Life Happens

March 23rd, 2024

Episode Transcript

(00:01):
Hey, good morning everyone. Welcometo Life Happens. I'm Lupiro, your
host for this morning, and wehope that you are snuggled around a fire
with a nice hot cup of somethingor other, Coco coffee, tea,
whatever it turns you on and listeningto Life Happens. We're going to bring
some really interesting information today, Sostay with us and Life Happens. If
you're a first time listener, bringsideas, information and plans for you to

(00:24):
bring your family into a safe space. So when you're looking at wills and
trusts and making sure your finances arein order, your iras four oh one
k's retirement income, social security andbuilding all that together with your estate plan,
how to do that, how tobring the right people in And that's
really what we're going to focus ontoday, choosing the right people. And

(00:47):
I can't emphasize enough how important itis to have the right people in place,
because you know what happens when youdon't put the right people in place,
The wrong people end up controlling yourfuture. That's never where we want
our clients to be. And todayI have with me are number one litigation
associate Jacob Verschiail Good Morning, Jacob, Morning Lou And Jacob has been handling

(01:10):
some really interesting litigation cases for ourfirm. He works with Aaron Connor,
my partner. They are the litigationdepartment at this point in time, but
it's a growing area of our fieldand Jacob, the reason this area is
growing is is people don't put goodplans in place and then people fight.
That's right, And I think alot of time too, when people are

(01:34):
asked to serve in these important roles. Right, A lot of our practice,
whether it's the planning part or thelitigation part, circles around this concept
of fiduciary responsibility. It's a bigword. So and I learned that when
I was in law school. Whatis a fiduciary and what does that carry
with him? Right? So wetalk about it a lot on the show,
But a fiduciary, you know,I think the number one point that

(01:57):
has to be driven home and wetalk about somebody who takes on a fiduciary
role is that even when the opportunitypresents where they could benefit themselves, they
have to put the principle right theperson for whom they're serving in a fiduciary
capacity to whether that's a beneficiary orsomebody who's passed away with a will,

(02:20):
and they have to put the otherperson's best interests before their own and make
decisions that are going to benefit everybodyand not just themselves. And that can
be pretty difficult sometimes, right,very difficult, And the lines blur as
time goes on. And we're goingto talk about the different roles that fiduciaries
play, because you can be afiduciary under a whole different series of documents.

(02:44):
We start with things like a powerof attorney, and someone that you
appoint as your agent under a powerof attorney is a fiduciary, And just
talk a little bit about what thepower of attorney does, what their role
is, and that little oath ofoffice that they have to sign at the
end. Now, right, apower of attorney is one of the documents
will call it that vests generally speaking, during the principle's life. Right,

(03:08):
So a principle is the person whowants to appoint an agent. The agent
is known as an attorney. Infact, under a power of attorney,
why would you need one? Whywould I need a power attorney? So
that's to handle the finances, right, So healthcare proxies are similar, but
they deal with medical decision making.But an attorney, in fact, the

(03:28):
power of attorney is for financial decisionmaking. And if it's executed during the
time when the principle still has youknow, competency, then technically the agent
can be accessing all the finances andmaking gifts and making important financial decisions at
the same time, even as theprinciple. So as I sit here today

(03:51):
and I think about it's a snowyday in Albany. If you're not,
haven't gotten up yet. Looking outthe window, and you'll listen to the
radio, it's snowy, two tofive inches of snow. It's a one
of those end of March days whereyou're just okay, enough, let's move
on. But the roads are alittle bit slippery, they're a little bit
slushy. I slide into a car, I get hit in the head,
and I'm unconscious and I'm up inthe hospital. I happen to have a

(04:15):
law firm called pier O'Connor and Strauss, and somebody needs to deal not only
with my bills, my mortgage payments, my car payments, all the things
that I have as normal bills,and my bank accounts. But I have
a business right and I need tothink very very carefully about who I choose
to run that business. And anybodywith a business needs to think this part

(04:40):
through very carefully. But even withouta business, the things that a power
of attorney carries with it, andit says right on the front page of
the power attorney document in New YorkState, this is a legally binding document.
You are giving significant rights to youragent, who is your fiduciary under
this doc. It scares a lotof people when they read that language,

(05:02):
but the bottom line is you readthe language at the end, and this
is what I want to kind offocus on. At the end of that
document, the agent, the fiduciary, the person who is signing on to
do all of these things, signsa piece of paper that outlines what those
fiduciary responsibilities are. Just talk alittle bit about that. That's new to
the law, relatively speaking, withinthe last ten years or so. So

(05:28):
you're discussing specifically the responsibilities of theagent. Why I call their oath of
office that they have to sign onto, so you know, the agent
takes on a big responsibility. AndI think a changees depending on how many
powers are outlined within the Power ofAttorney document, they're all the same,
right exactly, so you know,and again everybody has individualized legal needs.

(05:51):
So you know, when people cometo us, for example, we're not
always advising that every box spe checked, but if you're electing the right fiduciary
for the role, then you shouldfeel comfortable checking all those boxes, right.
So it's literally just about everything everyfinancial decision that somebody needs to make.

