Episode Transcript
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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 try 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 new Kirk.
Speaker 2 (01:15):
Hi, Dylan Morgan 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. I usually
born the co host. If I go crazy, you have
to get me, like you know, back on board with
what we're supposed to be talking about. But I think
we'll be okay. But again, so thanks everybody for listening
and for spending some time with us. So on life happens.
We usually talk about planning, we talk about will's, we
(01:46):
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,
just in case people haven't heard you know from you
(02:06):
about what who you are and what you do. 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 warned 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 1 (03:09):
Go there you go. 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
(03:30):
least try to make her playoff run. You know, they
didn't win, obviously, but they at least would make a 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,
(03:50):
you know, the end, 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.
(04:12):
And then I'm also 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 yeah.
Speaker 1 (04:34):
I wastl 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 1 (04:42):
Yeah, So that's so we'll avoid that. So anyway, let's
actually maybe talk about the stuff we're actually here to do.
So whenever I run the show 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. Very recently,
I was checking the internet and stuff just what I
(05:03):
was prepping for the show, and nobody really you know,
really note wherethy 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
you celebrities for not passing away, but but not so
(05:25):
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 to mind was and Dylan, you were actually in
(05:45):
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 to do. He figured out how to
(06:06):
get on 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
(06:27):
up in the 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 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
(06:47):
afraid that she's not going to be safe unless she's
kind of in a more you know, structured and monitored environment.
So it's inappropriate, 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 they're gonna
(07:08):
fly her back. 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. So that's great. 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
(07:29):
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 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.
(07:52):
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 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
(08:13):
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 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
(08:33):
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 and what
are we going to do about it? 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
(08:56):
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 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
(09:17):
a workable solution. And now just because they 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 should have medicaid start for
them pretty quickly. And that's the plan. And again the
take home point of that is they did some planning proactively, yep,
when they were well, because as I said, based on
(09:41):
our conversations, I don't believe Mom has capacity at this point,
which means that she couldn't sign a new power f
aratorney 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 a guardianship for her, which is
a court process. It's litigation. I don't get the sense
of this family would cause issues and not get along
(10:03):
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 again, having that power attorney turned
out to be kind of the key to just allow
(10:23):
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 if they were trying just to react now because
something can happened, the result would most likely be not
only different, but it'd be a lot more costly and
a lot more stressful. Not that it's not stressful enough
(10:44):
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 not good. Unfortunately, So before we
hit the brakedn because we should probably take a break
(11:05):
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 1 (12:15):
Exactly right, Sorry, excuse me, exactly right. 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.
So again, it's very important to have those So again,
(12:36):
kudos to the family that that we're talking about for
doing some proactive things. So with that, why don't we
take our first break. When we come back from the break,
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
welcome back everybody. Thanks again for sticking through the break
(12:57):
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
while yeah, now yet the show's not over yet, just
there's time, but he so far he hasn't done it.
So the first segment of the show, we talked a
little bit about power of attorneys and I kind of
(13:19):
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 I know Memorial Day isn't exactly designed to
(13:41):
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 of them. We would not have the country
we have without everybody that wears the uniforms that keep
(14:05):
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 a 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 best place you could possibly be. So
thank you for everyone for allowing us to do that.
(14:25):
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 a plan to take care of
things when the time comes for you. Because as much
(14:45):
as we don't like to always think about it or
acknowledge it, right, the time comes 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 then if you don't,
for many reasons and in many different ways. So just
(15:05):
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
(15:27):
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 while and
urly 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
(15:48):
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 next of kin, 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,
(16:08):
the litigation's 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 (16:15):
Us for this that has never happened.
Speaker 1 (16:19):
Exactly 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. Right,
So that way we can kind of accomplish the medicaid planning,
the asset protection planning that we've talked a little bit about.
(16:41):
But it's not just finances that we're worried about. We're
also always concerned about health care decisions. Right. While monetary
decisions are obviously very, 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
(17:05):
have with talking about a healthcare proxy, because that 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
(17:25):
to your finances, do everything that we've talked that you'd
want to be able to do on a daily basis.
