Life Happens

May 24th, 2025.

Episode Transcript

Speaker 1 (00:00):
Welcome everybody to Life Happens. This is our weekly radio
program designed for individuals and their families or 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 the tools
to educate and prepare yourself for events like preparing for retirement,

(00:20):
protecting your income and assets, planning to pay for a
nursing home and paying for home care, special needs planning,
creating wills and trusts, planning for an untimely death, and
resolving disputes in and out of court. As the laws
and necessities for planning and care continue to evolve, Life
Happens will help you make smart decisions to ensure us
that your goals are reached and your needs are met

(00:40):
for both you and your family. So again, good morning, everybody,
Thanks for being with us on this holiday weekend. I
hope everyone's going to have a nice, long, RESTful weekend.
My name is Frank Hemming. I'm one of the partners
with Pierre O'Connor and Strauss. We are a full service
elder law firm located in Latham. If you've listened to
the show in the past, which I hope that you have,

(01:01):
I am one of the frequent co hosts. I don't
drive the ship all that often, but they tried to
trust me to do it every now and then. So
for everyone's listening pleasure, I am not just sitting here
alone in the studio today. I am joined by one
of our associates, mister Dylan You Kirk Hi, Dylan.

Speaker 2 (01:16):
More than Frank. Thanks for having me on the show.

Speaker 1 (01:18):
No, of course, thanks for taking some time to do
this with me, because we've been talking in the office
that you hadn't done a show with me yet.

Speaker 2 (01:24):
This is true. I've been waiting for it.

Speaker 1 (01:26):
So you've done some with Lou, you've done some with Aaron,
but now you get me, so good luck.

Speaker 3 (01:31):
I usually born the co host.

Speaker 1 (01:32):
If I go crazy, you have to get me, like
you know, back on board with what we're supposed to
be talking about.

Speaker 3 (01:36):
But I think we'll be okay.

Speaker 1 (01:38):
But again, so thanks everybody for listening and for spending
some time with us.

Speaker 3 (01:42):
So on life happens.

Speaker 1 (01:43):
We usually talk about planning, we talk about will's, we
talk about trusts. When I'm on the show, we tend
to kind of steer towards Medicaid long term care asset protection.
So obviously I think we're going to talk some about
that today, just because that's my wheelhouse and that's where
I think I can be of most help to everybody, Dylan,
in our office, why don't you tell everybody what you do,

(02:04):
just in case people haven't heard you know from you
about what who you are and what you do.

Speaker 3 (02:08):
Yep.

Speaker 2 (02:09):
So part of my practice is alongside Frank and the
elder law Medicaid long term care side, but I also
moonlight on the other side of the office and assisting
with state administration and trust administration after someone has passed.

Speaker 1 (02:26):
Yeah, I was to say, so, so you kind of see,
I guess like the asset protection part and the Medicaid
part where I tend to live. But then you do
a lot of assistance with families helping after someone's passed away,
which I always warn people I know enough to be dangerous,
but you know it's not where I regularly practice. So
anything that I say when it comes to that kind
of stuff, you know, take it with a slight grain
of salt. I'm not always one hundred percent, but usually

(02:47):
I'm okay to be dangerous. So so Dylan, we're both
sports fans, and so I think the last time I
was on the show, the Knicks I think pleasantly surprised
us and wound up beating the Boston Celtics. So now
they're into their Eastern Conference finals series. So good luck
to the Knicks against the Pacers.

Speaker 2 (03:06):
All I can say to that is go New York,
Go New York.

Speaker 3 (03:09):
Go there you go.

Speaker 1 (03:10):
Yeah, I remember, so, I tell people all the time, right,
I'm a big sports fan to this day. I remember
growing up the first sports love I ever had were
the Knicks. It was the first sport I ever kind
of got into spent time watching and caring about because
at that point, because I'm old now, the Knicks were
good and they made the playoffs just about every year,
and they would usually at least try to make her

(03:30):
playoff run. You know, they didn't win, obviously, but they
at least would make her run. So I remember having
plenty of weekend afternoons, either in my house or actually
at my grandparents' house watching the Nick games against It
was usually either Miami or Indiana, and half the time
it felt like it would go well for us, and
half the time it would not go well for us,
but ultimately we didn't wind up winning, you know, the end,

(03:52):
and then it's been pretty bleak since then other than
a few select seasons. So seeing the Knicks be good
again couldn't be happier for that. Obviously, good luck to
the Knicks. And if you lose, we're still proud of you,
but it'd be much better if you won, because you
haven't won since the seventies. A lot of us have
been waiting a while, so by all means, go ahead
and win the championship for us. And then I'm also

(04:14):
I'm also a Mets fan. I think most people that
listen to the show kind of know that, and that's
not been going so well, so I think I'm not
going to say anything further about that. But Dylan's a
Red Sox fan, so so right now he's got bragging
rights on me because the Red Sox are beating up
on the Mets, and so that's for once.

Speaker 2 (04:29):
I'm actually kind of happy about that. We're not going
back to nineteen eighty six here, So.

Speaker 1 (04:34):
Yeah, I would say, if it gets, if you get,
if you get, if you get mean to me or
anything like that, we can just start talking about eighty six,
but which I don't think you're really gonna like very much.

Speaker 2 (04:41):
No, not at all.

Speaker 3 (04:42):
Yeah, so that's so we'll avoid that.

Speaker 1 (04:43):
So anyway, let's actually maybe talk about the stuff we're
actually here to do.

Speaker 3 (04:47):
So whenever I run the show.

Speaker 1 (04:51):
In the past, actually i've I've usually started the show
talking about celebrity deaths and kind of things in the news,
and I think for the most part, we haven't lost
anybody noteworthy.

