disputes, but ultimately you're gonna need to participate
in resolving your own disputes with your with your loved
ones and with others.

Speaker 1 (09:24):
And I will say this, there are people who sometimes
contact us and they say, can you write my sister
a letter?

Speaker 2 (09:29):
We absolutely will not do.

Speaker 3 (09:31):
Okay, that is fruitless, nasty gram.

Speaker 1 (09:33):
No, don't do it. Not interested, gets no results. Just so,
we usually do want to be in a court context
sooner rather than later, because nothing gets resolved outside of that.
But how we get there, and kind of the tenor
of how we get there is important as well.

Speaker 3 (09:53):
It is helpful when you when you get that man
or woman in a robe in a room, absolutely because
everyone kind of they'll.

Speaker 1 (10:00):
Say, this is your problem, and this is your problem,
and I'm not making a decision, but you you both
have problems.

Speaker 3 (10:08):
It's helpful for you and I to get a judge involved.

Speaker 1 (10:12):
It's very rare that they say you are great and
you are terrible.

Speaker 2 (10:16):
That very rarely happens.

Speaker 3 (10:19):
Exactly. We stay in the gray an awful lot.

Speaker 1 (10:23):
But so if you're looking for complete vindication, the courtroom
is generally not right.

Speaker 3 (10:28):
Yeah, yeah, right, yeah, exactly. I think you're right. No
one's going to get one hundred percent win. We see
that very rarely.

Speaker 2 (10:36):
I mean it's not it would take years.

Speaker 3 (10:38):
It would take years and.

Speaker 2 (10:40):
Thousands upon thousands of dollars to do that.

Speaker 1 (10:43):
And it's really the judge is not interested in that either.
The judge is interested in solving the problem in a
fairly reasonable and quick way.

Speaker 2 (10:54):
So we're coming up on our first break.

Speaker 1 (10:56):
When we come back, we're going to continue and talk
about state litigation and trust litigation. This is Life Happens Radio,
and we'll be back after this. Welcome back to Life
Happens Radio. I am Aaron Connor from Peer O'Connor and Strauss.
We are in a state planning law firm. We do
also do medicaid work, in guardianship work, and a.

Speaker 2 (11:17):
State and trust litigation. I'm joined by Brent Stack.

Speaker 1 (11:20):
He is also a litigator by trade.

Speaker 2 (11:23):
So we are talking about litigation. Shocking.

Speaker 1 (11:29):
We were talking about some of the problems that can't
be solved by litigation. In the first segment, there are
problems that can be solved by litigation too.

Speaker 3 (11:36):
Yes, sometimes it is necessary.

Speaker 1 (11:38):
Unfortunately it's unpleasant and stressful, but there are sometimes that
it's just not going to get done otherwise. And these
can be in estates, they can be in trust, they
can be in a guardianship. So a lot of times
this happens when mom or dad is alive, right, Usually.

Speaker 2 (12:00):
Not both right.

Speaker 1 (12:02):
I have had a rare occasion where we have alleged
that both mom and dad are incapacitated, but that's unusual.
Usually it's the survivor, and it may be that they're
not taking care of themselves. This could be, you know,
house could be in disrepair. We've seen all sorts of
garbage and animals and infestation.

Speaker 3 (12:23):
And a lot of financial abuse. Also, we see a
lot of financial abuse where that's the more common. You know,
these these scams will it whether it be online scams
or phone scams. We've seen a lot of of our
alleged incapacitated people being taken financially being taken advantage of

(12:46):
financially right.

Speaker 1 (12:47):
And most of these cases are not clearly incapacitated person. Right,
I mean good days, good days and bad days.

Speaker 2 (12:56):
Right.

Speaker 1 (12:56):
When it's clear that someone is incapacitated, it's a very
easy is not the right word, but it's not as
difficult as it is when we have waning capacity, correct, right,
because having been a court evaluator, right, and the person
that is a court evaluator, their role in a guardianship

(13:17):
is to interview people and review documents and see what
the facts are and see what capacity is like, and
to come to a set of recommendations. That is someone
appointed by the court who is a neutral and Brent,
you've been in that role, yeah.

Speaker 3 (13:34):
Kind of the eyes in the ears of the court, right,
take all take the entire story and present it to
the court with a set of recommendations.

Speaker 2 (13:42):
Because the truth is usually somewhere in between.

Speaker 1 (13:44):
Absolutely, you get a petition that says X, Y and z,
you're going to get an answer that says, probably that
none of that is true other than the person's name
and birth date, right, and maybe the kids are right.

Speaker 2 (13:56):
So, but and then you have.

