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April 2, 2025 15 mins
This week, Todd Lutsky explains the various methods of leaving assets to your beneficiaries. Todd takes questions for the audience about borrowing against your trust, leaving a home to a beneficiaries, and naming a beneficiary to your 401(k).
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Episode Transcript

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Speaker 1 (00:01):
This is Ask Todd on the Financial Exchange Radio network.
If you have an existing estate plan or in the
market for one, Todd Lutsky is here to answer your
questions and help you plan for a later life. Ask
Todd is presented by Cushing and Dolan, serving Massachusetts and
New England for more than thirty five years, helping families
with estate and tax planning, medicaid planning, and probate law.

(00:22):
Visit Cushingdolan dot com. Now here's Todd Lutsky.

Speaker 2 (00:27):
And as promised for join now by Todd Lutsky from
the law firm of Cushing and Dolan. The segment is
asked Todd, It's your chance to ask Todd your estate
planning questions. Last week, I think we had either four
or five callers. We got through three of them, So
there's some urgency to make sure you're at the front
of the lines that we can get to. Your call.
Phone line is open at eight eight eight to zero

(00:49):
five two two sixty three. That is the studio number
to speak to Todd Ltsky right now about your estate
planning questions. Again, eight eight eight to zero five two
two sixty three is the number to speak to Todd. We
got the phone lines open and are waiting for you
at eight eight eight to zero five two two six three.

(01:11):
Mister Latsky, how are you today?

Speaker 3 (01:13):
I am never better? How are you? I?

Speaker 2 (01:15):
I'm okay, just okay, okay. Well, so I knew you
were coming in today, So I was. I was talking
to my wife about some estate planning stuff and was like, hey,
I'd like to be cremated. Yeah, you know, it seems
seemed reasonable. She made an appointment for Tuesday, a little
earlier than I was earl But you know, it's this

(01:35):
is this is what it is, Todd. I want to
talk to you today about beneficiaries and basically the right
and wrong ways to get assets to the people you
want them to end up with. Let's say that I
have a child who I want to inherit property and
investment account, whatever it may be. What is the upside

(01:56):
and downside of me just saying hey, I'm gonna put
you as a joint owner on a piece of real
estate or an investment account.

Speaker 3 (02:04):
Well, those are two very big important differences in the
type of assets you're mentioning. So so real estate versus
are not versus, but real estate and let's say a
brokerage account. Well, let's start with the brokerage account, because
that one's easier. So this is why we do planning, right, folks.
We don't just throw people's names on our accounts, although

(02:25):
we do, but we shouldn't. And the reason we don't
do that is when you add a child's name as
Chuck indicated to a brokerage account and let's say it's joint, well,
you haven't quite completed the gift yet. That's true because
either party can go into a joint account typically and

(02:48):
take out the money. So until the gift is until
the other party, the child, let's say, actually goes in
and removes the money that would complete the gift. Until then,
you haven't actually made a completed gift. But to me,
I'm scared enough just by the fact that the child
could go in and take the money. So one, that's
a problem. Two, when you add a child's name to it,

(03:10):
you've exposed that child's creditor. That child's creditors can now
access half the account. So one, I've exposed it to
the kid's creditors, which I really don't like. Now I
can tell you the upside of doing that is, of course,
when you pass, it will avoid probate and automatically go
to that surviving joint owner. So I guess that's a positive.

(03:35):
I don't think it is, but it's a positive. The
real problem with that, though, is generally if you don't
have just one child, and you have let's say three kids,
and this particular child happens to live close by, which
is not uncommon, so for convenience purposes, you're thinking, I'm
gonna throw this particular child's name on not only my

(03:58):
brokerage account perhaps but also the bank accounts so that
they can what pay bills and help me out, sure
as I need it done. Well, if you've done that
on two three accounts and you have multiple children and
that then you die while that child likely is just
going to get all those accounts, and you've disinherited effectively

(04:19):
your other children, which you might not have meant to
do so, but but you've done it. So folks, that's
just a few of the problems with it. But that's
why I wouldn't do that. And of course with real
estate it's even worse. You've completed the gift, you know,
you exposed it to the kid's creditors. You can't sell
it without that person's name, I mean, without that joint

(04:39):
owner helping you have the proceeds would go to that
joint owner. I mean, just on and on problems with
putting a child's name on a on a piece of property.