Speaker 3 (05:00):
Very recently.

Speaker 1 (05:00):
I was checking the internet and stuff just when I
was prepping for the show, and nobody really you know,
really note where they came up. I mean, I think
the last one that I can kind of think of
was the Pope, right, we lost the Pope. I know,
I haven't been on the show since we lost the Pope,
and now we have a new pope, but that's really
the biggest one that comes to mind. So so thank

(05:21):
you celebrities for not passing away, but not so thank
you for not giving me a nice, you know, easy
topic to start the show with. So we don't have
anything to do with that unless it kind of just
comes up in conversation. But I always The other thing
I like to try to do is just to give
some real life examples of some cases and some things
that we've been seeing in the office or some issues
that we've been dealing with. So one case that came

(05:44):
to mind was and Dylan, you were actually in the
meeting with me on this one. So if I'm misremembering anything,
by all means, jump in and talk to me about it.
But we had a family that contacted us, and their
their situation is a little unique. So Mom in this
instance is the one who needs care. Dad is still
doing pretty well. I mean he's getting up there in age,
but he's living on his own, doing what he needs

(06:04):
to do. He figured out how to get down the
zoom meeting with us, so you know, I was very
impressed with that, because I think he was a little
anxious about that, but he was able to figure that
out and we were joined by some of his children
and we had a nice chat. And essentially, so the family,
they've been snowbirds for a while where they spend half
the time in Florida or at least, you know, a
good part of the year in Florida, and they also
have a house upstate from us, so up in the

(06:27):
North Country and unfortunately, you know, mom or wife, depending
who we're talking about, right, but we have a person
in their life. She's not doing well, and unfortunately they
need to place her in a nursing home because she's
got a lot of cognitive issues going on. She probably
doesn't have capacity at this point, and she's gotten to
the point where it just it's too much for the
family to take on. And they're afraid that she's not

(06:48):
going to be safe unless she's kind of in a
more you know, structured and monitored environment. So it's appropriate,
I think, to go consider nursing home, which they had
already done. So so first thing that they have to
do is that to actually get mom back here, which
so they're all gonna fly husband and wife, and I
think I wouldn't be shocked if some of the kids
wind up going down, but they're gonna fly her back.

(07:09):
So we're going to get her back to New York
from Florida, and then she's going to go into a facility,
and then we're going to do some medicaid work for them.

Speaker 3 (07:16):
So that's great.

Speaker 1 (07:17):
I mean, I'm it's not great that she has had
these cognitive issues, and it's led to now needing a facility,
but it's nice that they've at least found a place
for her to go that they're comfortable with, closer to
where Dad now is going to be right when he
comes back to New York. And one of the first
things we talked about in our meeting was, you know,
have you guys done any planning before you have you
done documents before? And thankfully they said they had, and

(07:40):
then we talked a little bit about what they had
done previously. So one of the very first things I
asked about was power of attorney. Does Mom have a
power of attorney? Because that's going to be very important
probably to what we're talking about, And again, thankfully the
answer was yes. And then once we were able to
look at it, it does have gifting powers on it.
So we're going to talk further down the line in
the show about what some of this is and what
some of this means and why this is important. But

(08:02):
the power of attorney was well done, which is great.
So now we have the power to kind of do
whatever we need to do for Medicaid purposes for Mom,
which is great. And then we started talking about what
their assets look like and kind of what their financial
history looks like. And it came up that they did
some transfers of some property. Okay, that could be a

(08:22):
problem with the five year look back, so we started
digging into that a little bit and they said, well,
we have the Florida condo and we put the kids'
names on the Florida condo back in either twenty twenty
two or twenty twenty three, I don't remember exactly, but
it was certainly within the five years, which is that's
the important point for the story. So then next thing
we had to talk about then was well, that's a problem.

Speaker 3 (08:45):
And what are we going to do about it?

Speaker 1 (08:46):
And the LU Luckily, the nice thing is because they
have a well done power of attorney, we are able
to undo that transfer. So we're going to have a
deed done by Florida Council that's going to move that
property from kids back to mom and dad, which is
going to cancel out the transfer for medicaid purposes. And
then we're gonna have a second deed done where we're
gonna move everything just into dad's name, where then he

(09:08):
can shelter and we get mom on medicaid. And the
great thing about all of that is one, there's a
workable solution. Second thing is they had good documents that
allowed us to have a workable solution. And now just
because they've you know, they have a group of people
helping everybody. So far, the plan looks to get on
track that as soon as Mom gets back here, we

(09:29):
should have medicaids start for them pretty quickly.

Speaker 3 (09:32):
And that's the plan.

Speaker 1 (09:33):
And again to take home point of that is they
did some planning proactively, yep, when they were well, because
as I said, based on our conversations, I don't believe
Mom has capacity at this point, which means that she
couldn't sign a new power of autiornity at this point
if she didn't have one previously, And if that had
been the case, then we'd be talking about doing potentially

(09:54):
a guardianship for her, which is a court process.

Speaker 3 (09:57):
It's litigation.

Speaker 1 (09:59):
I don't get the sense of this family would cause
issues and not get along about this kind of thing,
But at the end of the day, you never really
know unless it happens. And while everyone who was on
our zoom call was very nice, on the same page,
very supportive, there were other family members that were not
involved with that call, so again you never know, So

(10:19):
again having that power attorney turned out to be kind
of the key to just allow us to kind of
do the planning necessary now to hopefully get a really
good result for this family. And it's all because they
did it proactively rather than reactively, because that they were
trying just to react now because something had happened, the
result would most likely be not only different, but it'd

(10:40):
be a lot more costly and a lot more stressful,
not that it's not stressful enough as it is, but
it'd be more stressful than what they're currently dealing with.
And it just I thought it was a really good
kind of just real life example of like how the
decisions you make when you're well can have far reaching
ramifications into the future, for good or for or for

(11:00):
not good. Unfortunately, So before we hit the brakedn because
we should probably take a break in a minute or two,
just because I didn't do this, because I'm not always
the best at this, tell everybody just what generally a
power of attorney even is, just to make sure that
people know what that is.

