July 28, 2021 • 22 mins
Our friend and family law specialist Emmanuel Scozarro talks gives us great information on Elder Law and Wills.
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Episode Transcript
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Speaker 1 (00:07):
Welcome to Dementia Real Talk by Karen Thrive, a podcast
to help you navigate life with dementia, presented by Blair Pharmacy.
Whether you're living with dementia or a care partner for
someone with dementia, join us to learn more about what
to expect and practical approaches to adapt your world to thrive.
Now Welcome our hosts, Jerry Young and certified dementia practitioner
(00:28):
and trainer Judy Pritchard.
Speaker 2 (00:32):
Welcome, Judy, Welcome, Jerry. How are you.
Speaker 3 (00:34):
I'm doing great?
Speaker 4 (00:35):
You know I said this on the last podcast we did,
but what we're covering today once again is information that
I feel like you must have, and we're going to
talk about wills today.
Speaker 2 (00:46):
Yeah, And to be honest with you, it's that topic
around legal terms, legal paperwork that you need to have.
You know, unfortunately too many times that the only support
people get once they're diagnosed with dementia is go get
your affairs in order. There's so many other supports that
we need. But we are going to break down during
the series all those quote unquote affairs that you need
(01:06):
to get in order and make it really simple so
we know exactly what we need to do and the
and the pros and cons of the different scenarios. So
we are so excited to introduce our partner here and
our guest speaker on this series.
Speaker 4 (01:21):
We are Judy, and you know, we're so happy to
have attorney with us, Attorney Emmanuel Scazarro. And uh, you
know that's a mouthful for me for some reason, I
don't know why I trip over that, but anyway, welcome
in sir. First of all, it's so happy to have you.
Appreciate you taking you time.
Speaker 3 (01:38):
To do this. Thank you, Jerry.
Speaker 4 (01:39):
All right, let's let's start with why you should have
a will? Just basically, what are all the pros and
are there any cons to having a will?
Speaker 3 (01:48):
Okay?
Speaker 5 (01:48):
Uh, will comes in obviously when you pass away, you
want your assets to transfer to you, either places you
direct or places you don't direct. I like to start
this off by saying, you know, there's two situations. You
can pass away with a will, which is called dying
test state, and you can pass away without a will,
which is called dying intestate. And if you don't have
(02:10):
a will, then you still have in a state. You
will have in a state whether you have a will
or not. But if you don't have a will and
your estate is opened, you have to do what's called
in the state administration, and that is a lot more costly,
more time consuming. There's a bond issue that has to
be dealt with, and the bonds they're not cheap, and
you may not qualify for the bond, or the person
(02:31):
that does qualify maybe somebody you don't want to qualify.
The second part is you have to do an inventory
of the estate, which can be time consuming and taxing.
Your will will waive both of those requirements, so a will.
Speaker 4 (02:45):
It doesn't have to be overly complicated. A lot of
people say, well, I just that just so overwhelms me.
I'm just gonna put it off. But you can have
a simple will as well as if you have a
lot of assets, of course, it will make the will
more difficult.
Speaker 3 (02:59):
Correct. Correct.
Speaker 5 (03:00):
As a matter of fact, I try to keep my
wills between five and eight pages. One of the main
reasons is a lot of probate courts will charge more
for additional pages over five, but you can get it
all done within that five to eight page range. You know,
if it's more than that, you've either had a ton
of specific divisions of your assets or it's just overly worthy.
Speaker 2 (03:22):
So let me ask this before we dive further into
the legal aspects of it, just in the general around
a state. When we say a state, what is somebody's estate?
And are there minimum and maximum requirements for any type
that qualify you for an estate? Because I think some
people will sometimes say, you know, I really don't have
a whole lot to my name, why do I need
a will?
Speaker 5 (03:43):
And a state is anything you owe or I mean,
anything you own or anything you owe. You can actually
pass away owning nothing and having creditors and still having
a state.
Speaker 2 (03:52):
Okay, great, perfect, that's exactly what I wanted to know. Okay, wonderful.
So tell us a little bit more about what is
a will. So you've already said that. One thing that
you said it was interesting to me is you can
designate who you want to get something and who you
don't want to get something, so you can do both
sidesactly exactly.