Speaker 1 (14:01):
Usually when you get a good court evaluator, they see
this person more than one time, Yes, because I've seen
it many times. Someone with waning capacity can turn it
on for a short period of time.

Speaker 3 (14:13):
Yeah, capacity is a tough issue. You want to have
a conversation that lasts more than ten minutes because you
can you can see some of these people oriented to
time place who the president is. But then all of
a sudden, you know, things start to slip, And I

(14:37):
think that's tough for family members. They don't they don't
see that. I think, like you said, with waning capacity,
it's it's almost like when you're driving your car in
your own breaks start to go. You know, you just
press a little bit harder on the pedal each time,
and you don't really comprehend that things have gotten out
of control.

Speaker 1 (14:58):
Right, and by the time you're at Flintstone stopping the
car with your.

Speaker 3 (15:01):
Feet, we've got a real problem, exactly right, exactly, And
unfortunately that's that's where we come in. But you know,
we can come in then and help you sort through
your your incapacity issues in terms of getting a guardian
appointed for your loved one. And there are a lot

(15:22):
of things that a guardian can do to kind of
right these wrongs. You take over financial control, you can
stop that financial abuse, you can get more of protection
against whoever the financial abuser is. We can help with
nursing home placement. The guardian can can do nursing home placement,
I think the only thing that And it's important to
note there are limitations on guardianship. You can't place your

(15:45):
loved one in a mental institution or a drug and
alcohol facility, and you can't you can't write a new will.

Speaker 2 (15:53):
Yeah.

Speaker 1 (15:54):
I mean a lot of times people come to us
and they are trying to get guardianship over a relative
usual who has mental illness, and it is very difficult
unless that person is willing to give you guardianship. The
problem with even with that, though, is if they change
their mind, it can be a big problem. A little

(16:16):
known kind of provision of the guardianship world is that
if you want to terminate a guardianship, the burden is
on the person who wants to keep the guardianship, not
the person who's under a guardianship right, And in my opinion,
that's probably the pendulum swinging too much, too far to
the rights of the incapacitated person, because we're talking about

(16:39):
a person at that point who's already been determined in capacity.

Speaker 2 (16:42):
Right, there's no allegation.

Speaker 1 (16:44):
They've gone through a factual hearing or they've agreed, which
is a little bit different than they're technically a person.

Speaker 2 (16:51):
In need of a guardian.

Speaker 1 (16:53):
But so maybe under those circumstances it makes a little
more sense. But predominantly we don't agree to person in
need of guardian. We're agreeing to you know, a lot
of the contest is over who the guardian.

Speaker 3 (17:08):
Is a lot most of the time.

Speaker 1 (17:10):
There's occasional cases where capacity is an issue and the
person alleged to be incapacitated is fighting, but usually that
doesn't win.

Speaker 3 (17:23):
Out right, and it's it's a tough it's a tough
hearing when you know, when you're alleging that your loved
one is a person in need of a guardian, you
have to put on proof in front of them, correct
you know they're at the hearing, you're alleging all of
their functional limitations, and it's very uncomfortable. So oftentimes we

(17:48):
find that, you know, a more favorable outcome is someone
agreeing to being a person needing a guardian, not an incapacity.

Speaker 1 (18:00):
And they tend to like that better as well, because
they're not deemed incapacity.

Speaker 3 (18:04):
Absolutely, and and I do think you know, when you
are determined to be an incapacitated person. I think that
the court has as some reporting requirements. I think that
you kind of you might be flagged as a person
who's incapacitated rather than a person who's consented to having
a guardian, right, and so there are there are future consequences.

(18:28):
And also, yes, these these proceedings are uncomfortable for families.
It's not a situation you want to have yourself involved in.
So that's why we often recommend that you get yourself
lined up with a health care proxy and a power
of attorney. The court at a bare minimum, the courts

(18:51):
will not appoint a guardian for you if you have
those things in place. So I think it's recommended that
all families, as people age, you do your planning, You
get your health care proxy, you get your power attorney,
you set up your trusts, you get your wills in order,

(19:11):
and then you can avoid avoid coming into court under
these unfortunate circumstances.

Speaker 2 (19:16):
Right.

Speaker 1 (19:18):
The best guardianships if you will are Mom or Dad
agrees to who the guardian should be, and it really
can be like a ten or fifteen minute hearing. Absolutely, yeah,
that's the best it gets and those happen. But to
be fair, we've probably spent close to ten thousand dollars

(19:40):
to get to that point. So you know, I'm not
going to say what a power of attorney and health
care proxy costs, but as well less than ten thousand,
absolutely right, So you don't want to be there if
you don't have to. It's better to pick who you
want to be in charge. That's the other thing that

(20:02):
maybe people don't consider is that in a guardianship, the
person in charge isn't necessarily the person you would have
been appointed, right, right, maybe the person with a better lawyer.