Speaker 2 (11:15):
Yeah, so your power of attorney is, it's a legal document.
It for the most part has been authorized by statute,
the New York Legislature has gone through and said what
it can contain, what it cannot. And what you're doing
is you're appointing an agent who can help you with
financial decisions. If you cannot sign a check on your own,
they can sign a check for you, they can go

(11:37):
to the bank for you, and there's a long list
of powers that you give them. What Frank was talking
about with gifting powers means that you can move money
from their name to someone else's name without receiving back
the full market value. So anytime you try to make
a transfer like that, it is technically a gift if

(12:00):
it's not for the full market value. And that's why
we really stress that when you are signing a power
of attorney, gifting powers are one of the most important
things that you can have drafted into that document.

Speaker 3 (12:15):
Exactly right, Sorry, excuse me, exactly right.

Speaker 1 (12:17):
I can't tell you how many times we'll see documents
come in from other offices that the gifting powers either
even aren't even on the document to begin with, or
they weren't initial, or they were ignored, or they were
kind of done piecemeal and we didn't really have everything
we wanted or needed.

Speaker 3 (12:32):
So again, it's very important to have those.

Speaker 1 (12:35):
So again, kudos to the family that that we're talking
about for doing some proactive things.

Speaker 3 (12:39):
So with that, why don't we take our first break.
When we come back from the break.

Speaker 1 (12:43):
We'll introduce kind of a little bit more of the
topic for the rest of the show and then we'll
kind of see where we go from there. So again,
thanks again for being with us on the holiday weekend.
Come on back to Life Happens after this break, and

(13:04):
welcome back everybody. Thanks again for sticking through the break
with us. Again, this is Life Happens. I'm Frank Hemming
from Pierre O'Connor and Streps still joined by mister Dylan
new Kirk. He didn't make a run for the door.
Yeah now yet the show's not over yet. There's time,
but he so far he hasn't done it. So the
first segment of the show, we talked a little bit

(13:26):
about power of attorneys and I kind of I tried
to give a hopefully an interesting client story about why
such a document is so important. So I figured this
would probably be a good time to kind of just
set the stage for the show and kind of talk
about what we're going to talk about. So obviously it's
Memorial Day. So first things first, obviously, thank you to
all who have served who continue to serve. So while

(13:48):
I know Memorial Day isn't exactly designed to say thank
you to the veterans who are still surviving, obviously I
think it's always a good It's always a good opportunity
to say thank you for those who are serving or
have served and are still with us. And obviously if
you have a family member, close friends, someone that you
care about who did either lose their lives or have
passed away who served, you know, thank you to all

(14:09):
of them. We would not have the country we have
without everybody that wears the uniforms that keep us safe
and allow us to have the lifestyle that we love
in this country. So, while you know I don't tend
to make it political statement anyway you could be happy
or not about current events and how things are going,
I think everyone can agree we live just about the

(14:29):
best place you could possibly be. So thank you for
everyone for allowing us to do that. So our Memorial Day,
as we remember those we've lost, I think it's usually
good to just have some time to think, contemplate, and
reflect on things. So obviously that's a good kind of
segue into thinking about, considering and ultimately coming up with

(14:50):
a plan to take care of things when the time
comes for you.

Speaker 3 (14:55):
Because as much.

Speaker 1 (14:55):
As we don't like to always think about it or
acknowledge it, right the time for everybody, and Dylan and
I and the rest of the attorneys in the firm,
we can tell you that things tend to go better
if you make a plan rather than if you don't,
for many reasons and in many different ways. So just

(15:16):
to get to give some examples in some context there, right,
if you don't have that power of attorney document, the
document we spent the first segment talking about, if you
don't have that, again, you have to go to potentially
go to court and get a guardianship over you if
you don't have the ability to sign one when you
need one. And we have people in our office that

(15:37):
do a lot of guardianship work. They do a lot
of litigation work. And while I like Aaron very much,
and I like Brent very much, and I think Tommy
and Peter tend to do some of this work too
down in our New York City office so well, and
Burly as well, so we like all of our attorneys
that do this kind of work, and I'm sure everyone
if you met them you would like them too. You

(15:58):
don't really want to meet them with the context of
having to talk to them about doing a guardianship proceeding
for your loved one, whether it's your spouse, your child,
your children, your parents, right your next of kid, whoever
they happen to be right, Because I mean, Dylan, you've
been in our office long enough. I mean, how often
do you hear one of the litigators walking by saying, like, man,

(16:19):
the litigation is going great, everyone's on board, it's costing
the clients nothing. Everyone's so happy they're they're doing this
and paying.

Speaker 2 (16:26):
Us for this that has never happened, exactly.

Speaker 1 (16:30):
Right, It's never probably going to happen. So you want
to make sure that you have a plan in place
for who can make your financial decisions, and then not
only who, but what decisions they can make, whether they
can make gifts to themselves or other people.

Speaker 3 (16:46):
Right, So that way we can.

Speaker 1 (16:46):
Kind of accomplish the medicaid planning, the asset protection planning
that we've talked a little bit about. But it's not
just finances that we're worried about. We're also always concerned
about health care decisions.

Speaker 3 (16:57):
Right.