(06:12):
If a if a power of Attorneyform is completed in its entirety,
becomes the responsibility or at least theauthorizes the agent to make those types of
decisions. So you know, yourexample here running a business, that person's
really stepping into your shoes in thatin that capacity, and you know it's

(06:34):
important right to also be factoring indoes that agent have their own business,
right, because now instead of runningone business, they're running their own business
or their own their own career andseparately, you know, out of the
blue, now also responsible for runningthis second business that maybe they don't have
very much involvement with. And we'regoing to talk a little bit about more

(06:57):
sophisticated documents. The power attorney isimportant. It is a crucial document because
there are certain things that you cannotput into a trust, like a retirement
account, So you always need apower of attorney whenever you have assets like
that that are not trust assets.And we're going to talk about trusts and
why trusts provide a much better protectiveshell around your assets than merely a power

(07:23):
of attorney. But with the powerof attorney. At the end, they
sign an oath saying that they willalways act in the best interests of the
person appointing them, the principle wecall them. They will never commingle their
funds with the principles funds. Theywill keep accurate books and records of all
of the transactions that they engage inas the power of attorney, and that

(07:46):
if the power of attorney has donean estate plan, that they will always
follow that plan. So a fiduciarydoesn't get to superimpose their judgment on the
person that appoints them. They getto carry out the wishes of that individual
as they're stated in a will ora trust, and that oath of office

(08:07):
is legally binding, and it putsthat finuciary in a position where they have
signed on and agreed to all riceand that can at times lead to legal
liability, or at least the threatof legal liability, if those records aren't
maintained, if funds are determined tobe commingled. And just to be clear,

(08:28):
right, what we're talking about byco mingling and saying, you know,
the principle, you know has thesebank accounts or these various sources of
income. And if the agent orthe attorney in fact is taking that money,
even a portion of that money anddepositing it into their own bank account
or approaching reimbursement in the wrong way, right, perhaps they covered some expenses

(08:52):
for the principle, and they thinkit's okay to simply, you know,
reimburse themselves in the way that wewould if you are borrowing money from your
other father or sister or brother.But it's got to be a little it's
got to be handled a little bitdifferently than that, because there does have
to be accurate records and you donot want to give the impression of any
impropriety. And that's where the fightingstarts. Yeah, because in our office

(09:16):
we see it every day, peoplecoming in saying, hey, my brother
got this lawyer to sign to havedad sign a power attorney. He came
in transferred Dad's house to himself.Now we won't move out. We have
that case in our office. Wehave cases where things have been done by
the power of attorney unbeknownst to allthe other siblings and the parents. And

(09:39):
the power attorney is a very verypowerful document. So you need to have
the right person or people in placeand in the document, Je Jacob.
There are several things that you cando. One of the easiest things is
you appoint a co agent. Soif you want somebody to buffer the decision
making of person who you say,well, you know that I trust them,

(10:01):
but there's always a butt I trustthem, But you put another agent
on it and talk about how youcan structure the agency so that you have
a system of checks and balances inthe document. So, in the concept
of how this comes up in thecontext of conflict, right, we see
it in various ways. One wayis that a sibling or another family member

(10:24):
is simply spiteful and upset that youknow, Mom or Dad selected my brother
and not me to serve in thisfiduciary capacity. Right. And while co
agents seems like a like a simpleand easy fix for this type of a
problem. You got to be carefulwith that too, right, because when

(10:45):
we talk about co agents, we'rereally talking about one of two things a
A you know, one has tobe selected over the other. You're either
dealing with co agents who are goingto make decisions jointly, meaning that a
decision cannot be made. We're talkingabout a power of attorney. We're talking
about a financial decision. Some ofthese decisions need to be made urgently.
So if you have two agents andyou have them appointed so that they have

(11:09):
to make decisions jointly, well,what if there's a standoff? Right then
you end up either going to courtor following some other process to try to
figure out whose decision is going tobe final. The alternative would be to
have two or more co agents,but giving them each the authority to make
decisions on their own. And obviouslythat can be good in the context of

(11:33):
it. A decision can get madehere and now when it needs to be
made. However, there can becontradictory decisions being made if each agent is
out there making decisions on his orher own and there's another provision. The
State of New York takes this veryseriously. So the form that we use
and work with is a statutory form. We massage it and we add to

(11:56):
it. So the statutory form wouldbe about four pages. Ours is about
fifteen pages. So we had alot of language and we had a lot
of things that we think are veryvery supportive for our clients. But in
that document there's also the ability toappoint a monitor, and very few people
take advantage of that. But ifyou want someone to oversee what your agent
is doing, you can appoint someoneright in that document that has a legal

(12:18):
responsibility to monitor the agent and theactivities of the agent. Right. And
we see this also coming up alot with some of our other documents as
well, right, particularly trusts andhaving either a trust advisor or a trust
protector somebody as a sort of alast resort. Right that if you thought
you selected the right person and theygo off the rails, maybe they're being

(12:41):
coerced by another loved one. Maybethe emotional strain from serving in this type
of fiduciary role or losing a lovedone, you know, is really affecting
them and they're not making their bestdecisions. We like to put things into
our documents to ensure that there's thislast resort, last person who can step

(13:01):
in, intervene, take some stepswhen they see that things are being done,
sometimes unlawfully. So we're gonna takea short break, but we're gonna
come back and talk about who isthe right person to put in these different
roles. Do you choose your spouse, your children, one child or multiple
children? Do you go outside thefamily? Do you choose your attorney.