Speaker 2 (20:14):
Right.

Speaker 1 (20:15):
It may be that the person you would have appointed
has some issue right that you could have appointed.

Speaker 2 (20:24):
So I don't know.

Speaker 1 (20:26):
Let's say five years ago, it was a complete bar
if a person had a felony to be in a
guardian correct, right, and I certainly understand the thinking. But
relatively recently in the legal world that was changed to
it's a factor, but it's not a complete bar. And

(20:48):
it may be some kind of felony that's I don't know,
not related to the types of things that would.

Speaker 3 (20:53):
Matter, right. I think it's yeah, I think you've you've
got county Department of Social Services is your guardian of
last resort. They're overwhelmed. Yeah, you don't with that with guardianships,
they're short on staff. It's not it's not ideal for

(21:14):
your loved one to have the Commissioner of Social Services
become their guardian.

Speaker 1 (21:19):
Right, which really means that an attorney in that department
is probably.

Speaker 3 (21:23):
There, right, and a social worker. Yeah, and you're gonna
your minimum visits per year, et cetera. There's just four, right,
which isn't a lot. It's not a lot. You've got
your there's a it's it's called the Part thirty six list,
which is.

Speaker 2 (21:41):
It's the turn number of choice.

Speaker 1 (21:42):
It's the thirty sixth choice that you would actually want
to be your guardian.

Speaker 3 (21:46):
It's called that, and that's not a great result. So
the courts have loosened the the prohibition on felon's sometimes
your family Sometimes your family felon is uh is a
better guardian than social services or a Part thirty six lists.

Speaker 1 (22:08):
So I mean, if the felony is embezzlement and mom
or dad has some money, they're.

Speaker 2 (22:12):
Not going to get appointed typically yeah, without a bound.

Speaker 3 (22:15):
Typically financial uh, any any sort of theft, fraud, or
physical abuse would probably be a bar if it's a felony, right,
elder abuse. Elder abuse certainly would be seen as a
problem by the courts. But but yes, you you know,
something like arson if it's okay, all right with that, Yeah,

(22:37):
that's okay. But but but again that's why you said.
And and you know, I think we've in your power
of attorney you can state this is who, uh you know,
I point as my my power of attorney, my attorney
in fact, to be my agent. And I don't want

(22:58):
a guardian, but should I need a guardian, this is
who I want to become my guardian. That's something that
you can do to appoint to avoid the family felon
becoming your guardian. So again, I think it just it
all comes down to careful planning. Do it when you
don't think you need to do it. That's probably actually
when you need to do it is when you don't

(23:19):
think you need to do it.

Speaker 1 (23:20):
Well, you can't wait till you need it exactly, that's
too late, yep.

Speaker 2 (23:25):
And things can go wrong that way. A lot of things.

Speaker 1 (23:30):
We unfortunately have clients die before they complete their documents.
We have clients occasionally become incapacitated before you exactly. So
once you're incapacitated, everything's out the window.

Speaker 3 (23:41):
Right, Your ability to plan is severely limited.

Speaker 2 (23:46):
That's right.

Speaker 1 (23:47):
So we're coming up on the news here, so please
stay with us when we come back. But when we
come back, guardianships are not the only type of litigation
we do. We do some trust litigation, and when we
come back, we'll get into the ways that that can
happen and the strategies that need to be in place

(24:08):
and who needs to do what in that situation.

Speaker 2 (24:11):
This is Life Happens Radio.

Speaker 1 (24:13):
I'm Aaron Connor from Pierre O'Connor and Strauss and when'll
be back right after this.

Speaker 2 (24:20):
Welcome back to Life Happens Radio.

Speaker 1 (24:22):
Aaron still Aaron Connor, still from Pier O'Connor and Strauss.
My compadre is still Brent stack All Morning, still from
piero Connins. So we are a state and trust litigators,
guardianship attorneys. So we had really kind of run through
some guardianship issues on the first half of the show,

(24:44):
which you can always listen to on iHeartRadio if you
missed and you really want to hear it, So please
please do but.

Speaker 2 (24:52):
A large part of our practice is trustworth right.

Speaker 1 (24:55):
We do wills, we always do wills, but that's really
not where our client deriving the most benefit from us.

Speaker 2 (25:03):
We're planners.

Speaker 1 (25:04):
We are doing revocable trusts or irrevocable trusts, and if
you've listened to the show, you know that there's a
lot about.