Speaker 5 (04:09):
You can disinherit people, and typically you can disinherit a
child or you know that crazy brother you have or
a crazy uncle. Now, the one person you can't disinherit
in is your spouse. For instance, if you do a
will if you and your spouse have two wills together.
Obviously we don't do joint wills anymore.
Speaker 3 (04:25):
We do separate wills.
Speaker 5 (04:26):
But in your will, you couldn't disinherit your husband, or
your husband couldn't disinherit his wife in that situation. If
you did do that, then the husband or the wife
can petition at your death for the probate court to
give them thirty five percent of your estate.
Speaker 3 (04:41):
Oh.
Speaker 5 (04:41):
Interesting, it's called an elective share.
Speaker 3 (04:43):
They're going to get the elective share.
Speaker 2 (04:45):
Interesting. So even if you say so, then I guess
it's just a matter of principle. If I put it
in there that I'm going to disinherit my spouse, it's
just a matter of trying to get another dig in there.
Speaker 5 (04:53):
Huh Yeah, it's probably not gonna work.
Speaker 2 (04:55):
Yeah, exactly.
Speaker 3 (04:56):
Okay, good.
Speaker 2 (04:57):
Interesting.
Speaker 4 (04:58):
Okay, So if you I'm gonna hit the elephant in
the room. And I know a lot of people say, well,
I don't go to a lawyer because it's so expensive
to get this will done. One reality, that's not true.
Speaker 5 (05:10):
No, it's not a simple will is not a very
expensive process.
Speaker 4 (05:13):
So people that are afraid, well I don't go do this,
but in the long run, of course, it will cost
you way more money because then if you don't have
a will, that goes to probate and that's where problems
can begin.
Speaker 3 (05:25):
Yeah.
Speaker 5 (05:26):
I like to say having a bad will is better
than having no will, and having a will in place
is going to save your your beneficiaries and your error
is going to save them a lot of time and
heartache down the road.
Speaker 4 (05:39):
All right, Can you give an example of the clients
you may have had that had a will versus somebody
that didn't, and what the process you had to go through.
Speaker 5 (05:47):
I can actually give you example of three different situations. One,
you have a client that comes in you. I may
have done their will, say five ten years ago, they
pass away, their will was never modified or changed. They
have to have they have the original will. It's a
very simple process. Who whoever the executor is named in
the will, if they're still alive, our office would represent
(06:08):
that executor. We would file what's called a petition for
a letter's testamentary. We'd file a copy of the will,
the original will, and file a copy of the death certificate.
And if there's any consents that need to be signed,
or if everybody consents the will being admitted to probate.
Speaker 3 (06:21):
There's no hearing.
Speaker 5 (06:23):
The executor is granted letters, and at that point they
start taking control of the assets and distributing the state.
Speaker 3 (06:29):
Wow.
Speaker 4 (06:30):
So, so what.
Speaker 2 (06:31):
Is an executive of a will?
Speaker 4 (06:32):
Yeah, that's what that's when you said that, why would
you pick an executor? And who do you pick to
be executor?
Speaker 3 (06:38):
Okay?
Speaker 5 (06:39):
Alabama defines an executor as a personal representative and that
can be an executor in a will, or that can
be the administrator of your estate. This is the term
that our code uses as personal representative. It's somebody that
represents you personally after you die, because you're still going
to have, like I say, after you die, you're going
to have in the state, you're going to either own
assets or you're going to have liabilities or quite commonly both.
Speaker 2 (07:01):
Okay, very good. So it's somebody that you're designating that's
going to take care of making sure your will's followed through.
Speaker 5 (07:08):
Yes, And I always tell people that doesn't necessarily have
to be somebody that's younger than you, but it does
need to be somebody that number one, you trust, somebody
that's not more that's more than just a you know,
a casual acquaintance. And really the only qualification I think
people really need to have to be an executor.
Speaker 3 (07:24):
Is can you follow instructions?
Speaker 5 (07:26):
Okay, because a lot of what an executor is going
to do is following instructions one that we're giving them
as lawyers, and two that the court is going to
give them, because the court's going to have some specific
instructions that are handed down once we probate the will.