Speaker 1 (16:57):
While monetary decisions are obviously very important, sometimes they're not
the most important. Sometimes you want to make sure that
your healthcare decisions are are buttoned up. And again, it's
not only necessarily what the decisions are, but who would
be making them. And I think one of the misconceptions
people have with talking about a healthcare proxy, because that

(17:18):
is the document that helps designate an agent for this,
is that these documents that we were talking about so far,
the power of Attorney, the health care proxy, they don't
take your ability away, right You, signing the power of
attorney does not limit your ability to continue to do
your things, live your life, pay your bills, have access
to your finances, do everything that we've talked that you'd
want to be able to do on a daily basis. Right,

(17:41):
So signing it doesn't limit you. It only helps you
if something happens, because then you have someone who can
step in to help you. Now, same thing with the
healthcare proxy. Again, just naming someone that can act on
your behalf doesn't stop your ability to make your own
decisions as long as you're still competent and you can
understand and have a meaningful conversation with your medical team.

(18:02):
Whether you have a proxy or not, they still got
to talk to you, unless maybe you tell them that
you do want them to talk to somebody else.

Speaker 3 (18:09):
But again, if you do that, that is your choice.

Speaker 1 (18:11):
That is you making a decision to involve someone else
in the treatment of you or your care making decisions.
So just to just to make that very clear, that's
why we feel so strongly that you should be doing
these things, because it's not limiting you. It's just helping
set up a plan if something were to happen to
you and need someone to step in the other part
of our healthcare proxy document besides just naming who your

(18:34):
people are, and I think this might be a good
place to throw this in there. So so, Dylan, you've
done this a little less than me. Yeah, time wise,
a little bit generally speaking, in our office, how often
do you ever see a document where there's only one
person listed on it as an.

Speaker 2 (18:53):
Agent if we did them almost never, Yeah, if another
if it came from outside or someone tried to di Wyatt. Unfortunately,
too often I've seen it where it's only one person
and then it needs to be corrected.

Speaker 1 (19:09):
Yeah, I would say so, obviously, I think we're kind
of giving this away. But just what's the problem with
only having one person or what's a problem. I don't
want to say that, what's a problem with only having
one person?

Speaker 2 (19:20):
Well, what if that person wants to go anywhere other
than right here, right now?

Speaker 3 (19:25):
Bingo?

Speaker 1 (19:26):
What if that person isn't around? Just in general, what
if they passed away? Yep, what if they're in the bed.

Speaker 3 (19:31):
Next to you?

Speaker 2 (19:32):
Yeah, exactly right.

Speaker 1 (19:33):
There's whole hosts of things that can happen to that
one person that you've named, And obviously we hope they
don't have bad things happen to them. But I can't
tell you again how many times we have people come
in they think they've handled all this, They put the
documents down and it's husband named wife and wife named

(19:53):
husband and it Honestly, I'm not gonna say it's bad, right,
I don't want to dissuade people. You should do something,
even if it's maybe not the best it could be.
Doing something is a lot better than not doing anything.
But only having your spouse doesn't help you. If your
spouse isn't there or isn't in a state to help you.

(20:15):
So only having one person is dangerous. It might go
perfectly well for you, right if you're married, just to
you know, just use a married context as the example. Right,
let's just use me and my wife. If I only
named my wife, my wife only names me. Well, if
I die first and I either made all my decisions
until my death or if I couldn't, she helped me, well,

(20:36):
then the plan went okay for me. Yeah, because everything
went well either I did it or she did it.
But if she only named me and now I'm gone,
she's got a problem because now I'm not there to
help her. So if something happens to her, she's got nobody.
And again not to not to keep kind of belaboring
the point, but she can then sign a new document

(20:59):
that a point to somebody else. But that assumes enough
that she's well enough to do it exactly right. What
happens if she's not, say there was an accident or
there's cognitive issues. Who knows, right, my wife or she
was here would probably say I have cognitive issues now
depending on what time of day it is or what
or you know, what time of the month it is,
or how much sleep I've had. But but I only

(21:21):
make the joke to make the point, you know, go
home of the cognition hopefully will be there for your
agent when you need it to be, but there's no
guarantee of that. So generally speaking, we always want a
layer in people to these documents if and when we can.
I know one person that you actually helped me with, Dylan,
he only had one person. He literally only had his son.

Speaker 3 (21:42):
That was it.

Speaker 2 (21:43):
That was the only person love.

Speaker 1 (21:44):
So when we did that, so when we did the document,
we named the son and we said, we really hope
that nothing happens to him because there literally wasn't anyone
to pick. So if you only have one person, put
down the one person that you have, because it's a
lot better than doing nothing. But when you can layer
in people, I think it's smart to try to layer
in people for all the reasons that we're talking about.

(22:04):
The other document that we do in our kind of
basic plan, if you will, it's something called the disposition
of Remain's appointment. So Dylan, we're coming up to the break,
but why don't we before we do that, why don't
you just introduce the document and we'll see how far
we can get before the News.

Speaker 3 (22:18):
Yep.

Speaker 2 (22:18):
So we've got the disposition of remain's appointment, or the
dora as we like to refer to it colloquially.

Speaker 3 (22:24):
Yeah, and that's a lot easier to say.

Speaker 2 (22:26):
It way shorter. The dora essentially is just who can
handle your body after you've passed, Who can call the
funeral home, who can arrange the funeral and the burial
for you? Because back in the old days, that information
would typically be contained in the will. Now, the problem
with the will is that it has to go through

(22:47):
court and go through an entire court process before a
single provision in it is declared valid. And without it
being declared valid, there is nobody who has the authority
to control you your burial in your funeral perfect.