Speaker 2 (25:12):
An irrevocable trust.

Speaker 1 (25:13):
It's not as scary as it sounds, and it's a
good vehicle for most middle class people to preserve property,
make sure it doesn't go to pay a nursing home
and goes to where they want it to go, whether
it's children, other relatives, charities, whomever.

Speaker 2 (25:30):
So that's what we try to do.

Speaker 1 (25:32):
We ultimately are trying to put a plan in place
to make sure you're covered, to make sure your loved
ones get or your beneficiaries get what they're supposed to get,
and the people you do not want to get things
do not And that may be removing you may be
removing a beneficiary, or you may be making sure that

(25:53):
a let's say, a child's spouse doesn't end up with
all the money or some other predator. As we say,
that's important to our clients quote unquote blood lining the
money right, and in most situations a trust can continue

(26:13):
on for a very long period of time. Now, New
York has something, at least for now, called the Rule
against perpetuities, right, which is a question on the bar
exam that ninety percent of the attorneys never comes up, right,
But in real practice it doesn't, right. I mean, the
thing is so essentially the rule of perpetuities time is

(26:35):
about one hundred and twenty years because.

Speaker 3 (26:38):
Lives and being plus twenty one.

Speaker 1 (26:40):
That's right, right, So, I mean the longest anyone's ever
lived is about one hundred and fifteen years exactly. So
if you roll the dice and you got that person, great, right,
but unlikely. So let's just say you had somebody live
into their nineties, you get twenty one years. You got
about you know, rough math, lawyer math, in twenty years,

(27:00):
best case scenario in New York. In a state like Delaware,
you can have what's called the dynasty trust that can
essentially go on forever if you have enough money, right,
and you know, let's be honest, very few people have
enough money to create like a long lasting dynasty trust
like DuPont, Like the DuPont family, it was very involved

(27:23):
in Delaware.

Speaker 2 (27:23):
They owned a lot of property in Delaware.

Speaker 1 (27:26):
And they had a lot to do with how the
laws were drafted in this favorable way, and the DuPont
family would be a family that still have generational wealth
well downstream, yep, but you can still create kind of
your own I don't know many dynasty trust if you want, well,

(27:48):
we try to make sure that money goes to your kids,
not their spouse. And then if something happens to your child,
that goes to your grandchildren, again not to the spouse. Right,
if you wanted to go to the spouse, hey, great,
we can make that work too. But that's that's like
two percent of people.

Speaker 3 (28:05):
Yeah, I think you're right. I didn't do I didn't
do a lot of trust litigation before I came to
the firm, right, And I've been learning a lot about
trust since I've been at the firm, and I think
what a lot of people don't know. I think you're right.
Some people are afraid of irrevocable trust or or trust
in general. But I think you're right. I mean, it's

(28:26):
not just for the rich, it's not just for the DuPonts,
it's for everybody. It's by far the best way to
protect your assets and your wealth and to pass it on,
like you said, to who you want to receive it,
and to protect it from who you don't want to
receive it, including the government. If we're you know, absolutely,

(28:47):
I think that's it's really important. You know, I've been
telling my family members since I've started working here. You
need to get in. You need to do this right.
You don't have to have a million dollars, you know,
any amount of wealth, and you don't. It's not just money,
it's not just cash. Well, right, it's your home.

Speaker 2 (29:06):
It's the easiest thing to put in.

Speaker 3 (29:07):
The trust is properly exactly right.

Speaker 1 (29:09):
And if you own property in two states, you really
want to trust because you don't want your family probating
in two places exactly, absolute disaster. Yeah, money wise, yeah,
I mean too.

Speaker 3 (29:19):
I think we've said it before on the show, But
the best gift that you can give your family when
you pass is the ability to avoid probate again and
pay the lawyer less, and pay and pay the lawyer
less money. Right, stay out of court if you can.
One way to want sure far away, to stay out
of court, to stay out of probate, which in a

(29:39):
lot of counties in New York State can take a.

Speaker 2 (29:41):
Really long time downstate complete night.

Speaker 3 (29:43):
Oh yeah, especially right, you can be in probate for
over a year, you know, just to have the will
approved and to then receive the ability to administer the estate,
which you know, all of these assets are are tied
up for a long time and you're paying out. But

(30:04):
if you put your property in trust and make sure
that you've got everything buttoned up the way it should be,
you can avoid probate. You can pass your assets to
your family members without going to court. And again it's
it's probably the best thing that you can do.

Speaker 2 (30:21):
You know.