As long as you can follow simple instructions, you can
be an executor.
Speaker 2 (07:42):
Does it have to be a family member, No, it
does not. It can just be anybody that I want
to choose to.
Speaker 5 (07:47):
It could be anybody. It can be it can be
a law firm, it can be.
Speaker 3 (07:52):
Anybody. It could just be.
Speaker 5 (07:53):
You know, typically with a typical situation, as you have
a married couple, husband and why wife the husband's executor
if he passes and husband is the wives and from
that point on you do want to pick backup executors,
which would be alternates. And if you have older children,
that's an obvious avenue. If you have brothers and sisters
(08:16):
and siblings and those kind of things, they can be
alternates as well.
Speaker 4 (08:19):
In a will, is the advance directive in the will
or is that a separate document.
Speaker 3 (08:24):
That's a separate document.
Speaker 4 (08:25):
So, but if you go to see an attorney, you
can do a will and advance directive in all the
other matters in what we've called our care team or whatever.
Speaker 3 (08:35):
Exactly a plan.
Speaker 5 (08:36):
I should say, as a matter of fact, I have
a basic plan, which is a basic will package, which
is a simple will, an advanced directive and a durable
power of attorney. And that's really the three basic documents
that we all need.
Speaker 2 (08:47):
Excellent, so and you can so once you're diagnosed with dementia,
does that eliminate your ability to be able to establish
these things?
Speaker 5 (08:55):
Not necessarily great. It kind of depends on the stage
or at the law. Just thing about signing a test
state document like this, which would be a will, a
POA and an advanced directive is do you have testamentary capacity?
And what that really means is when the moment you're
signing it, do you know what you're signing? Have you
had what they considered a lucid moment? And you know
(09:18):
what I consider that is they know that this document
is a piece of paper that I'm signing that's allowing
someone else to either A make decisions for me or B.
Once I'm gone, transfer whatever I set to wherever I
say it should be transferred.
Speaker 2 (09:30):
And do you need a physician's note or something from
your doctor stating that you are able to sign your documents?
Speaker 5 (09:37):
If you have it, it wouldn't hurt I don't. We don't
get those very often. Doctors don't like to go on
record and say those kind of things. Typically it's a
decision that the attorney can make and should make excellent.
I've had times where, like I said before, I have
a video will signings and legal document signings, mainly not
because I was concerned about it, but if anybody else
(09:58):
would ever challenge it down the road, you at least
have that evidence that hey, when I was I was
there obviously and here they are, you know, on tape.
Speaker 3 (10:05):
Right.
Speaker 4 (10:06):
So, people when they talk about will versus living will
or why is there a different word for living will
versus will living will?
Speaker 5 (10:15):
Is it's actually not a will as a living will
is basically my set of instructions for if I'm in
a situation where I'm terminally ill or terminally injured, or
if I'm unconscious. That's telling a doctor or a hospital.
If I'm in a certain condition and I can't talk
to you, this is what I've done. It's termed will
just because it's your's. It's your kind of your last directive,
so to speak. But that's what's that's what's including what's
(10:37):
called an advanced directive.
Speaker 3 (10:38):
All right.
Speaker 4 (10:38):
So going back to will, and I know we discussed
this in an earlier podcast, but revocable living trust is
that a will. Does that replace your will? Or do
you need a will?
Speaker 3 (10:46):
Also?
Speaker 5 (10:47):
It can replace your will as a matter of fact.
With a revocable living trust package, what you'll have is
you'll have your revocable living trust and you'll also have
what's called a poor overwhell. It behaves the same way
any asset that you put into revocable living trust. The
advantage of that is, as opposed to having to probate
a will and go through the process of something the
petition to probate court and involving courts and lawyers and
(11:10):
those kind of things, the asset would transfer immediately to whomever.
Typically you're going to have the asset transferred to the
name of the trustee of the will. I mean to
name the trustee of the revocable living trust and whoever
the beneficiary is is going to step up.
Speaker 2 (11:24):
So that's getting real technical in there as far as
following along. But the first and foremost thing to do
is reach out to an attorney and a specific type
of attorney. Yes, which you are, tell us what type
of attorney you are.