(13:24):
If you have a long standing relationshipwith your attorney or your accountant or a
professional, how do you find theright combination to make sure that you are
secure? And then we're going totalk about how to get up into the
world of trusts, because that's wherewe do most of this planning, and
we can build a trust and it'snot Fort Knox, but it's darn close

(13:45):
so that it's going to protect you, your assets, your family on into
the future. When we come back, I'm going to open up the phone
lines and take your questions and comments. Right now, we're going to take
a short break. You're listening toLife Happens Radio Talk Radio wg WHY every
Setaturday morning at eleven am. We'llbe right back and Lou Piro live in

(14:11):
studio on a snowy, sleety,rainy Saturday morning here in the Capitol Region,
Live in studio with Jacob Verscherau,one of the litigation attorneys at Pierre,
O'Connor and Strauss. I'm going togive you that phone number right now
if you have an issue, ifyou have a question of comment, if
you've been dragged through the mud inone of these cases where you've either been
appointed or had someone appointed that didthe wrong things. Gives a call.

(14:35):
Eight hundred eight two five five ninefour nine. That's eight hundred talk WGY.
If you like letters, I likenumbers. Eight hundred eight two five
fifty nine forty nine. And Jacob, we're talking about the power of attorney,
which is a document that is therefor you during your lifetime. It's
a document that is a staple inthe estate planning practice, been around for

(14:58):
a very long time. It doeshave a s actuatory backing to it,
but it isn't without problems, andwe've elicited or articulated some of those problems
this morning. And when we lookat planning for our clients, we very
often take it up a notch toa different level, and people say,
well, either I don't have awill, I have a will, or

(15:20):
I have a trust. Those arekind of the three options. The default
option is you do not and youfall into intestacy. And then the court
selects somebody who comes in and they'reappointed by the court without any direction from
you. They're an administrator and theyjust get the petition based upon a pecking
order in the statute. You neverwant to be in that situation. So

(15:41):
at a minimum, you want tohave a will, and in the will
you appoint an executor, and theexecutor has certain functions, certain duties.
And then if you create a trust, you have a trustee. And as
we go through this progression, Jacob, we talk about the fiducier and the
fiduciar duties. You're a power attorneyduring lifetime. Then it ends you have

(16:02):
a trustee that can be both duringlifetime and at death, and you have
an executor that is only after deathand after probate is achieved. Correct,
So just talk a little bit aboutthe two roles we haven't yet opened up,
and that is executor and trustee andwhat are their functions. And I
also want to comment on on youknow, another slippery slope, which is
when the when the attorney in factwho's handling finances during somebody's life is not

(16:29):
necessarily the same person or people whoare going to handle things as the executor
executorcs after death. Right. Soif certain planning, if certain financial decision
making has been made towards the endof somebody's life, and now somebody else
is stepping into those shoes, itcan get complicated for well for everybody,

(16:49):
right, but certainly for the secondperson to try to continue to make the
decisions in the same manner as aswhat had been done during life. But
yeah, as lou as you indicated, the power of attorney ends at the
end of somebody's life. And youknow, we've also talked about on the
show a lot there's a misconception Ithink about wills, right, and a

(17:12):
lot of people think that the momentsomebody dies, my executor is already in
those shoes filling that role. Well, no, what you do in a
will is you a point or nominatewho you want to have as your executor,
right, But the executor actually,the power of the executor does not
vest until the will has been admittedto probate in the surrogate's court and receives

(17:37):
what I like to call the driver'slicense or the drivers permit to allow them
to take action on behalf of theestate. And those are called letters testamentary
or in the case where or somebodydies without a will, letters of administration.
Yeah, I can't tell you howmany banks I hear from. Let's
say, well, you know thesepeople, they just came in and they
came in with a will and said, here's the will. I'm the executive

(18:00):
or who says, so right here, I want to open up, I
want to get control of this bankaccount. And they tell her says,
no, you need to go toa law firm. Here's three law firms.
Pick one. You have to gothrough Proby, and you have to
go to court. What they toldme that that the will works by itself,
Folks. The will needs a judgeand a court and a process and
it's going to take you probably ayear to two years in a good case,

(18:22):
could take you much longer. Wecertainly have a states, Jacob that
have been dragged out by by thepeople involved in those states for years.
And it's not something that is tobe taken lightly. It's a job,
and this is something people don't reallyunderstand, Oh, I'm the executor.
That's a good thing, right,Right, I'm honored, right, And
it is an honor. It's anhonor for family members or loved ones or

(18:45):
friends to ask you to serve inthat role of trustee, or to serve
in that role of executor or executicks, or to serve as attorney. In
fact, right, you should feelhonored. But before you say yes,
you got to take a step backand look and say, do I have
the time, the space, theability to make this kind of commitment because