Speaker 1 (30:23):
One thing that people don't really think about is if
you are leaving assets to non family members, right like,
you don't want your family.

Speaker 2 (30:31):
To get it, and that's that's perfectly fine.

Speaker 1 (30:32):
Sure, the only person in New York State that is
absolutely entitled to a portion of your state is a spouse,
and they're only actually entitled to a third right that's illegal.
So I mean, you could leave two thirds to someone
else if you really wanted to. I'm not advocating that specifically.
I'm not advocating that in case my wife is listening,
but so, but if you're leaving things to friends and

(31:00):
you don't have children, let's say it becomes really onerous
to do that in a probate probate.

Speaker 2 (31:07):
Proceeding easy for me to say, right.

Speaker 1 (31:09):
I met with someone this week that we're talking about
cousins yep as the just what we call distributees, people
who take in the absence of a will. And we're
talking about a number in the twenties of who we
have to serve, and we.

Speaker 2 (31:29):
Don't necessarily know where everybody is.

Speaker 1 (31:32):
It's going to be a long ride, and it's not
going to be inexpensive. And even you know in New
York you have the New York people, you have to
personally serve, how to stay people. You can kind of
get around the personal service, but you still have to
do certified mail. Then you have to do proof of delivery,
and I mean twenty six. Let's just say, if that

(31:53):
were to number certified mail, this is certainly going to
be less than twenty six personal service.

Speaker 2 (32:00):
But it's not.

Speaker 1 (32:01):
And then I'm sure that some of these addresses will
not be correct.

Speaker 3 (32:04):
I have a current case Aaron where forty eight individuals
are titled services.

Speaker 1 (32:09):
Yeah, that's a nightmare because all you need is one
with a screw.

Speaker 3 (32:15):
Loose, right, or they're going to start bouncing back, right.

Speaker 2 (32:19):
Or incapacitation right.

Speaker 1 (32:21):
I mean you get one that's in a nursing home
or under some kind of disability, and you've just gone
off the rails for a period of.

Speaker 3 (32:29):
Time guardian ad litem right.

Speaker 1 (32:31):
And you may not get your letters right away, right.
You have to ask for So when I say letters,
when you finally either a probate petition meaning there is
a will, or an ad administration petition meaning there isn't
a will, you get letters from the court, letters of
administration or letters testamentary, which are your authority to act
on behalf of the estate. And you can't really do

(32:53):
much without them. You can't martial assets, you can't open
a bank account, You're really not even supposed to be
like accessing properly.

Speaker 3 (32:59):
I don't think you can do a thing without them.

Speaker 1 (33:01):
Well, the gray area is real property where people are
trying to preserve personal property. So generally the recommendation is
to lock it down or if there's something particularly valuable,
to make sure that it's not Because I think you've
seen once personal property.

Speaker 2 (33:19):
Is gone, it doesn't come back. You know. Oh yeah,
here's the diamond I took from mom. I'm wearing it now.
That never happens, It doesn't happen.

Speaker 3 (33:27):
Yeah. How many times do our clients come to us
with a list of things that went missing and we're
supposed to retrieve them.

Speaker 2 (33:34):
Never happened.

Speaker 1 (33:35):
That can happen in the guardianship world too. The judge
always says, we're not going backwards, Yes, right, yep. Occasionally.
I did have a case where we initiated a lawsuit
against another person and did recover because they'd essentially stolen
real property, and then when the house sold, we got

(33:56):
her money back.

Speaker 3 (33:57):
Yep.

Speaker 2 (33:57):
But that's unusual.

Speaker 1 (34:00):
And real property is easier to attach, And what we
mean by attached is you can put what's called the
least pendance on it, which makes it very difficult to sell,
and without coming to an agreement of who's going to
get what, you're not going to be able to sell property,
which you can restrain a bank account, but it is
not very easy to do and.

Speaker 2 (34:21):
Takes pretty high level of proof.

Speaker 1 (34:26):
So if you're in a situation where you have non
family beneficiaries, you need to be careful and think about
what you're leaving behind.

Speaker 2 (34:36):
And I say this obviously all the time. It won't
be your problem, but what problems are you leaving behind?

Speaker 1 (34:44):
And I think that's important when people met with some
people this week. I did the planning for their parent
thirteen years ago, and it really was all teed up.

Speaker 2 (35:00):
Yeah, it was easier for that. I mean not easy.

Speaker 1 (35:03):
They lost a parent, which is a terrible situation, but
at least they didn't have to worry about how this
was going to be handled. And it's clean, it's relatively easy,
and it just gives people peace of mind. It gives
them one less thing to deal with.