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
(17:45):
decisions as long as you're still competent and you can
understand and have a meaningful conversation with your medical team.
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. But again,
if you do that, that is your choice. That is
you making a decision to involve someone else in the
treatment of you or your care making decisions. So just
(18:08):
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 need
someone to step in the other part of our healthcare
proxy document besides just naming who your people are, and
I think this might be a this might be a
good place to throw this in there. So so, Dylan,
(18:31):
you've done this a little less than me. Yeah, time wise,
a little bit, only a little 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 (18:42):
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 (18:59):
Yeah, I would say so, 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 (19:09):
Well, what if that person wants to go anywhere other
than right here right now?
Speaker 1 (19:14):
Bingo? What if that person isn't around? Just in general,
what if they passed away? Yep? What if they're in
the bed next to you?
Speaker 2 (19:21):
Yeah, exactly right.
Speaker 1 (19:23):
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 husband
(19:45):
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.
So only having one person is dangerous. It might go
(20:09):
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,
then the plan went okay for me. Yeah, because everything
went well either I did it or she did it.
(20:31):
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
that appoints somebody else. But that assumes enough that she's
(20:52):
well enough to do it exactly right. What happens if
she's not, say there was an accident or there's cognitive issue.
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 make the joke
to make the point, you know, go home of the
(21:15):
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.
That was it.
Speaker 2 (21:32):
That was the only person left.
Speaker 1 (21:33):
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.
(21:54):
The other document that we do in our kind of
basic plan, if you will, something called the position of
remains 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. Yep.
Speaker 2 (22:08):
So we've got the disposition of remain's appointment, or the
dora as we like to refer to it colloquially. Yeah,
and it's a lot easier to say 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
(22:29):
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 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 your burial
(22:50):
and your funeral perfect.
Speaker 1 (22:52):
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 misconcepts 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
(23:12):
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. Other people
have to be put on notice. There's a whole process.
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
(23:33):
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
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.
(23:53):
Now still Frank coming from Pier o' connor and Strauss,
still joined in studio by mister Dylan Newkirk. We're both
of Pierre O'Connor and Strauss of Latham. Again, we are
a full service elder law firm. So on the show
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.
(24:16):
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
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,
(24:36):
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 somethinking about
if you were to pass, what your arrangements would be,
who handles them? And then backups for all these roles, right,
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
(24:57):
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
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
(25:19):
I think confusion result 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
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
(25:42):
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
going to be joined by Gretchen Gunther, who's a shareholder
over at Tilbecker and Jerramonte. I have met her. She's
very nice and she's done these programs with us several
(26:06):
times now, so I think that she's got a good program.
So if you want to come see some say 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, or you
can always give our office a call and talk to
one of the team to have you sign up that way,
(26:27):
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 Truscoll Bank Center over on Metro Park
Road over in Albany. So there you go, there's the plug,
all right, back to back to the topic. So while
(26:48):
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 proms 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 to the table,
(27:09):
what they want to accomplish, is who should I tell
about all this? Right? Do any of you? Have you
had clients ask you.
Speaker 2 (27:16):
That I actually had clients yesterday, hey, asking me that
same question.
Speaker 1 (27:21):
Look at that, So what did you tell them? I'm
curious because I wasn't with you.
Speaker 2 (27:24):
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 (27:46):
Think, yeah, I think, And I'm not going to say
that was not the right advice. I'll be very clear
about that. 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,
(28:08):
if someone earlier than them becomes incapacitated, passes away, something
like that, And that is one hundred percent the kind
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
(28:29):
is then going to be called upon and either or
you know, cannot serve or refuses to serve, and 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
(28:50):
something happens beyond anyone's control that kind of makes everything
spiral out of control, and that leaves sometimes a 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
(29:10):
an auto accident or something like that where they're both
taken out unexpectedly, whether it's they passed away, they become incapacitated,
you know, whatever it is. It's such a rare event.