Speaker 5 (11:36):
A state planning, elder law and asset transferred preservation.
Speaker 2 (11:41):
Perfect, and tell us a little bit about elder law.
Speaker 5 (11:44):
Okay, elder law is fairly, fairly new genre, I guess
you could say of the law. It kind of combines
a whole bunch of different things that have been kind
of been out there forever. You've always had a state
planning attorneys, you've always had lawyers riding whills. Like Abraham
Lincoln wrote wills. He was, you know, two hundred plus
years ago. But over the last say, twenty five thirty years,
(12:06):
it's kind of coalesced into there's medicaid issues, there's a
state planning issues, there's nursing home issues, there's long term
care issues, and all these things have kind of been
combined under the umbrella of elder law.
Speaker 3 (12:18):
Or elder care.
Speaker 2 (12:19):
And those are all topics that we're going to cover
in this ongoing series that we're going to have with Emmanuel.
Thank you, that really is helpful. All right, So we're
going to get our will in place. What happens if
we don't have a will.
Speaker 5 (12:30):
If you don't have a will, you still have in
a state, and obviously you can still pass away unfortunately,
but if you pass away without a will, it's called
dying intestate. What that means is anybody who knows that
you've passed and anybody and anybody that knows you've passed
away and has a copy for death certificate can file
a petition to open a state. And in that situation though,
they have to be bonded and they have to do
(12:53):
an inventory of this estate. Now and the state administration
is a lot more complicated in terms of the dots
you have to dit and to tease you have to cross.
The biggest problem you have is the bonding requirement. To
open an a state without a will, you have to
be bonding. I use a couple of different local bonding
(13:14):
companies and the biggest thing they checked for is they
do a credit check.
Speaker 2 (13:18):
So can anybody go and open in the state.
Speaker 5 (13:20):
Anybody As a matter of fact, For instance, I've had
clients in the past where I had one last year
that she hired us to open the state. There was
a person passed away without a will. Bonding company calls
me back and tells her that her credit is terrible,
she can't qualify. I ended up being the administrator. The
(13:42):
law will allow the attorney to be both administrator and
attorney at the same time. It's more expensive, obviously, and
it's a whole new set of duties for me as
a lawyer. And you do all the things that she
would have done, like open up the bank accounts, marshal
the assets, either sell the assets, or transfer the assets.
(14:02):
But it's you doing it versus the actual client.
Speaker 2 (14:05):
Wow, what if you have just thrown out of scenario.
So if I had two children and I passed away
and I didn't have a will, what if they both
tried to open the estate.
Speaker 5 (14:16):
They could do it jointly, if they tried to open
it in separate times, kind of battling against each other.
It's really a first and time thing as long as
they've opened it up in the right county, because you've
got to open up in the county that you was
I doing.
Speaker 2 (14:29):
Okay, interesting, and do these laws vary by state in
a great degree, or is it still the same basic process.
Speaker 3 (14:37):
It varies by state.
Speaker 5 (14:38):
There is such a thing as a uniform probate code
which every state has adopted. Now every different states have
their different quote unquote spin on the laws that they have,
different aspects that are going to vary from state to state.
For instance, Louisiana, it's a whole different set of laws
from what we are. We're based on what's called the
English common law. In Louisiana's based on French canon law.
(15:01):
So their probate code is totally different than ours in
the sense that the way they transfer assets what they
call things, But essentially it's the same type of process.
Speaker 2 (15:10):
Interesting, So, what happens if you were a person that
in your will, that you did have a will, and
you named somebody as the executor of your will, but
they lived out of state? Do they follow the state
that they live in laws or the state that the
person that passed away ends laws.
Speaker 5 (15:27):
The state that the person passed away. Interesting you bring
that up because if a person lives out of state
and they want to open a state for someone without
a will, they can't do it. You have to be
arrested out the state of Alabama to open a state administration.
Speaker 3 (15:41):
But you can name somebody out of state to be
your executor.
Speaker 5 (15:45):
We've probated a states where the executor lived in Indiana.
Speaker 3 (15:48):
Texas, New York.