Speaker 1 (23:03):
I think that's exactly right. So we're going to talk
more about probate in the second half of the show.
But one of the common misconceptions that we hear is
that you can put your burial instructions in your will,
and you can. There's no law that says that you can't.
But as Dylan already kind of alluded to, right, in
order for your will to have power, to have the

(23:23):
ability to do anything to instruct anyone to act on
the behalf of your estate. It has to go through court,
which means it has to go in front of a judge,
it has to be blessed by the judge.

Speaker 3 (23:32):
Other people have to be put on notice. There's a
whole process.

Speaker 1 (23:34):
Maybe we'll go into some of that, but it's not
something that happens quickly. And if you wanted your remains
or your body or whatever to be handled quickly, then
you don't want to be waiting for the court to
do that. So anyway, we're right at the time for
the break, So why don't we go to break and
come right back right after the news after this and

(24:01):
welcome back everybody. Thanks for sticking through the news. We
really appreciate you being here on this holiday weekend. So
again one more time, at least for the third time
now still Frank coming from Piero, Connor and Strauss, still
joined in studio by mister Dylan Newkirk. We're both of
pier O, Connor and Strauss of Latham. Again, we are
a full service elder law firm. So on the show

(24:23):
today we've talked about kind of some client stories. We
just talked about kind of what we call our ancillary documents,
our power of attorney, our healthcare proxy, our disposition of remains.
We talk a lot about that kind of thing again
when I'm on the show, because I think it's a
nice way to kind of coast into some other topics.
So I think it makes sense to while we're talking
about reflection and thinking about kind of making maybe a

(24:46):
plan for yourself. Given the tenor of the weekend, I
think it's good to start with easy stuff, right. If
you don't have a power of attorney, you should get one,
And if you don't have one, you should think about
who you want to be on it. And same thing
with the healthcare proxy. Probably want to do something about
if you were to pass, what your arrangements would be,
who handles them? And then backups for all these roles, right,

(25:07):
who could manage your finances if it's not you? Who
could make your health care decisions if it's not you.
So before we go further into the topic, we do
have a workshop coming up, so I want to plug
that real fast. So we do what we call Trust
Administration workshops. They're done quarterly, so we like to bring
in either existing clients or prospective clients, or even just

(25:29):
people looking to get information about trusts because we talk
so much about trusts and I think there's still just
so much, you know, I don't want to say misinformation,
but I think confusion results or revolving around trusts that
I think it's great for people to come in get information.
So the next one we're going to do is actually
on Tuesday, June third, and it's going to be at

(25:50):
the Trustcode Bank Center, which is over on Metro Park
Road right in Albany. So the program runs from six
pm to seven thirty pm, and we do have a
light dinner included with that. So obviously if you want
to come and see us speak, I think it's mainly
going to be Lou from our office. So if you
want to come see Lou here about trusts, and he's

(26:12):
going to be joined by Gretchen Gunther, who's a shareholder
over at Tilbecker and Giramonte.

Speaker 3 (26:19):
I have met her.

Speaker 1 (26:20):
She's very nice and she's done these programs with us
several times now, so I think that she's got a
good program. So if you want to come see some
see Lou and the rest of the team for our
trust administration works up on June third, you can certainly
go to our website which is www dot Piro law
dot com slash events and sign up on the website,

(26:41):
or you can always give our office a call and
talk to one of the team to have you sign
up that way, and our phone number for that at
the office is five point eight four five nine twenty
one hundred and again it is June third from six
to seven thirty pm at the trustcoll Bank Center over
on Metro Park Road to over in Albany. So there

(27:01):
you go, there's the plug.

Speaker 3 (27:03):
All right. Back to the topic.

Speaker 1 (27:05):
So, while you're talking or again while we're reflecting and
we're talking about kind of the things we want to
maybe set up for our family. I think one of
the biggest questions that we get kind of in the
process when we're talking with families or a single person
or whomever we're talking about it. Besides, you know, just
after we've talked about who they are, what they're bringing

(27:27):
to the table, what they want to accomplish, is who
should I tell about all this?

Speaker 3 (27:33):
Right? Do any of you? Have you had clients ask
you that?

Speaker 2 (27:35):
I actually had clients yesterday, hey, asking me that same question.

Speaker 1 (27:39):
Look at that, So what did you tell them I'm
curious because I wasn't with you.

Speaker 2 (27:42):
What I told them is, if somebody is appointed as
an agent, or perhaps a successor agent, you should probably
tell them about that good advice. Make sure that they
are aware of that. However, when it comes to your
ultimate beneficiaries and everything like that, I gave them the advice,
maybe you shouldn't tell them yet, keep them wondering, make them.

Speaker 1 (28:04):
Think, yeah, I think, and I'm not going to say
that was not the right advice.

Speaker 3 (28:09):
I'll be very clear about that.

Speaker 1 (28:10):
I think that is a complicated question and a complicated
answer depending on the family situation. Yes, most of the time. Well,
let's take that in pieces. The agents one hundred percent
should know that they're being appointed or that they sit
in a place to be appointed. If someone earlier than
them becomes incapacitated, passes away, something like that.

Speaker 3 (28:31):
I think that is one hundred percent the kind.

Speaker 1 (28:32):
Of conversation you need to have with people up front
to make sure that they are willing to step in
to help you if something happens. Because I can tell you,
luckily we don't have this situation come up often, but
we do not want to have a circumstance where someone
is then going to be called upon and either can
or you know, cannot serve or refuses to serve, and

(28:53):
it could have been avoided if a conversation could have
been had earlier. You know, sometimes we set plans up
with the best of intentions, but sometimes, as the title
of the show is, life happens, right, Sometimes we have
what we think is a good plan on paper, but
then something happens beyond anyone's control that kind of makes
everything spiral out of control, and that leaves sometimes a

(29:15):
predicament that's difficult to deal with. So like just for instance, right,
not to be glum about it, but like if you have,
say if you're someone with some children, Let's say you
have two kids, Say your kids are together and there's
an auto accident or something like that where they're both
taken out unexpectedly, whether it's they passed away, they become incapacitated,

(29:35):
you know, whatever it is.