(19:07):
it is a big commitment. Infact, it's such a big commitment that
in a lot of the cases,especially with trustees and executors, the law
actually has statutory language that pays thefiduciary commission and pays for executor services pretty
well, right, I mean,so, depending on the size and complexity
of the trust or the estate thatyou are responsible for managing, right,

(19:32):
it can for some people become verylucrative. It can pay very well,
and it can also be a fulltime job. Yeah. And if you're
drafting a will, you're creating yourown will, and you say, okay,
I want my kids to serve andI don't want any of them to
get paid, they're going to servewithout compensation. You put that in the

(19:53):
will and that's binding on it.They do not get paid if you do
not provide compensation. Then again theydon't have to serve if you do not
provide compensation. And it's statutory compensation, and the statute is pretty generous.
So if you are appointed executor andyou have and we talked about this a
little bit before the show, ifyou just have an estate that has assets

(20:18):
in probate, be it house,brokenich account, bank account, and you
have let's say four hundred thousand dollarsin the probated state, you get five
percent of the first hundred, fourpercent of the next two hundred, and
then three percent of the last hundred. So you're up to seventeen thousand dollars

(20:41):
in compensation for serving as executor.And if it's just a bank account,
all you do is go to thecourt, get letters testamentary through your attorney,
distribute the bank account, get arelease, and you're done. Some
estates, I wouldn't be the executorfor all the money in the world because
when you have the parties that arenot getting along, and probably the most
egregious estate that I've ever handled.There was no will. It's called a

(21:04):
probate in an intestacy. An administrationnot approbate, So in intestacy somebody has
to step up and petition the court. There were eleven children and the primary
asset of the estate was a houseworth about three or four hundred thousand dollars,
and the eleven children didn't really talkor get along. Nobody wanted to

(21:26):
step up. The kicker is inthe house that the dad lived in was
a son who was an alcoholic whodidn't want to leave, so no one
wanted the job. These two sistersstepped up. They petitioned to be co
administrators of the estate, and bythe time we were done, we had
to go to court to get anorder of protection and an eviction to get

(21:48):
the brother out of the house.And it was not pleasant for them.
And I mean we had tapes withdeath threats left on answering machines. It
was a nightmare for these folks.And sometimes people get into that and you've
handled some of those estates as well, currently handling many of those types of
estates. Loo right, Yeah,I tend to only get involved in the
litigation department. When there's some conflict, and when oftentimes I'm dealing with people

(22:15):
who are a little bit regretful,I think that they stepped up into the
shoes of the executor or trustee.I think there's definitely some you know,
questions of is this worth it?Right? Yes, I was honored,
but if I had known that itwas going to be this much work.
The example you just offered is anexcellent example because it's not something that anybody

(22:40):
would dream that they'd have to dowhen they accept the role of executor,
and that is doing things like handlingevictions. Right, But if you're representing
as the personal representative or executor ofan estate, and the estate owns real
property, and you have to sellthat real property in order to distribute it
to all the beneficiaries. But there'sa ten or two they're digging their heels

(23:00):
in and holding over. Well,if that would have been the responsibility of
the decedent because they were the landlord, well, you're filling those shoes.
Now. Not all the beneficiaries arerational, they're not all sane. In
this case, there was a shotgunin the house and the threat to turn
them into Swiss cheese. If theystepped on the porch, So it gets

(23:22):
dicey. And the compensation that isafforded by the statute is because there is
a significant amount of work that goesinto handling those estates. Absolutely a big
time commitment, a lot of emotionalstrain depending on you know, how the
family dynamic is. We see ita lot with step families, of course,

(23:44):
right, because oftentimes a new stepparent comes later in life and the
step children and step parent don't alwaysdon't always see eye to eye, right,
and watching dad or mom fall inlove with a new per towards the
end of their life and saying,wait a second, we thought we were
getting all of this stuff, andnow you know, stepmom or stepdad will

(24:07):
be will be uh one in controlof all of that. And we've brought
up some of the most egregious casesthat we have. Most cases are not
like that. But even in anormal case quote unquote normal, there are
issues that have to be dealt withthrough the probate process that could be avoided.
So when we come back after thenews, we're going to talk about

(24:29):
utilizing a trust to avoid many ofthe pitfalls that people fall prey to.
And again, if you want togive us a call. It's eight hundred
eight two five five nine four nine, eight hundred eighty two five fifty nine
forty nine trusts wills, choosing yourexecutor, your trustee, your agent,
under the power of attorney, havethe right fight Ducherry in the right place

(24:51):
at the right time. We'll beright back. You're listening the Life Happens
Radio. Right after the news Wakeup the radio, Land. You're listening

(25:11):
to Life Happens Radio. I'm Lupiro, your host for this morning live in
studio here at the WGY Beautiful Studios, and I'm in studio with Jacob Verscherau,
associate attorney at Pierre O'Connor Strauss whohandles litigation for our clients. And
Zach is in the booth waiting foryour phone calls. So give us a
call. The lines are open.It's eight hundred eight two five five nine