Speaker 5 (15:50):
They coordinate everything and all those things can be done
obviously because of technology, but you're going to follow the
laws of the state where the will's actually opened up.
Speaker 2 (15:59):
I actually had that scenario. I was an executor of
a will for somebody in Pennsylvania and it was very challenging,
not being familiar with any of this process to try
and navigate everything out of state. Very interesting, but okay,
So if you do have a will, you can name executive.
It doesn't matter where they live. If you don't, they
(16:20):
can't open an estate. And once you pass, if they're
not in the state that you passed away in, you.
Speaker 5 (16:27):
Talking about anotle state postal representative. No, if the opening
in a state without a will, they couldn't. You do
have an alternate scenario, one that I had come up
last year. Got a will that were proaded last year.
The will was actually drafted in like nineteen seventy two,
and the person that passed away lived in his entire
(16:48):
life under this will after he drafted the will. His son,
who was born in nineteen seventy seven, has the will
or had a copy of it, and the two people
that were named as executors had died because the will
was so old. So what we had to do in
that situation is we had to open an a state
administration with the will annexed, which in that situation, this
(17:09):
gentleman had to be bonded. But you can still, you know,
even if you're not named in the will as the executor,
you can still open the will be named the personal representative.
Of course, they either have to be like in that situation,
deceased or gone, or they can disclaim like an executor
or a personal representative named. They can do what's called
a disclaimer, which says I don't want to be the executor.
Speaker 4 (17:31):
How often do you need to look at your will,
your papers in general, and update them.
Speaker 5 (17:37):
I tell people every three to five years. Those are
time spans that your life is gonna change. You're gonna
either change jobs, have more kids if you're younger, or
have grandkids, or divorce unfortunately, things like that. You're gonna
have life changes in those increments.
Speaker 2 (17:55):
All right, So you were saying within when someone passes you, Basically,
if the will doesn't specify where certain things go assets go,
then they're sold. Is that right?
Speaker 5 (18:08):
Typically, Typically, what a will is going to do is
it's going to divide the assets up between will property,
which is a lands houses, that kind of thing, and
personal property. It's going to name a beneficiary, and if
that beneficiary predeceases or is unable to take the asset,
then it will go to a contingent beneficiary. Now, the
way my wheels are structured, if everybody's gone, if you know,
(18:31):
if there's some kind of catastrophic accident and there's no beneficiaries,
what it would do is it would just behave as
if the person died in testate, and then you would
actually look for the different areas you would actually look
through in testacy and see, you know, whereas the next
of ken. That next of Ken could be a first
cousin in San Diego, California.
Speaker 2 (18:50):
Okay, that makes sense.
Speaker 4 (18:51):
So what happens if there's two children and the parent,
the last living parent, passes away. The prob judges himself
gets involved and he decides what to do with the
a state.
Speaker 5 (19:06):
You're talking about in the situation with no will.
Speaker 4 (19:08):
Yes, I didn't do a will, for example, and I
die and leave two kids to I didn't care about it.
So I own a house, own a car, onw some
stuff in the house. Who decides where it goes and
who gets what?
Speaker 5 (19:22):
Well, ultimately the probate judge will, but only if somebody
brings that before him. He wouldn't have the power to
do it just on his own. Somebody would have to
file in the state administration. They would have to meet
the bonding requirement when they file the petition.
Speaker 3 (19:36):
They have to have the bond employees.
Speaker 5 (19:38):
Now, that can be anybody from one of those two kids,
it can be any other relative. It can actually be
a creditor. There are situations where creditors are owed hundreds
and thousands of dollars. They can open the estate on
someone as long as this as long as they've been
deceased within the last five years.
Speaker 4 (19:55):
So the house then would just sit there for a while.
Speaker 3 (19:58):
Essentially. Wow.
Speaker 2 (20:00):
So so okay, let's go back to dementia for a second.
I established my will once I'm diagnosed, and as as
the disease processes, I'm not going to have the ability
to make decisions on my own. Does anybody have the
power to come in and change my will?
Speaker 5 (20:21):
If you execute a durable power of attorney that has
the expanded powers, potentially the person that's your agent under
that type of situation, if you've executed that DPOA that
has the expanded power list, they can make certain changes
to your state plan. Not all the changes, but if
you if you have dementia and one of your executors
(20:43):
passed away or both of them, then the person that
has POA could go in and actually rename the executors.