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,
(29:31):
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
doesn't happen often, but you never know. Then That's why
we have to spend some time thinking about these things.
(29:52):
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 which 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 there are circumstances
(30:13):
where it might actually make things easier by having the
conversation early correct. 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. It'd
be divorced. It could be bankruptcy. It could be they
(30:33):
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 want to be nice to the
(30:54):
children who need it, knowing their other children aren't going
to be dependent on maybe the stuff that they get
a 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 feels right to them. Yes,
(31:18):
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 because if, like again,
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.
(31:39):
It's not because you like them differently, it's not because
you 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 may not sit well with them, depending on what
their circumstances, what their relationship is, what your relationship with
each of them is. So sometimes that might be better
(32:03):
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 (32:19):
It's a very good point, but.
Speaker 1 (32:21):
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
to 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 daughter want. Oh yes, right.
(32:44):
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, not the kids.
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,
(33:05):
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
to a degree because that's not my job. Right. My
job is to do what mom or dad wants yep.
(33:26):
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
(33:47):
you did instead of being left to wonder.
Speaker 2 (33:51):
I agree with you there.
Speaker 1 (33:52):
Yeah, So I think generally keeping things under a tight
lip probably not a bad idea, especially if you 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
(34:13):
make sense to have that conversation. 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
(34:33):
amongst your people. But that's something 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? That one that that conversation usually goes
real Well, yeah, so so I'm happy to do this,
(34:56):
so we'll use me. So I'm an only child there,
I'm if you. 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 (35:15):
It's good.
Speaker 1 (35:16):
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.
It would go to my daughter. But before my daughter
came into existence, my mom had to do some thinking
about of what she would want to have happen if
(35:37):
I wasn't here, right my dad. We just came up
on 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
(35:58):
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
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
(36:20):
to my children, and then if not my kids, my grandkids,
and then down the family line from there. So sometimes
we're even as down the road as great grandchildren. So
if you've got children, grandchildren, great grandchildren, they 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
(36:42):
about probably zero. Statistically, it's not actually zero, but it's
probably a very very very very very very close that
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
(37:04):
that I have the best daughter in the world. We
frequently go places in the same vehicle. What happens 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
(37:24):
both of us, you never know. So just another thing
to think about is who, how much is 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,
(37:45):
you started the show with introducing your subject area of
doing things for people when they pass away. So again
I'm 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
(38:07):
working through probate and a client that's working just through
a trust administration and not having to go through probate,
whose life is easier.
Speaker 2 (38:16):
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 surrogate's court.
Speaker 1 (38:25):
By the way, Oh, there you go. I was gonna say,
I'm sure that, I'm sure this will make sense once
he says why he said Tuesday. But yes, one hundred percent,
Now I get it. Yes, yeah, because one of the
one of the things about a will, uh 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. Trust, on the other hand,
(38:48):
avoids court. And this is this is pretty much any
trust you can think of. It could be revocable, it
could be irrevocable. You know, it could do lots of
things that are super complicated. It could do based on
lead 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
(39:09):
money typically to help you with them because we don't
have to go to court constantly to go help you,
which is good for you, bad for us, yep. 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. Yea. And sometimes they're not as
(39:31):
fast as we'd like, and obviously there are typically I
think good reasons for that. Right they have very important jobs.
They have a lot on their plate right there. 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 court. You know,
it's a lot of a lot is asked of the court. Yes,
(39:51):
and sometimes it takes time to get through that process.
But with a trust you'll avoid all that and you're
much 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
(40:13):
Life Happens. We'll be right back. Welcome back to our
final segment. Everybody one more time, It's Life Happens Radio.
Here in the Wguy studio. I'm Frank Hemming of Pierre
O'Connor and Strauss. Mister Dylan Nwkirk has been very nice
to send 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.
Speaker 2 (40:36):
Thank you for having me.