Speaker 3 (29:38):
It's such a rare event.

Speaker 1 (29:39):
The likelihood of that happening is obviously very low, but
it's also not impossible. So we could have set it
up with multiple people that you like, that you trust,
would that would be good to help you, would make
good decisions, would follow your wishes. But maybe they're just
had something happen where they're not going to be in
a position to help. Unfortunately, right, that can happen. It

(30:01):
doesn't happen often, but.

Speaker 3 (30:05):
You never know.

Speaker 1 (30:06):
Then that's why we have to spend some time thinking
about these things. So I think for the agents, having
that conversation makes a lot of sense because we want
to avoid that as much as we can, knowing we're
not perfect, but again as much as we can with beneficiaries. Though, Yeah,
you're right, Dylan, that that I think is much more
likely to be Let's maybe keep that a secret unless

(30:30):
there are circumstances where it might actually make things easier
by having the conversation early.

Speaker 2 (30:36):
Correct.

Speaker 1 (30:37):
So, for instance, let me give you an example. Let's
say you've got two kids. Let's say one is doing
really really well and the other one is not doing
really really well for whatever reason.

Speaker 3 (30:48):
It'd be divorced.

Speaker 1 (30:49):
It could be bankruptcy, it could be they lost the job,
it could be you know, they lost the spouse, They've
got lots of kids. I don't know, right, just doesn't matter, Yep.
I have had families in contexts like that want to
leave more like a larger percentage to the child or
the children that are more needy of it, because they

(31:11):
want to be nice to the children who need it,
knowing their other children aren't going to be dependent on
maybe the stuff that they get from mom or from dad.
So while I think it's it's certainly much more common
to leave everything equal amongst your beneficiaries if you have
more than one, Yep, sometimes people don't want to leave
it equal because they want to do maybe more what

(31:33):
feels right to them. Yes, And I would say in
that instance, if you're going to treat people differently for
good reason, then sometimes I think it's better to have
that conversation.

Speaker 3 (31:48):
Because if, like again.

Speaker 1 (31:49):
Let's just let's just say you have two sons, you
want to leave one seventy five percent the other twenty
five percent. And it's not because you love them differently.
It's not because you like them differently, it's not because
trust them differently. It's just one could use the money
a whole lot more than the other one. I think
waiting until you're gone to have them find out that
one's getting three quarters and the others getting a quarter

(32:11):
may not sit well with them, depending on what their circumstances,
what their relationship is, what your relationship with.

Speaker 3 (32:17):
Each of them is.

Speaker 1 (32:19):
So sometimes that might be better to sit down as
a family and have them know that you made the
decision to treat them this way for this reason. And
maybe that doesn't always mean that they like it, because
the the criteria isn't that they have to like it.

Speaker 2 (32:37):
It's a very good point, but.

Speaker 1 (32:39):
It's your decision to make right when we work with families, Dylan,
I don't know if you've been in a consult with
me or a meeting with me where I've said this,
but I promise you if you haven't, I say this
the clients probably more than I thought that I would,
But I don't you know. My job isn't to do
what the son or the dog want. Oh yes, right.

(33:02):
My job is to do the work of typically mom
and dad. It's whoever our client is. And a lot
of times in the examples that we're talking about it
do mom or dad that hires us, right?

Speaker 3 (33:12):
Not the kids?

Speaker 1 (33:13):
So the kids can have opinions, they can be involved
with the process, but my job. Our job isn't to
do what the kids want. If mom or dad hired us,
and mom and dad are the clients. It's do what
mom or dad want. So sometimes I have to say
I respectfully acknowledge your opinion, but I don't necessarily care

(33:38):
to a degree because that's not my job.

Speaker 3 (33:41):
Right.

Speaker 1 (33:41):
My job is to do what mom or dad wants yep.
And again, we want to try to make things as
easy as possible. And I think, just genuinely speaking from
not only what I've seen, but what I've heard from
the again the litigation team, is that things tend to
go better if the people know why you did what

(34:05):
you did instead of being left to wonder.

Speaker 2 (34:09):
I agree with you there.

Speaker 3 (34:10):
Yeah, So I think.

Speaker 1 (34:11):
Generally keeping things under under a tight lip probably not
a bad idea, especially if you're treating everybody equally, right, right,
I think there's a lot less reason than to really
get into it if you don't want to, yep. But
if you if you're doing things a little you know, unorthodox,
I think then it might make sense to have that conversation.

(34:32):
But again, every family different is different, every situation is different,
So this would be something that if if you're working
with an attorney, whether it's us or somebody else, this
should be something that you certainly can and should talk
to your attorney about. But it's just something to think
about because again, sometimes you don't want maybe don't want
to leave everything equally amongst your people. But that's something

(34:53):
to think about. The other uh or at least another
consideration here is what happens if the people you want
to leave stuff to aren't there right one that that
conversation usually goes real well, yeah, so I'm happy to
do this, so we'll use me. So I'm an only child,

(35:17):
and I'm think I think that comes up on just
about every show. We're close to it. So I'm an
only child. So when my mother was doing her plan,
one thing that I told her she had to think about,
and I didn't do her documents, to be clear, for
obvious reasons, I did not do them.

Speaker 2 (35:33):
It's good.