(25:34):
four nine Talk WG. Why oneeight hundred talk WG. Why would love
to hear from you. We've gotsome great things to talk about, and
this is an area, Jacob thattypically gets people impassioned when we start talking
about the controversies and the well,you know, it's like the Smotherest brother's
mom always liked you best. Butin a family, when these things happen,

(25:57):
the lid comes off and the Pandora'sbox has been opened. So when
we're talking about a power of attorney, you're appointing someone that you trust to
carry out financial affairs for you duringyour lifetime, during times when you can't
do it for yourself. So youare by definition unable to take care of

(26:18):
your own affairs. If you've giventhat over and you're allowing that person to
do it, you can always takeit back if you're competent. If you
see that someone's doing the wrong things, you can always just revoke that power
of attorney and take that authority back. But there's a better way. When
you have a will, you havean executor, you have probate contest,
and we'll come back to that fora minute. But the document that we

(26:40):
like that really gives us an abilityto tailor a plan to your needs,
to craft it based upon your situation, your family, the people that you
need to have as your fiduciaries.As we said, is a trust,
and we use living trusts to bridgethe gap between life and death to have
a smooth and efficient and immediate transitionof assets over to your success or trustee,

(27:07):
and to have an ability to craftprovisions in that document that not only
give your fiduciary authority, but givethem guidance and give them direction as to
how they want your estate to becarried out. And Jacob. Trust administrations
and the fees for trustees are verydifferent than executors because it's a lot less

(27:27):
work. It's less work, butit's also often right. Even though the
states can can take years to resolveand settle, you know, trusts are
intended to continue for many, manyyears, right, So the role of
trustee is something that people take onfor often a long time, you know,

(27:52):
during life and then after the grandhour passes away. And very often
we can get a professional involved here. If there is the need for a
professional trustee, it's typically a trustcompany. And we'll talk about that.
We have Marie on the line inAlbany. We'll start with you, Marie,
good morning, Welcome to life happens, Thank you, good morning.

(28:15):
My grandmother passed away thirteen years agoand my grandmother and her two of her
children, one being my mom andmy uncle are her like main beneficiaries to
pardon me and all the grandchildren alsogot a small percentage of a will.
There's some unclaimed fums in York Statethat the executor has refused to go after

(28:38):
and doesn't want to be bothered with. Do I have see rights as a
grandchild to go after that money?Good question, Marie, So yeah,
sure, you know if the estatecan be reopened. Oftentimes estates won't be
permanently closed. They're often informally closed, which means that there's left open this
possibility that if other assets, includingunclaimed funds, should arise, it leads

(29:03):
open the opportunity to UH to topetition the court reopen the estate. UH.
And yes, absolutely, you cancompel a fiduciary to do their job,
and if they refuse to do theirjob even after being compelled, UH,
then then the court does have theright to revoke those If you have
been listening in we talked about thatdriver's permit that allows an executor executricks to

(29:27):
make that decision right the letters testamentaryor administration if it if it's not,
and if the if the fiduciary refusesto take a take on the responsibility,
UH, then those letters can berevoked and reissued to somebody who will step
up to the plate. But howdo I do that as a grandchild?

(29:48):
Is there something that I've called NewYorky Unclaimed Funds and they said that,
you know, you need to copythe certificate to start. Well, I
as a grandchild in New York State, you cannot get the guest certificate.
So normally what we would right,So normally in a case like this,
what we would do is we'd startwith the letter to the court asking them
for a status update and confirming thatit's informally closed. From there, we'd

(30:10):
file a petition, uh, andwe would serve it on the executor.
Right, So it's filed with thecourt and it's served on the executor.
And what that petition does, it'sliterally a petition to compel the executor to
take action. And that specific actionthat would be outlined in a petition like
this would be specifically, we arecompelling the executor to go back to New

(30:32):
York State on claim funds and wrapup this estate, right, finish handling
the business that they've agreed to doby taking this oath and taking on this
fiduciary role. You'd serve it withthe court. There's file it with the
court, serve it on the executor, and the court would then set you
know, some court conferences up giveyou guys the opportunity to say each side's

(30:56):
position, and from the the courtprocess would would decide how this is going
to go. Right, So,either either the executor is going to be
compelled to take this take this on, or like I said, if they
refuse, then you could follow upwith a second petition or possibly included in

(31:17):
the same petition asking the judge thatif this person, this, this fiduciary
refuses to do their responsibility, thenyou're asking the court to revoke their letters
and reissue them, you know,perhaps to you if you're willing to step
up to the plate and take onthis responsibility. And Jacob, I'm gonna
jump in. I am here,Marie. Jacob gave you the legal answer,

(31:37):
which is if you follow all ofthose steps, and that's exactly what
you would want to do. Topursue it through that legal channel, it
gets expensive because you need to helpthe lawyer. So how much money is
in unclaimed funds and that may determinewhat course you're going to follow. I
would say like maybe fifteen hundred dollarsat the most. Yeah, when it