Speaker 2 (04:48):
Talking with Todd Lutsky from the law firm of Cushing
and Dolan. If you have a question for Todd, this
is your chance to ask him live on air. Studio
line is opened still with some room onnitor eight to
zero five two two six three. That is the number
to call to speak with Todd Lutsky about your estate
planning questions again. Eight eight eight to zero five two

(05:12):
two six three. We're gonna take a quick break here,
but when we come back, it's gonna be right to
your questions with Todd Lutsky again. That phone number is
eight eight eight to zero five two two six three.
One more time, it's eight eight eight to zero five
two two sixty three.

Speaker 1 (05:31):
Ask Todd with Todd Lutsky every Wednesday at ten thirty
only here on the Financial Exchange Radio Network. You're listening
to Ask Todd with Todd Lutsky on the Financial Exchange
Radio Network.

Speaker 2 (05:53):
Still got some room on the phone lines if you'd
like to speak Todd Lutsky, we got plenty of space
so that you can ask your estate planning questions. Eight
eight eight to zero five two two sixty three is
the number again, it's eight eight eight to zero five
two two sixty three. Let's go to Carleen from Florida. Carleen,
what's your question for Tom Lutsky?

Speaker 4 (06:15):
I have an irrevocable trust and my nephew is the trustee,
and I would like to get an equity line. Is
there any way that I can do that?

Speaker 5 (06:26):
So?

Speaker 3 (06:27):
Uh, how long ago did you set this trust up?

Speaker 4 (06:31):
What was in twenty fourteen?

Speaker 3 (06:33):
Two thy fourteen? And your house? Is this your primary
residence that you put in?

Speaker 6 (06:39):
Yeah?

Speaker 3 (06:40):
Okay? And and by chance, when you set this trust
up and deeded the property into this trust, do you
recall anybody using the word life estate reserving a life
estate for you.

Speaker 4 (06:56):
That's what my tax to say. It says, my niece
and two nephews, it says, I can't even think, is
that awful? SND irrevocable? Wait a minute, I think, yeah, yeah, you'red.

Speaker 5 (07:17):
Irrevocable trust, irrevocable trust twenty fourteen and it does and
above that it, says Colleen mcgloftin that's me Life of
State snd Irrevocable Trust of twenty fourteen.

Speaker 3 (07:32):
Okay, well that's very helpful, thank you. So a couple
of things. When you reserve a life estate, it allows
you not only to live there, but it allows you
to keep existing mortgages if you had one when you
put it in, which you may not have, but to
get a revert to get a mortgage now you can try.

(07:53):
I can't tell you the bank's going to do it.
Every bank's different, but you're ultimately going to need the
trustee of the trust to sign off and the life
tenant to sign off on the mortgage. Okay, so you're
gonna need both and and I don't know that the
bank will actually do that. So the one thing I
always tell clients when they're setting up these trusts are

(08:17):
you can't borrow against the property without creating, you know,
without resetting that five year clock. So you're way beyond
the five year medicaid clock. So your house is protected.
So you need to think about it. If you've if
you've not, if you're doing this in the future, for
everybody else listening, you reserve a life estate like Carlene did, right,
but you get the reverse mortgage, or not the reverse mortgage,

(08:40):
the the home equity line of credit established before you
create the trust, and that way you then transfer the
encumbered property to the trust reserve. The life of state
preserves the home equity line of credit even though you
may not have borrowed against it in twenty fourteen in

(09:01):
this example when the trust was set up, but you
established it. So now when Carlene says I'd like to borrow,
she could because she would have already had the home
equity line of credit with that life estate, and she
could tap the mortgage anytime she wants and it doesn't
trigger the du on sale clause. But unfortunately, Carleen, it
sounds to me like you did not do that prior

(09:24):
to putting the property into the trust. So in order
for you to get a home equity line now likely
you're going to have to deed the property out or
at least the remainder interest out of the trust to
the kid's nieces, nephews, whoever you plan on leaving it to,
and keep your life estate, and then all of you

(09:44):
could go to the bank and get a mortgage and
not reset the clock. If you want to reset the clock,
then you need to take the property out, get it
to a child or a beneficiary whoever's listed, and have
them give it back to you, get your mortgage, put
it in the trust, reserve a life estate. The downside
with that is you're resetting your five year clock. Depending

(10:07):
on how old you are, you may not want to
do that. So it's a very good question and hopefully
that answered it for you. But folks, interestingly enough, it's
a new month and we've got a new guide and
doing these life estates, which was the old month's guide.
You know, you kind of give up. It's a way

(10:28):
of leaving assets to family members, but the guide this
month is how to leave assets to beneficiaries whoever that
might be. What's the best way to do it? Is
it outright? Is it staggered distributions? Do I want to
control it for you know, the divorce proof situation. Do
I want to get it to a next generation a

(10:49):
state tax free? Do I have children that are special needs?
I mean, there's so much to think about when you're
leaving your assets to your children, and this guide will
get you there. Starting your estate planning and you're thinking, well,
how should I leave my assets? Get the guide eight
six six eight four eight five six nine nine or

(11:10):
Legal Exchange Show dot com again eight six six eight
four eight five six nine nine or Legal Exchange Show
dot Com.