Speaker 3 (35:19):
Yeah, I mean, try not to leave behind a court case. Correct,
And here's my leg Okay, yeah, and you can do that.
You cannot leave behind a court case. You know, It's
happened in my family some you know, things tied up
for years and my grandmother we didn't even know she

(35:40):
was doing it. She did the planning all on our own,
and it was it was just such a breath of
fresh air when my grandmother didn't leave the family a
court case. We found out that we found out that
all of her assets transferred out of probate. Yes, I think,
you know, I think a tax attorney needed to be filed.

(36:00):
But you know, yeah, yeah, I mean you can roll
the dice. I don't advise that.

Speaker 1 (36:06):
I mean, three out of my four grandparents did not
end up in a nursing home, but I don't think
that that's typically the case, and you want to be
People think that the transfer on death beneficiary is oh
I did my planning. Well, there's a lot of things
that can go wrong with a transfer on death beneficiary.

(36:27):
If your beneficiary dies before you, you have no beneficiary.
If your beneficiary is becoming capacitated for some reason, and
that really happens more often than you think. I have
emails from clients where they're unfortunately their children have some
fort a stroke or something like that, and we don't
want to leave them money directly. And if you leave
again a person money directly like that, their spouse is

(36:49):
going to get access sure, right, So that's not really
a plan. If you have everything in a trust, let's
just say an irrevocable trust, and you have a bank
account that you have control of, yes, it's okay to
have a beneficiary. We want you to have a beneficiary
in that, but that's not the ultimate plan for all
of your assets, right, and you need to be mindful

(37:13):
of that. I've told this story many times. My grandmother's aunt, so,
my great grandmother's sister lived to be about ninety five
or six, and she was mean. And I thought she
was just mean because she was old. But my dad's
cousin corrected me on that and said she was just
always mean and that was just her personality. Never had

(37:35):
any children, so you think she'd be like just flying high,
not not a lot to be like you, annoying you
in your life. She had a lot of money when
she went into the Trusian House in nineteen eighty one,
and when she died in nineteen ninety six, she didn't
really have any money, right. And the rules in nineteen

(37:56):
eighty one were you could have a trust that you
had full control over until you went into the nursing home. Gotcha,
the day you went in, you were triggered off. And
oh those were real rules. Like it's like mind blowing. Yeah,
oh walked in sorry, a new trustee and your money
wasn't available. I mean you could do that until nineteen
ninety three or ninety four.

Speaker 3 (38:15):
So I think that's another person. Yeah, I think that's
another good point, Aaron. I think a lot of people
have the miscont conception that when you place your assets
into trust that you don't have any access to them.

Speaker 2 (38:28):
Right.

Speaker 3 (38:29):
I think when when people come in, we tell them, like, listen,
you can be the grand tour of your trust, meaning
you're the one who contributes the assets to the trust.
You can be also the trustee and the beneficiary. You
can be all three and you still have access to
your money, but it's protected from from other factors. I
think that's what people have a misconception about, too, is

(38:50):
that you don't lose your assets when you put them
in trust. All you're doing is protecting them, but you
still have access to them.

Speaker 2 (38:57):
Well, it depends on the type of trust, right Right.

Speaker 1 (39:00):
In a revocable trust you wear all three hats, and
an irrevocable trust you have a trustee that's someone other
than you because we need that separation. But you still
can do so many things. You can change your beneficiaries,
you can get money out the back door, you can
change your trustee at any time, so it's not really
as frightening. We're coming up on our last break, so

(39:20):
when we come back, I want to talk about some
things that can happen in the trust world. To make
sure that you're getting what you're supposed to be getting.

Speaker 2 (39:27):
This is Life Happens Radio.

Speaker 1 (39:30):
Aaron Connor from Pio Connorance Strauss and we'll be back
right after this. Welcome back to Life Happens Radio. Aaron Connor,
Piro Conorn Strausse joined by Brent Stack, and we have
been talking about trusts, guardian ships and what can go
wrong and what can go right. Hopefully you get more
right than wrong. But we often are also encountering people

(39:55):
who maybe mom or dad set up a trust, or
an ant or an uncle or who who knows right,
could be anybody could be their neighbor, and they're a beneficiary,
but not generally the trustee because in the world of trustees,
there are many choices. It could be an individual. Sometimes

(40:16):
it's an accountant. Once in a while it's a lawyer.
I can tell you though that nine times out of
ten and a lawyer is a bad choice as a
trustee one for inattention two. They are not an investment professional.
So if you hire a lawyer as a trustee, and
that's really what you're doing, because any trustee is entitled
to a commission for serving and being a fiduciary, meeting

(40:40):
someone who has to act in the best interests of
another person, they're going to have to hire an investment advisor,
which you're also going to pay for it. So there
are trust companies out there. There are investment houses that
have separate trust divisions. There are some investment houses that
don't have trust divisions, but the bigger ones typically do,

(41:01):
and we see a lot so generally in my experience,
when people appoint a corporate trustee, it's because they don't
think that their children can manage the money, or we'll
spend it poorly, because a corporate trustee, while applying the
same standards, has a lot more to lose than an
individual trustee.