(31:59):
comes to petitioning the court and goingto court, you may end up spending
more than that to collect that fifteenhundred dollars. So that becomes that's what
I was thinking, the consideration andall litigation. You know, do you
is the juice worth a squeeze assure? Is it worth going through the
steps and spending the money to getat that? And this is your uncle

(32:19):
that's not wanting to go forward?Correct? And is your mom still with
us? Yes? Has she steppedin or has she volunteered to step in?
And he says, oh, he'sin charge. I don't want to
get involved. Okay, well thirteenyears our mother left him in charge thirteen
years later, and my only recourseis wait till they both pass away,

(32:43):
and then I could. But Ican't even get the death certificates to go
to unclay funds. They said,you need that to start the process.
Maybe we can help you, butwe absolutely one hundred percent need a copy
of that without being a child,you can't get that. So I'm watching
your extending, like of my caseand millions of other people who's money or
tied up like this new York States, just making all the interest on this

(33:04):
money. That's well, let meask you this, that's not there.
Would your mom be willing to justget a death certificate because she's entitled,
she's entitled. Yes, it's tendollars or a local town office, and
I mean, I guess I canask her to be federal records, your
vital records. And right now ifthe I don't know, if there's still
a delay, but the last afew times, well it's she died at

(33:28):
home and it's in a town sothe town office has a copy of it.
So you're aware of that. Sojust ask mom if she'll go in,
ask for the desertificate, pay theten bucks, get the des certificate,
and see if you can unlock itwithout going through that court proceeding.
Because I can tell you from myexperience, fifteen hundred bucks would be spent
very quickly in a court proceeding.That's what I was thinking as you're both

(33:50):
talking. And I just don't understandif someone has this role, I just
and they're not going to act onit. They're not going to I sent
them letters. I tried to helpthem. I call him, I've give
him the website I've mailed him inthe information of what he has to do,
and he just not, you know, not bothered, can't be bothered.
Is there a successor executor appointed inthe will his wife? Oh?

(34:15):
Okay, that puts you in abox. I was gonna say, if
it's your mother, where he couldresign and she could pick it up and
take it on. But I thinkgoing trying to get it through just straight
to unclaimed funds, get the desertificatesthrough your mom. Try that angle and
hopefully you can have some success thatway. Okay, all right, thank

(34:35):
you, Thanks for your call,Marie. Anybody else out there with a
question or a comment or a case, give us a call. Eight hundred
and eight two five five nine fournine eight hund talk w G Why Jacob.
We were talking and this is kindof an interesting case because a recalcitrant
executor is worse than no executor.Yeah. Absolutely, But also that that
presented an interesting uh concept, rightshould at times from a practical standpoint and

(35:07):
a financial standpoint. Right, eventhough this is somebody who's charged with marshaling
these assets and distributing them, ifit was going to require an illegal work
or professionals to be hired, andit was going to cost more to hire
those professionals, you know, torecover something not necessarily unclaimed funds. But

(35:27):
whatever it may be, right,that executor may have to make a decision
as to like, what's what's better, right to risk spending fifty thousand dollars
on lawyers to recover thirty thousand dollarsor just not pursuing it at all.
And the people the beneficiaries may notnecessarily agree, right, They may not
see it from all the same perspectives, And there's sometimes two paths or more

(35:52):
to the same result. Right.So that's the judgment of the fiduciary,
and that's a great reason to pickthe right person to be in that role,
someone who can exercise judgment, whocan act and take the actions necessary
to collect the money, collect theassets, and deal with all of the
business of the estate, and theydo get paid a decent amount of money.

(36:15):
We're gonna take another short break,but before we do, I want
to talk about a couple of educationalprograms that are coming up in our firm,
Pier O'Connor and Strauss. We liketo teach. We think learning is
the best way to become a goodclient. Educated clients are by far our
preferred people to work for, soyou can join us. Coming up is

(36:35):
a seminar that we're doing in conjunctionwith Dave Kopek, our colleague here on
WGY. Is going to be Aprilsixteenth at the Crown Plaza Hotel. Registration
is five point thirty PM, theprogram is at six and it is a
dinner seminar, so you'll learn aboutincome and assets, how to grow your
wealth, how to prepare yourself forretirement, execute properly retirement, make sure

(37:00):
you have the income and assets protected. We're gonna wrap our legal planning around
that and talk about wills and trustsand how all of your assets should be
dealt with within your legal plan.So Dave Kopek, myself and Aaron Connor
will be your speakers and you canjoin us again April sixteenth at the Crown

(37:20):
Plaza Hotel five point thirty pm.Registration six PM is the seminar and you
can register right now. We havea seminar hotline five one eight six two
eight four two five five again fiveone eight six two eight four two five
five, or you can always registerat WGY Seminar dot com. We're happy

(37:44):
to be doing this in conjunction withWGY, so please join us at the
Crown Plaza in April sixteenth and onemore. We do a thing called Medicaid
Mondays, and our next Medicaid Mondayis going to be April eighth. I'll
be on with Frank Heming and we'regoing to explore the process of navigating care
at home if you have a lovedone or if you yourself need assistance aging

(38:07):
in place with a disability, livingat home, you want to stay at
home, how do you get thecare you need? How do you pay
for that care? You can registerfor the webinar. It's Medicaid Monday.
It's noon to twelve thirty and that'sright through our firm, so that one
is not a WGY, that's apure o'connoran Strauss program. You can register

(38:27):
by emailing info at purolaw dot com, register on the website at purolaw dot
com, or give us a callat any time at five one eight four,
five nine two one zero zero.A lot of phone numbers there,
Zach, hope they can remember themall. I'll repeat them at the end
of the show. Right now,we're gonna take a short break, come
back, and we're going to talkabout trusts and trustees and what you want

(38:49):
in a trustee. Who do youwant to serve, how do you want
to structure their powers, what compensationare they entitled to? And how do
you put all the pieces together tomake sure your wishes are carried out.
We'll be right back after the shortbreak. All right, we are back.