Speaker 1 (40:37):
Of course, so we talked. 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
(40:59):
nice things about trust 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. Yep,
that only rich people need trusts. Yep, right, I would
(41:21):
say common, common from what you've heard and seen. Typically.
Speaker 2 (41:24):
I heard that about four times the other night at
my weekly golf league.
Speaker 1 (41:28):
So only four nice. 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 to 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
(41:50):
do you want to do with all that stuff? Have
you thought about that? 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,
(42:12):
I mean we could do one for you, but I'm
not sure that's 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
(42:34):
most people bring 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
(42:57):
that's great. One 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.
(43:19):
With your house. It's 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 shy 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
there are dangerous to that. There's a new deed in
(43:41):
New York called the transfer on death deed that we
do not feel comfortable using at this point. So is
an option 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,
(44:04):
so even if you're just bringing your house to the table,
then kind of the next question is, well, do you
want to make things nice and easy for your family
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
(44:24):
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're scattered, whatever you're going, 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 (44:44):
It is fine in some situations.
Speaker 1 (44:46):
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 tre us, we have irrevocable trusts.
We do them for different reasons, but they both avoid probate.
(45:06):
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
(45:29):
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
(45:49):
named you can or if it's an irovocable 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 let are some people in. Just like
we talked about earlier, 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 near rovocal trust, yep.
(46:11):
So you appoint your kids, yep. Your kids don't do
what you want? What do you do?
Speaker 2 (46:16):
Fire them?
Speaker 1 (46:17):
Oh? I love it, part favorite part, come in. Fire
the kids tellin. 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, your trust.
Speaker 2 (46:29):
I've heard you say that so many times.
Speaker 1 (46:31):
That's I mean, like, well, because everybody, 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 (46:40):
Yep, oh, almost every one of them.
Speaker 1 (46:42):
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. Yep. I hope
that out there the listeners that you got some good
information from all this. So with that, I'm gonna say
(47:03):
goodbye 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.
Take care,
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 try 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 new Kirk.
Speaker 2 (01:15):
Hi, Dylan Morgan 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. I usually
born the co host. If I go crazy, you have
to get me, like you know, back on board with
what we're supposed to be talking about. But I think
we'll be okay. But again, so thanks everybody for listening
and for spending some time with us. So on life happens.
We usually talk about planning, we talk about will's, we
(01:46):
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,
just in case people haven't heard you know from you
(02:06):
about what who you are and what you do. 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 warned 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 1 (03:09):
Go there you go. 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
(03:30):
least try to make her playoff run. You know, they
didn't win, obviously, but they at least would make a 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,
(03:50):
you know, the end, 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.
(04:12):
And then I'm also 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 yeah.
Speaker 1 (04:34):
I wastl 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 1 (04:42):
Yeah, So that's so we'll avoid that. So anyway, let's
actually maybe talk about the stuff we're actually here to do.
So whenever I run the show 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. Very recently,
I was checking the internet and stuff just what I
(05:03):
was prepping for the show, and nobody really you know,
really note wherethy 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
you celebrities for not passing away, but but not so
(05:25):
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 to mind was and Dylan, you were actually in
(05:45):
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 to do. He figured out how to
(06:06):
get on 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
(06:27):
up in the 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 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
(06:47):
afraid that she's not going to be safe unless she's
kind of in a more you know, structured and monitored environment.
So it's inappropriate, 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 they're gonna
(07:08):
fly her back. 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. So that's great. 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
(07:29):
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 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.