Speaker 2 (11:19):
Got another one for you, Tod. Let's go to Pam
in Maine. Pam, what's your question for Todd Lutsky.

Speaker 6 (11:26):
Well, it's exactly what he needs to open the show with.
I was just at my daughter's place in New York
and when we were going over everything, and there's just
one daughter and myself at this point. Huh, don't anticipate
there being anymore. She does have a husband, and I
have many assets over many different venues, approximately a million.

Speaker 7 (11:49):
Dollars okay, but the house is the main thing for her.
She's like, I don't want to sell my childhood home
and she doesn't want me to lose it basically to
you know, in the event that I have to go
into a home.

Speaker 3 (12:04):
Yes, so you know, it sounds like the house is
a big item and it is for a lot of people,
and so I think the type of planning that you
would need to do to protect it for her, assuming
you want to protect it for her. Again, we do
what the client wants not always what the children want.
So I want you to know that you would be
the decision maker. But if that is something you wish

(12:25):
to do, Yes, with an estate worth around a million
dollars in the house worth some portion of that, I
absolutely would transfer it to an irrevocable medicaid trust. Whether
we reserve a life estate or not would be something
we would determine. Then putting it in there is going
to keep you in control. Can't get into every detail today,
but you'd be ninety eight percent in control of that house.

(12:48):
But five years down the road, if you got sick
and went in the nursing home, it would be protected
for your daughter, and then your daughter could live there,
or you could control it through the trust for your daughter,
any number of those things. So hopefully that helps a little.
And yes, you're on the right track. That's exactly the
way I would proceed.

Speaker 2 (13:06):
Got one more for you, Todd. Let's go to David
in Tucker's This Boston or Brewster Boston. David in Boston.
You're up with Todd.

Speaker 8 (13:16):
Hi, Tod, thanks for taking the call. Just a quick question.
I'm single and as I'm getting older, all right, to
avoid probate what I want to do. I have a
very close friend that I want to leave my four
oh one k.

Speaker 5 (13:34):
Assets to.

Speaker 8 (13:34):
Yep, I'm going to leave my condos to my brother,
but to avoid probate. My understanding is that if I
put that friend as a beneficiary, that friend will be
able to have access to those assets, provided he's able
to get a certified death certificate.

Speaker 3 (13:52):
So so let's you're talking about the four oh one
k one K. Yeah, yeah, if you name a designated
beneficiary to four h on k, they should be able
to walk in to the institution. I suppose if they
have a death certificate to prove that you're deceased, and
then they'll show their driver's license so they know who
they are. Then they'll go pull the form, the designated

(14:12):
beneficiary form that the financial institution has and make sure
it matches who's sitting in front of them, and if
it does, I think that they'll be able to just
take take those assets. Not so easy though with the condo, right,
what do you plan on doing with that?

Speaker 8 (14:28):
Well that that I'm not sure just yet. But going
back to the going back to the UH four one K.
Do I need a certified certificate?

Speaker 1 (14:38):
Yeah?

Speaker 3 (14:38):
Yeah, just get a certify that's rearially the only kind
you can get. Get him a certified death certificate. And
well he'll get it. He'll just go to the registry.
He'll just go to the to the the you know,
to the board there and pick it up. So, yes,
so I hope that helps a little. Though we do
got a we got a scoot. But yeah, the condo
would be my only comment. Pay attention to the condo.
Probably use a trust for that.

Speaker 2 (14:58):
Mister Letsky, thank you how much for joining us today.

Speaker 3 (15:01):
My pleasure. Thank you.

Speaker 1 (15:03):
This has been asked Todd on the Financial Exchange Radio
network Aske Todd with Todd. Lutsky has been presented by
Cushing and Dolan, serving Massachusetts and New England for more
than thirty years, helping families with the state and tax planning,
Medicaid planning, and probate law. Call eight hundred three nine
three four thousand and one or visit Cushingdolan dot com.
The views expressed in this segment are solely those of

(15:24):
Cushing and Dolan. Armstrong Advisory does not provide any legal
or tax advice. Please consult with your illegal or tax
advisor on such matters. Cushing and Armstrong do not endorse
each other and are not affiliated
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