(39:12):
We're gonna pick right up with aphone call Arthur in Mechanicville. Good
morning, Arthur, Welcome to lifehappens. Yes, Hi, can you
hear me? I can hear you? Just fine? How can we help
you this? Mon? Okay?Good? My wife passed away almost two
years ago, and then her father, her mother predeceased her. Her father

(39:34):
just passed away several months ago.And from what I can determine, left
the will and left the assets.They have, a home, they own,
whatever other assets they might have toone sister, one of my wife's
sisters. She had two sisters,and left it to one of the sisters.
Do I have any standing, soto speak, as the husband of

(39:57):
my wife, to ask about thewill that challenged the will? Let me
just ask a few because I wantto get the timing right. Your your
wife's mother father passed away first?Correct. My wife's mother passed away about
five years ago, and then thatleft whatever asset they had to her husband.

(40:19):
My wife's father, yep, andthen he passed away or your wife
passed away first. My wife passedaway first about two just under two years
ago, and then her father passedaway several months ago, and he had
a will, that's my understanding,and that will left me appointed one of
the three sisters as the executicks andapparently left everything to that one daughter.

(40:49):
So the key to this is goingto be whether you and your wife had
any children. We do. Wehave two children, all right, and
that's really I guess My interest moreso is that, obviously, if I
were to contest anything, if Ihad any standing to contest it, it's
not for the benefit of my wifewho's deceased, but my two children,

(41:13):
adult children who are the grandchildren ofthe of her father who deceased. So
that's the key, and it's yourkids. How old are your kids?
My son is forty eight and mydaughter's forty. So under the law there
are distributees and what we call legatesand distributies are people that by law would

(41:38):
have inherited if there was no will. And when you have three children who
were still alive, one is deceased. The deceased child has children that step
up into their place. So ineffect, you now have four beneficiaries,
two that would have inherited a thirdand two that would have inherited one six

(42:01):
being your two children. But theyhave rights as distributees to look into the
estate. They have to get servedwith process, and Jacob, I'm gonna
let you take it from there.Yeah. Yeah. So what Lo's explaining
right now is if there was nowill, right and if we had just
an administration process, things would passby way of intestate and technically your kids,

(42:22):
because your wife predeceased her father,her inheritance would pass to your children
if there was no will. Now, we think there was a will,
but we don't know that there wasa will, Okay, It's possible that
the will was just never admitted toprobate. Okay. So it's possible,
like we talked about earlier in theshow, that there's this will, this

(42:44):
executed document, this piece of paperthat might name one of your wife's sisters
as the executiricks. But if shenever actually submitted it to the court and
took those steps, well, thennobody would have ever gotten noticed that it
happened. Right, So one thingthat we do in this case is we
can file petitions to compel the productionof a will. So where you think

(43:06):
a will exists but it hasn't beenproduced yet, you can file papers with
the court servant on the person thatyou believe to have knowledge as to the
whereabouts of that will and ask thatit be produced. Now, if it
is produced, right, and itappears to be a valid representation of what
your wife's father wanted and it giveseverything to one of his daughters at the

(43:30):
expense of your wife and the othersibling, well then you're gonna have to
accept that, right, your kidswould have to accept that and move on.
If there's reason to believe that thatwill is invalid, for example,
you do compel the production of it, and it is produced, and you
realize, hey, he didn't signthis thing at the end, or there
wasn't two witnesses, or this thirdpage looks really fishy, right, it

(43:53):
doesn't look like the other pages.Okay, There are various mechanisms within Surgu's
corps law that would enable you totake action right whether the other grounds that
are going to come up are goingto be what were the circumstances of his
health before his death, what washis mental status at the time the will

(44:14):
was signed, and was he underany undue influence to leave a will where
he cuts out two thirds of hischildren and leaves everything to want. Those
are all of the things the factsthat have to be uncovered and unearthed before
a will goes to probate. Yourtwo children have to get served with a
waiver, it's called a waiver ofcitation, and they have to get a

(44:36):
copy of that will. So ifthere are probate assets that require that will
to go through probate, then yourchildren are going to be put on notice
that that will is going to court. If there are no probate assets,
and this is also a possibility,then the will is in needed. If
a trust, if he had atrust, if he had beneficiary designations on