(07:52):
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 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
(08:13):
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 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
(08:33):
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 and what
are we going to do about it? 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
(08:56):
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 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
(09:17):
a workable solution. And now just because they 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 should have medicaid start for
them pretty quickly. And that's the plan. And again the
take home point of that is they did some planning proactively, yep,
when they were well, because as I said, based on
(09:41):
our conversations, I don't believe Mom has capacity at this point,
which means that she couldn't sign a new power f
aratorney 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 a guardianship for her, which is
a court process. It's litigation. I don't get the sense
of this family would cause issues and not get along
(10:03):
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 again, having that power attorney turned
out to be kind of the key to just allow
(10:23):
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 if they were trying just to react now because
something can happened, the result would most likely be not
only different, but it'd be a lot more costly and
a lot more stressful. Not that it's not stressful enough
(10:44):
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 not good. Unfortunately, So before we
hit the brakedn because we should probably take a break
(11:05):
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 1 (12:15):
Exactly right, Sorry, excuse me, exactly right. 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.
So again, it's very important to have those So again,
(12:36):
kudos to the family that that we're talking about for
doing some proactive things. So with that, why don't we
take our first break. When we come back from the break,
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
welcome back everybody. Thanks again for sticking through the break
(12:57):
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
while yeah, now yet the show's not over yet, just
there's time, but he so far he hasn't done it.
So the first segment of the show, we talked a
little bit about power of attorneys and I kind of
(13:19):
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 I know Memorial Day isn't exactly designed to
(13:41):
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 of them. We would not have the country
we have without everybody that wears the uniforms that keep
(14:05):
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 a 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 best place you could possibly be. So
thank you for everyone for allowing us to do that.
(14:25):
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 a plan to take care of
things when the time comes for you. Because as much
(14:45):
as we don't like to always think about it or
acknowledge it, right, the time comes 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 then if you don't,
for many reasons and in many different ways. So just
(15:05):
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
(15:27):
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 while and
urly 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
(15:48):
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 next of kin, 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,
(16:08):
the litigation's 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 (16:15):
Us for this that has never happened.
Speaker 1 (16:19):
Exactly 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. Right,
So that way we can kind of accomplish the medicaid planning,
the asset protection planning that we've talked a little bit about.
(16:41):
But it's not just finances that we're worried about. We're
also always concerned about health care decisions. Right. While monetary
decisions are obviously very, 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
(17:05):
have with talking about a healthcare proxy, because that 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
(17:25):
to your finances, do everything that we've talked that you'd
want to be able to do on a daily basis.
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
(17:45):
decisions as long as you're still competent and you can
understand and have a meaningful conversation with your medical team.
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. But again,
if you do that, that is your choice. That is
you making a decision to involve someone else in the
treatment of you or your care making decisions. So just
(18:08):
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 need
someone to step in the other part of our healthcare
proxy document besides just naming who your people are, and
I think this might be a this might be a
good place to throw this in there. So so, Dylan,
(18:31):
you've done this a little less than me. Yeah, time wise,
a little bit, only a little 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 (18:42):
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 (18:59):
Yeah, I would say so, 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 (19:09):
Well, what if that person wants to go anywhere other
than right here right now?
Speaker 1 (19:14):
Bingo? What if that person isn't around? Just in general,
what if they passed away? Yep? What if they're in
the bed next to you?
Speaker 2 (19:21):
Yeah, exactly right.
Speaker 1 (19:23):
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 husband
(19:45):
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.
So only having one person is dangerous. It might go
(20:09):
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,
then the plan went okay for me. Yeah, because everything
went well either I did it or she did it.
(20:31):
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
that appoints somebody else. But that assumes enough that she's
(20:52):
well enough to do it exactly right. What happens if
she's not, say there was an accident or there's cognitive issue.
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 make the joke
to make the point, you know, go home of the
(21:15):
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.
That was it.
Speaker 2 (21:32):
That was the only person left.
Speaker 1 (21:33):
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.
(21:54):
The other document that we do in our kind of
basic plan, if you will, something called the position of
remains 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. Yep.
Speaker 2 (22:08):
So we've got the disposition of remain's appointment, or the
dora as we like to refer to it colloquially. Yeah,
and it's a lot easier to say 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
(22:29):
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 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 your burial
(22:50):
and your funeral perfect.
Speaker 1 (22:52):
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 misconcepts 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
(23:12):
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. Other people
have to be put on notice. There's a whole process.