Speaker 3 (41:22):
Right. And they're also objective.

Speaker 1 (41:23):
Right, So if it says it can only come out
for X, Y and Z and us for a well
you're not going to get it.

Speaker 3 (41:30):
Oh yes, and I think you're right. A corporate trustee
is going to be hold the purse strings a lot
tighter than you know, a family member or someone.

Speaker 1 (41:40):
The right it's going to have, and even when it
has discretion, it's going to be less likely to use
it correct. You're going to be required to document a need.
So if your kid is going to college and you
want money for college, well, if they're in their freshman
year of high school, you're not going to get it, okay,

(42:01):
probably going to have to present a tuition bill that's
out saying you know what the cost actually is, and
then they will decide what to pay. They may pay
all of it, they may pay none of it, and
they may pay some of it.

Speaker 3 (42:17):
I think that's that's a good point too. With a
lot of trusts are for educational purposes, and I think
what we're running into a lot is what really is
the cost of education because colleges now they have a
tuition bill, but a lot of colleges also have mandatory fees.
And it's like, how can you separate tuition from mandatory fees?
Wells our books part of the no and there that's separate.

(42:40):
So I think right now I have a couple of
cases where we're interpreting the language of the trust to
see exactly what the beneficiary is entitled to. And I
think that's that's what you're talking about.

Speaker 1 (42:53):
Yeah, I mean so to date myself, but in nineteen
ninety four, when I was a freshman in college. Okay,
my books were five hundred dollars for one semester. I
can't imagine there's the same amount of money now, I'm
sure that they're more right.

Speaker 2 (43:08):
And some of those were softcover books, which.

Speaker 3 (43:11):
I remember aggravated me at the time.

Speaker 1 (43:14):
My astronomy textbook and I went to a place where
you could not see the stars at night because the
city lights were so bright. So it was really a
strange place to take astronomy. But I didn't really like
my other science choices. So anyway, but books, books can
be very expensive, so if you don't have other means,

(43:36):
that could be a problem.

Speaker 2 (43:37):
You know.

Speaker 1 (43:40):
I think most of the time, someone who establishes a
trust to pay for educational purposes is trying to avoid
that person being burdened by loans exactly because as a
law school graduate, I can tell you I'm burdened by loans, right,
not as bad as some people, but I mean, I've
been out almost twenty years and I.

Speaker 3 (43:58):
Still have a law school loan.

Speaker 1 (44:00):
So if you go to undergrad and then to graduate school,
you could owe like an enormous amount of money. So
if that is in fact the intent, and then you're denying,
let's say books or maybe even housing. Right, Well, let's

(44:21):
say to somebody around here, and let's say they want
to go to Siena but they want to live on campus. Right,
the trustee may actually deny that portion. I could, and
frankly they could probably support that if they wanted to.
Some of what that's going to depend on is how
much money is sent the trust. Then how would you
go about finding that out?

Speaker 3 (44:41):
Well, in that case, when when people, when beneficiaries come
to us and they say, you know, I'm entitled to
education from this trust, and the trustee is saying, yeah,
but I'm not going to pay for your books, What
what you and I would do is we would file
a supreme corporate seating for an accounting of that trust.

(45:02):
We would have the trustee come in and provide us
with the way that they have administered that trust from
the inception of the trust to when they started paying
it out. What have they paid and for what?

Speaker 2 (45:16):
And what are the expenses?

Speaker 3 (45:18):
What are the expenses and from.

Speaker 1 (45:20):
Tax filings, what have they taken in commission? What have
they paid out to under themselves? Maybe right right? If
it's a brother or sister or some family member.

Speaker 3 (45:28):
And how are they doing as a fiduciary.

Speaker 2 (45:30):
Right, and how are they right? Exactly? So have the
investments performed well? Right?

Speaker 1 (45:35):
If you had a trust that didn't make money in
twenty twenty four, we have a problem, right, right, it
didn't make money in twenty twenty five, well, and coming
back around exactly, Yeah, So you'd have a defense at
least there. But as a fiduciary, you are charged to
do the best with the money that you can.