(44:57):
accounts those are not going coodor yeah. So there are a lot of facts
and circumstances that go into it.But your kids are in the position that
if there is a will, they'llget notice of it. If they want
to force the issue. As Jacobsaid, they could petition the court to
compel production. It's easy for youto say to compel production of that will,

(45:19):
and it's in the normal course ofthe probate. They should be notified
that the will is being probated.They have to be, they should have
been, and they have to beby law because a family tree, right,
anybody who submits a will to thecourt has to also submit a family
tree and an affidavit from somebody who'sknown the family for a very long time

(45:42):
indicating did they have any children,If they did have any children, are
they still with us? If theyaren't with us, do they have any
children? Right, So, allof the people that would take if there
was no will have to be notifiedbecause they're the ones who are going to
be what we refer to as interestedparties under the SEPA. Are your kids?
So yes, they're entitled to Noticeably. He passed probably about six months

(46:05):
ago, so they've received no noticeat this point. Is that Is it
possible that it just hasn't been enoughtime for that process to have played out.
It's possible. That's certainly a possibility. The other possibilities are that there
are just no assets that require probate, that they were all gifted to his
daughter before he died, or shewas the joint owner or beneficiary on all

(46:28):
of the accounts, in which casethe will doesn't even come into play.
I think that's a great learning tool, right. Somebody can die a multi
millionaire and give everything to somebody undertheir will, But the people who are
going to take under the will mightget zero dollars if all of the money
was already in a trust, alreadyin joint bank accounts, if homes and
real property were co owned with others, the moment that person dies, there

(46:52):
is nothing left in the estate.There is no estate, so that is
a possibility as well. I Myunderstanding is that the house was still in
the deceased in her father's name whenhe passed, but that he left it
probably to the one daughter. Ifwhat's a period of time that should go

(47:14):
by before my children should maybe requestto petition the execut tricks to produce the
will. So there are two placesI would look before you do. One
is I would check the county clerk'soffice because the deed will be recorded,
and if he recorded any subsequent deeds, you know, if he needed it
at the last minute to his daughter. That would be recorded in the county

(47:39):
Clerk's office and you'll find out exactlywho the title is owned by through the
county clerk. That's a simple step. You can go to the county clerk,
ask for his name and any deedsthat are in his name, in
and out of his name, andyou can find out whether the house is
in his name or not. Ifit's in his name, it has to
go through probate, and then youcan go right to the Circuit court and

(48:00):
ask if anything has been filed insurrogate's court, and that's an open record.
But with that said, I thinksix months is a fair amount of
time, but we certainly see peopletake years to it before they file because
it's emotional and it's it's a lotof work. So it is possible that
six months has just gone by theyjust haven't gotten around to it for various
reasons emotional, money, other responsibilities. Slow lawyer. But if your kids

(48:22):
truly feel that they might be entitledto it, then you know, feel
free to give the office a calland get a petition filed. All right,
after we have one more call wewant to get in and it's Glenn
and sco Harry, thanks for thatcall. That was a great call and
Glenn, good morning, your lifehappens. We have about two minutes,
so give it to a quick.We have an irrevocable trust through you my

(48:45):
mother in law for my mother inlaw, and she is in a nursing
home and it's looking like she's goingto stay there, but I'm not sure,
and I know that the trust willhave to be taken apart because the
trust has only been it's only threeand a half years old. The five
year look back that continue if she'sthere for say another three years, it

(49:08):
really doesn't have any of any doesn'texpire in a year and a half,
does it. So in other words, the nursing home and Medicaid is still
gonna want their money for the nextthree years. This becomes glad, It
becomes a numbers game. If it'sand we'll do the calculation for you,

(49:29):
just give us a call to theoffice. But if it's better for her
to just pay for the next eighteenmonths, privately wait out the full five
years, that's the maximum that youwould be down. But if it's better
for her to break the trust,we can actually break the trust and do
something called a rule of has transfer. So it's going to come down to

(49:49):
whether you're going to save more byjust private paying for eighteen months or breaking
the trust and pulling the money backand then doing a second transfer, which
would then be done with a promisewhere you note we call it the rule
of halves. So it's just ait's a number crunching game that we can
do for you, absolutely and tellyou which is the better course for your

(50:10):
mom to take. All right,So I see, so there is an
advantage. There could be an advantageto just paying the bill for a year
and a half, absolutely, andthat depends entirely on how much is in
that trust. Okay, that's allall right, Thanks for the call,
glad, appreciate it. Give usa call it the office. We'll run
the numbers for you. All right. We have about a minute left,

(50:34):
so we're going to talk about TRUSTecommissions, which are a little bit easier
than executor commissions depending upon how longthat trust lasts. So when you do
a trust, you're putting somebody inplace for a very long time that's going
to manage things for people. Whenyou have an executor, they have a
timeframe one, two, three years, they're in there, out they're done.

(50:55):
So that's one of the primary differencesin those trustees. Although they collect
smaller commissions upfront, may collect commissionsfor a very long period of time.
Jacob, thanks for joining me todayin studio. That was a great show.
Thanks for all of our callers callingin. Remember April sixteenth, Dave
Kopek announced doing a seminar at theCrown Plaza. We'll be back next week.