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
(23:33):
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
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.
(23:53):
Now still Frank coming from Pier o' connor and Strauss,
still joined in studio by mister Dylan Newkirk. We're both
of Pierre O'Connor and Strauss of Latham. Again, we are
a full service elder law firm. So on the show
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.
(24:16):
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
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,
(24:36):
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 somethinking about
if you were to pass, what your arrangements would be,
who handles them? And then backups for all these roles, right,
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
(24:57):
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
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
(25:19):
I think confusion result 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
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
(25:42):
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
going to be joined by Gretchen Gunther, who's a shareholder
over at Tilbecker and Jerramonte. I have met her. She's
very nice and she's done these programs with us several
(26:06):
times now, so I think that she's got a good program.
So if you want to come see some say 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, or you
can always give our office a call and talk to
one of the team to have you sign up that way,
(26:27):
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 Truscoll Bank Center over on Metro Park
Road over in Albany. So there you go, there's the plug,
all right, back to back to the topic. So while
(26:48):
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 proms 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 to the table,
(27:09):
what they want to accomplish, is who should I tell
about all this? Right? Do any of you? Have you
had clients ask you.
Speaker 2 (27:16):
That I actually had clients yesterday, hey, asking me that
same question.
Speaker 1 (27:21):
Look at that, So what did you tell them? I'm
curious because I wasn't with you.
Speaker 2 (27:24):
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 (27:46):
Think, yeah, I think, And I'm not going to say
that was not the right advice. I'll be very clear
about that. 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,
(28:08):
if someone earlier than them becomes incapacitated, passes away, something
like that, And that is one hundred percent the kind
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
(28:29):
is then going to be called upon and either or
you know, cannot serve or refuses to serve, and 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
(28:50):
something happens beyond anyone's control that kind of makes everything
spiral out of control, and that leaves sometimes a 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
(29:10):
an auto accident or something like that where they're both
taken out unexpectedly, whether it's they passed away, they become incapacitated,
you know, whatever it is. It's such a rare event.
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,
(29:31):
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
doesn't happen often, but you never know. Then That's why
we have to spend some time thinking about these things.
(29:52):
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 which 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 there are circumstances
(30:13):
where it might actually make things easier by having the
conversation early correct. 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. It'd
be divorced. It could be bankruptcy. It could be they
(30:33):
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 want to be nice to the
(30:54):
children who need it, knowing their other children aren't going
to be dependent on maybe the stuff that they get
a 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 feels right to them. Yes,
(31:18):
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 because if, like again,
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.
(31:39):
It's not because you like them differently, it's not because
you 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 may not sit well with them, depending on what
their circumstances, what their relationship is, what your relationship with
each of them is. So sometimes that might be better
(32:03):
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 (32:19):
It's a very good point, but.
Speaker 1 (32:21):
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
to 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 daughter want. Oh yes, right.
(32:44):
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, not the kids.
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,
(33:05):
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
to a degree because that's not my job. Right. My
job is to do what mom or dad wants yep.
(33:26):
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
(33:47):
you did instead of being left to wonder.
Speaker 2 (33:51):
I agree with you there.
Speaker 1 (33:52):
Yeah, So I think generally keeping things under a tight
lip probably not a bad idea, especially if you 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
(34:13):
make sense to have that conversation. 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
(34:33):
amongst your people. But that's something 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? That one that that conversation usually goes
real Well, yeah, so so I'm happy to do this,
(34:56):
so we'll use me. So I'm an only child there,
I'm if you. 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 (35:15):
It's good.
Speaker 1 (35:16):
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.