Speaker 1 (35:34):
But what I told her was one of the things
she had to think about when she was having all
her stuff done, was who takes if I'm not here?
And now the answer is easy or these easier because
I have a daughter, So now now it's very simple.

Speaker 3 (35:48):
It would go to my daughter.

Speaker 1 (35:50):
But before my daughter came into existence, my mom had
to do some thinking about of what she would want
to have happen if I wasn't here right my dad.

Speaker 3 (35:58):
We just came up on.

Speaker 1 (36:00):
The fifteen year anniversary of my father's passing, which is
crazy to think that it's been that long, but my
dad's been gone for quite some time now, So with
him being gone and me being the only one left,
it's like, well, as much as I'm not planning on
anything happening to me, you have to think about if
something does, what do you want to have happened? And she,
you know, she had that figured out, but she spent

(36:22):
some time and for many, many, many families. Again this
I don't want to say it's not a concern, but
usually it's not a huge concern because usually we're not
worried about not having any beneficiaries left because most of
the time what people will do is they'll say everything
to my children, and then if not my kids, my grandkids,
and then down the family line from there. So sometimes

(36:45):
we're even as down the road as great grandchildren. So
if you've got children, grandchildren, great grandchildren, they're likely to
if you survive in all those people, if you just
kind of want to cascade it down, the family line
is pretty remote. I like to tell people it's just
about probably zero. Statistically, it's not actually zero, but it's
probably a very very very very very very close that

(37:07):
we might it might as well be zero. But sometimes
you have smaller families like mine, that was not a
zero right now, and it's still not a zero, right you.
I tell people again pretty often, I am very fortunate
that I have the best daughter in the world. We
frequently go places in the same vehicle. Yeah, what happens

(37:28):
if something happens to the car that we're in, right,
potential problem. So while it's still less of a concern,
it's still a consideration because as much as again we're
not planning on any of that bad stuff happening, hopefully
to least both of us, you never know. So just
another thing to think about is who, how much is

(37:51):
it the same, is it different? And maybe kind of
the reasons behind it. And then if you're planning go sideways,
who then steps in? So, Dylan, you you started the
show with introducing your subject area of doing things for
people when they pass away. So again I'm gonna I'm

(38:12):
gonna ask you a very generic question, and I think
we're gonna take our final break here. So, in your
experience so far working with our with our clients through
the probate process. If you've got a client that's working
through probate and a client that's working just through a
trust administration and not having to go through probate, whose

(38:32):
life is easier.

Speaker 2 (38:34):
I can tell you that trust trust life is ten
times easier every day and twice on Tuesdays that's when
they have the calendar. Colin surrogates court.

Speaker 3 (38:43):
By the way, Oh, there you go.

Speaker 1 (38:44):
I was gonna say, I'm sure that, I'm sure this
will make sense once he says why he said Tuesday.

Speaker 3 (38:48):
But yes, one hundred percent, Now I get it.

Speaker 1 (38:50):
Yes, yeah, because one of the one of the things
about a will U We've kind of already alluded to this,
but one of the things about a will that's not
great is every will has to go to court for
it to work, for it to have any power at all.
Of trust, on the other hand, avoids court. And this
is this is pretty much any trust you can think of.

Speaker 3 (39:11):
It could be.

Speaker 1 (39:11):
Revocable, it could be irrevocable. You know, it could do
lots of things that are super complicated. It could do
basically only dispense things, right, yep. But trust avoid court.
And one of the nice things about avoiding court is,
for one, you have to pay people that costs less
money typically to help you with them because we don't
have to go to court constantly to go help you.

Speaker 3 (39:30):
That's true, which is good for you, bad for us, yep.

Speaker 1 (39:34):
But one of the other big things about court versus
no court is when you're working with the court, the
court gets to do what the court wants when the
court wants to do it. Yeah, and sometimes they're not
as fast as we'd like, and obviously there are typically
I think good reasons for that. Right, they have very

(39:55):
important jobs. They have a lot on their plate right
there if they have a very needed job. But at
the end of the day, they have many people, many cases,
many files, and they're asked a lot of the you know,
it's a lot is asked of the court. Yes, and
sometimes it takes time to get through that process. But
with a trust you'll avoid all that and you're much

(40:16):
more working under the timeline of the trustee or the
trustees and then just working with typically the beneficiaries. So
why don't we take our last break, we'll come back,
we'll talk a little bit about maybe some trusts and
some other things, and then we'll wrap up the show,
so stay with us through the break again, this is
Life Happens. We'll be right back and welcome back to

(40:45):
our final segment. Everybody, one more time, It's Life Happens Radio.
Here at the Wguy Studio. I'm Frank Hemming of Pierre
O'Connor and Strauss. Mister Dylan Nuwkirk has been very nice
to sit in with me today, so obviously, again Dylan,
thank you for being here. We very much appreciate you
joining the show and adding your insight. I really appreciate it.
Thank you for having me.

Speaker 3 (41:06):
Of course, so we talked.

Speaker 1 (41:08):
We were just talking a little bit about trusts before
we went to the final break. We don't have a
lot of time left in the show. Unfortunately, it always
shocks me of how fast the show goes. I feel
like we just got here and now I'm looking at
the clock and we don't have much time left. But
we were just talking about trusts and wills and court
and that kind of stuff. And one of the nice

(41:28):
things about trusts that again I think is just kind
of that that misnomer about them is why we do them.
And I think a lot of people still no matter
how many times we say it think to themselves, well,
I don't need to trust because, like I don't have
a lot of money, and I've I've seen on TV,
I've talked to my mailman or you know whatever.

Speaker 3 (41:46):
Yep, that only rich people need trusts.