Speaker 3 (45:55):
Yep.

Speaker 1 (45:56):
So, I mean, honestly, probably now, if you had it
in an an interest sparing account that was getting a
rate like four or five percent, like you see in
some offers, you probably would be okay, right, But most
money is invested in the market yep, to make sure
it's actually making real money.

Speaker 3 (46:13):
Yeah, And that's what I think our clients don't at
first comprehend the scope of an accounting, but it's really
you know, it's not just an accounting of the money.
It's an accounting of how you performed your fiduciary duty.
Have you expended the funds and the trust for the
purposes that the grant were intended? And how in general

(46:33):
have you done as a fiduciary. I mean, if you're
I think we have a lot of trust aaron that
you know, the trustee has a purpose to spend moneys
for a certain individual. But then what we have is
residuary beneficiaries. And who is the trustee really looking after.
Are they looking after the individual who is named in

(46:56):
the trust or receive the funds, or are they looking
after the residuary beneficiary who gets all that's left old
they may like better, who they might like better, right,
and might be and might be you know, preserving some
funds that otherwise should be expended for the purposes of
the trust.

Speaker 1 (47:12):
They might ultimately be that beneficiary.

Speaker 3 (47:14):
And they might be that beneficiary too.

Speaker 1 (47:16):
Yeah, it's a conflict of interest in a lot of ways.

Speaker 3 (47:20):
But that's how we get aft, that's how we get
at right.

Speaker 1 (47:23):
And it's a way for us to decide whether we
feel like we need to move to remove a trust
correct because most times we don't have information that shows us.
It's a high burden of proof because you can't just
go in and say I don't like this person.

Speaker 3 (47:36):
That's not how it works exactly.

Speaker 2 (47:38):
They have to violated their fiduciary duty.

Speaker 3 (47:40):
We have to see how they're performing right.

Speaker 1 (47:42):
Either self dealing, if they had taken money, if they
have not followed the terms of the trust, you know,
fraud all sorts of things, but number one would be
self dealing or a form of self dealing. Whereas if
they maybe are the trustee and the beneficiaries are their
kids and your kids, and their kids seem to be

(48:03):
doing better, you know, getting more things.

Speaker 3 (48:05):
Absolutely, so those things happen.

Speaker 1 (48:08):
They don't just happen in movies, but they happen in
real life too.

Speaker 3 (48:12):
And I think that's another good point too, is is
if you're coming to us or to whomever to establish
the trust, make sure that you identify, you know, pick
the right trustee, pick the right beneficiaries, try to avoid
conflicts of interest at all costs.

Speaker 1 (48:30):
Well, oftentimes I'm recommending something called a unit trust to people,
and that way, a set percentage comes out every year. Right,
maybe five can be more than that, but five is
a typical number, And that way it can be invested
for growth, right, and not worried about income, and.

Speaker 2 (48:47):
There's less discretion involved.

Speaker 1 (48:49):
Right, if you think there's going to be a problem,
or you think somebody isn't really great with money, you
can say, here's your set amount. It can come out
quarter annually. It can come out annually whatever.

Speaker 3 (48:59):
And.

Speaker 1 (49:01):
Eliminate that a lot of the discretion. And by eliminating
a lot of the discretion, you can eliminate a lot
of potential for a lawsuit. You can't eliminate an accounting
right because we need to be able to determine whether
somebody's doing what they're supposed to be doing.

Speaker 2 (49:15):
But there would be less discretion and a trust like that.

Speaker 3 (49:18):
And it's also I think important to note that any
beneficiary can request or demand compell and accounting at any time,
and I think that's the number one layer of protection
for a beneficiary, is that you have the right to
compel on accounting, and that's how you're going to find
out how the money is being spent. If you're kept

(49:39):
in the dark, that's what you do, right.

Speaker 1 (49:42):
And oftentimes there's concerns that the lawyer is taking too
much money too, so that's important and we can figure
that out. So we're coming to the close of the show.
I just want to say that this week we had
our big Elder Law Forum at the Destmond, So if
you attended or watched on online, thank you very much.
That's our signature event. Really one of two big events

(50:05):
during the year, and we had legislature, legislators and people
from the government to talk about what's going on in
long term care and manage long term care, so very
important stuff. If you didn't get a chance to watch,
please look online to see what is available. And if
you have an issue, please give us a call or

(50:26):
email us at the office.

Speaker 2 (50:27):
The office number is five one eight four.

Speaker 1 (50:31):
Or send us an email at info atprro law dot com.
That's p I e r R Law dot com and
we will be back next week. Thanks for listening, everybody,
have a great weekend.