It would go to my daughter. But before my daughter
came into existence, my mom had to do some thinking
about of what she would want to have happen if
(35:37):
I wasn't here, right my dad. We just came up
on 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
(35:58):
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
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
(36:20):
to my children, and then if not my kids, my grandkids,
and then down the family line from there. So sometimes
we're even as down the road as great grandchildren. So
if you've got children, grandchildren, great grandchildren, they 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
(36:42):
about probably zero. Statistically, it's not actually zero, but it's
probably a very very very very very very close that
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
(37:04):
that I have the best daughter in the world. We
frequently go places in the same vehicle. What happens 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
(37:24):
both of us, you never know. So just another thing
to think about is who, how much is 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,
(37:45):
you started the show with introducing your subject area of
doing things for people when they pass away. So again
I'm 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
(38:07):
working through probate and a client that's working just through
a trust administration and not having to go through probate,
whose life is easier.
Speaker 2 (38:16):
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 surrogate's court.
Speaker 1 (38:25):
By the way, Oh, there you go. I was gonna say,
I'm sure that, I'm sure this will make sense once
he says why he said Tuesday. But yes, one hundred percent,
Now I get it. Yes, yeah, because one of the
one of the things about a will, uh 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. Trust, on the other hand,
(38:48):
avoids court. And this is this is pretty much any
trust you can think of. It could be revocable, it
could be irrevocable. You know, it could do lots of
things that are super complicated. It could do based on
lead 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
(39:09):
money typically to help you with them because we don't
have to go to court constantly to go help you,
which is good for you, bad for us, yep. 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. Yea. And sometimes they're not as
(39:31):
fast as we'd like, and obviously there are typically I
think good reasons for that. Right they have very important jobs.
They have a lot on their plate right there. 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 court. You know,
it's a lot of a lot is asked of the court. Yes,
(39:51):
and sometimes it takes time to get through that process.
But with a trust you'll avoid all that and you're
much 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
(40:13):
Life Happens. We'll be right back. Welcome back to our
final segment. Everybody one more time, It's Life Happens Radio.
Here in the Wguy studio. I'm Frank Hemming of Pierre
O'Connor and Strauss. Mister Dylan Nwkirk has been very nice
to send 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.
Speaker 2 (40:36):
Thank you for having me.
Speaker 1 (40:37):
Of course, so we talked. 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
(40:59):
nice things about trust 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. Yep,
that only rich people need trusts. Yep, right, I would
(41:21):
say common, common from what you've heard and seen. Typically.
Speaker 2 (41:24):
I heard that about four times the other night at
my weekly golf league.
Speaker 1 (41:28):
So only four nice. 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 to 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
(41:50):
do you want to do with all that stuff? Have
you thought about that? 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,
(42:12):
I mean we could do one for you, but I'm
not sure that's 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
(42:34):
most people bring 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
(42:57):
that's great. One 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.
(43:19):
With your house. It's 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 shy 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
there are dangerous to that. There's a new deed in
(43:41):
New York called the transfer on death deed that we
do not feel comfortable using at this point. So is
an option 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,
(44:04):
so even if you're just bringing your house to the table,
then kind of the next question is, well, do you
want to make things nice and easy for your family
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
(44:24):
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're scattered, whatever you're going, 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 (44:44):
It is fine in some situations.
Speaker 1 (44:46):
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 tre us, we have irrevocable trusts.
We do them for different reasons, but they both avoid probate.
(45:06):
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
(45:29):
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
(45:49):
named you can or if it's an irovocable 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 let are some people in. Just like
we talked about earlier, 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 near rovocal trust, yep.
(46:11):
So you appoint your kids, yep. Your kids don't do
what you want? What do you do?
Speaker 2 (46:16):
Fire them?
Speaker 1 (46:17):
Oh? I love it, part favorite part, come in. Fire
the kids tellin. 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, your trust.
Speaker 2 (46:29):
I've heard you say that so many times.
Speaker 1 (46:31):
That's I mean, like, well, because everybody, 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 (46:40):
Yep, oh, almost every one of them.
Speaker 1 (46:42):
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. Yep. I hope
that out there the listeners that you got some good
information from all this. So with that, I'm gonna say
(47:03):
goodbye 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.
Take care,
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