Speaker 1 (41:49):
Yep, right, I would say common from what you've heard
and seen.

Speaker 2 (41:53):
Typically, I heard that about four times the other night
at my weekly golf league.

Speaker 3 (41:58):
So only four nice.

Speaker 1 (42:01):
Yeah, I mean it's I understand why people think that way,
but it's just it's not true. It just isn't true.
When people ask me do I need a trust? The
first thing I generally ask is, well, can you give
me an idea about maybe just some of the things
that you have? And then ultimately what do you want
to do with all that stuff? Have you thought about that?

(42:22):
Because I can tell you there are certain people that
I would say probably don't need a trust. Yeah, right,
if you are a single person, maybe just at a school,
You've got maybe a bank account or two, and a
lot of debt. I don't think you really need to trust.
To be honest with you, No, probably. I mean we
could do one for you, but I'm not sure that's

(42:43):
going to be the best use of your time, your money,
your energy. Right, I think you should have a will,
but I'm not sure that you need to trust. You
should have the other documents we talked about that everybody
needs those, power of attorney, health care, proxy disposition. Everybody
should have those trust Maybe not. But then one of
the other things generally that I think most people bring

(43:04):
to the table when they come talk to us is well,
I have my house. Yeah, okay, that's great. I'm really
happy for you that you have your house. I'm sure
you work really hard for your house, or that you're
working really hard now to pay off your house, whatever
the circumstances. Now, your house. For a lot of people,
it's their biggest asset, or it could be one of
the one of their biggest assets, And that's great. One

(43:28):
of the downsides with your house, more than just about
every other asset you have, is your house is the
one that really is more likely to put you in
probate than just about anything else. Yeah, because your financial accounts,
you can name co owners to them and avoid probate.
With co ownership, you can name beneficiaries to them. You
can avoid probate with beneficiary designations. With your house, it's

(43:50):
a lot harder to do, right, you can do some
creative things with the deed. We can do life There
are such things as life estate deeds, which we tend
to show away from in our practice. We've talked about
that on the show before and don't really want to
get into it now just because we're close to the
end of the show. But you can do a life
estate deed avoid probate that way, but they are dangerous
to that. There's a new deed in New York called

(44:11):
the transfer on death deed that we do not feel
comfortable using at this point.

Speaker 3 (44:16):
So it is an option.

Speaker 1 (44:17):
It is we do not think it is good, probably
just about under any circumstance so far that from what
we've seen, so our advice would be not to use that.
So the only other real way to avoid probate with
your house is to use a trust. Really, yes, so
even if you're just bringing your house to the table,
then kind of the next question is, well, do you

(44:39):
want to make things nice and easy for your family
right when you go whenever that is hopefully a long
time from now. How much headache do you want to
give them? Some people might say, Eh, it's fine, I
don't mind them going to court. It's not my problem.
I'm going to be in the ground or out in
the wilderness, or you know, wherever you scattered, whatever you're going,

(45:00):
maybe up in space with Elon, I don't know, but
you can certainly have that happen where you can. Your
plan could be that your will is going to go
to court. That could be your plan, and that's that's
fine if that's what you want to do.

Speaker 2 (45:13):
That is fine in some situations.

Speaker 1 (45:15):
But a lot of people say, I don't want to
do that to my family or my loved ones, or
my beneficiaries or whoever it is. I want to make
it as easy as I can. And one of the
ways to do that is, again, do you do a trust. Now,
generically we have revocable trusts, we have irrevocable trusts. We
do them for different reasons, but they both avoid probate.

(45:35):
They just have different uses. So again kind of you know,
from a top down perspective, a revocable trust its main
purpose is to avoid probate. The irovocable trust is more
used for asset protection. We use that a lot more
with medicaid planning, preserving things, trying to keep things away
from nursing home. But ultimately either trust avoids probate. So

(45:58):
just from that perspective, if your plan is ease, well,
then a trust makes sense to consider. And then we
talk about what type of trust you want and maybe
how to structure it. We layer in trustees for you
right because again, just like your power of attorney, if
something happens and you can't run your trust or manage
your trust, we want to make sure we have someone

(46:19):
named you can or if it's a neurovocal trust, you
can't be in charge of it right away, you have
to name somebody else. So what if those people can't.
We want to layer some people in, just like we
talked about earlier. But one of my favorite things, and
I feel like we have you know it's gonna be
fun because we just have about a minute left in
the show. So, Dylan, when you have a neurovocal trust, yep.

(46:40):
Say you appoint your kids?

Speaker 3 (46:42):
Yep. Your kids don't do what you want? What do
you do?

Speaker 2 (46:46):
Fire them?

Speaker 3 (46:46):
Oh? Love it?

Speaker 1 (46:48):
Favorite part? Come in fire the kids. Tell I think
it's my new favorite part of the meetings. I'm more
than happy to fire your kids if they don't do
what you want.

Speaker 2 (46:58):
Your trust I've heard you say that so many times.

Speaker 1 (47:00):
That's I mean, like, well, because everyway, how many times
do you have people that are meeting with us and
as soon as we start doing it, you can tell
that they're anxious?

Speaker 2 (47:09):
Yep, oh, almost every one of them.

Speaker 1 (47:12):
So anyway, we're right about at the end of the show.
So Dylan, I'm gonna say thank you once again for
being here. Really appreciate you taking the time on the
holiday to come do this with me. I hope that
out there the listeners that you've got some good information
from all this. So with that, I'm gonna say goodbye

(47:33):
for today. I hope that you come back next week.
I think Lou will be back next week. I think
if you're interested in the seminar, go to our website
and sign up for that. So, by all means, come
back next week for another edition of Life Happens Radio.

Speaker 3 (47:50):
Take care,