Speaker 2 (20:49):
Oh interesting, Okay, good to know.
Speaker 4 (20:52):
Wow, a lot of good information on this podcast, isn't it.
Speaker 2 (20:54):
Gdy Oh, it's just it's fascinating to me. But it
answers so many questions that people FAI.
Speaker 4 (21:00):
And I think it shows the importance of just how
important it really is to have a will and to.
Speaker 2 (21:05):
Have an elder law attorney that is just knowledgeable specifically
to these specific scenarios. So, Emanuel, we can't thank you enough.
Thank you for being here, and I look for look
forward to the next one.
Speaker 4 (21:17):
Well, okay, we'll say your Real sin on another edition
of Dementia Real Talk with Judy Princhard, and I'm Jersey.
Speaker 2 (21:24):
Thanks so much, everybody Thrive on Thanks.
Speaker 1 (21:26):
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(22:09):
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Speaker 4 (22:22):
The purpose of this podcast is to educate, into and form.
It is not a substitute for professional care by a
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Welcome to Dementia Real Talk by Karen Thrive, a podcast
to help you navigate life with dementia, presented by Blair Pharmacy.
Whether you're living with dementia or a care partner for
someone with dementia, join us to learn more about what
to expect and practical approaches to adapt your world to thrive.
Now Welcome our hosts, Jerry Young and certified dementia practitioner
(00:28):
and trainer Judy Pritchard.
Speaker 2 (00:32):
Welcome, Judy, Welcome, Jerry. How are you.
Speaker 3 (00:34):
I'm doing great?
Speaker 4 (00:35):
You know I said this on the last podcast we did,
but what we're covering today once again is information that
I feel like you must have, and we're going to
talk about wills today.
Speaker 2 (00:46):
Yeah, And to be honest with you, it's that topic
around legal terms, legal paperwork that you need to have.
You know, unfortunately too many times that the only support
people get once they're diagnosed with dementia is go get
your affairs in order. There's so many other supports that
we need. But we are going to break down during
the series all those quote unquote affairs that you need
(01:06):
to get in order and make it really simple so
we know exactly what we need to do and the
and the pros and cons of the different scenarios. So
we are so excited to introduce our partner here and
our guest speaker on this series.
Speaker 4 (01:21):
We are Judy, and you know, we're so happy to
have attorney with us, Attorney Emmanuel Scazarro. And uh, you
know that's a mouthful for me for some reason, I
don't know why I trip over that, but anyway, welcome
in sir. First of all, it's so happy to have you.
Appreciate you taking you time.
Speaker 3 (01:38):
To do this. Thank you, Jerry.
Speaker 4 (01:39):
All right, let's let's start with why you should have
a will? Just basically, what are all the pros and
are there any cons to having a will?
Speaker 3 (01:48):
Okay?
Speaker 5 (01:48):
Uh, will comes in obviously when you pass away, you
want your assets to transfer to you, either places you
direct or places you don't direct. I like to start
this off by saying, you know, there's two situations. You
can pass away with a will, which is called dying
test state, and you can pass away without a will,
which is called dying intestate. And if you don't have
(02:10):
a will, then you still have in a state. You
will have in a state whether you have a will
or not. But if you don't have a will and
your estate is opened, you have to do what's called
in the state administration, and that is a lot more costly,
more time consuming. There's a bond issue that has to
be dealt with, and the bonds they're not cheap, and
you may not qualify for the bond, or the person
(02:31):
that does qualify maybe somebody you don't want to qualify.
The second part is you have to do an inventory
of the estate, which can be time consuming and taxing.
Your will will waive both of those requirements, so a will.
Speaker 4 (02:45):
It doesn't have to be overly complicated. A lot of
people say, well, I just that just so overwhelms me.
I'm just gonna put it off. But you can have
a simple will as well as if you have a
lot of assets, of course, it will make the will
more difficult.
Speaker 3 (02:59):
Correct. Correct.
Speaker 5 (03:00):
As a matter of fact, I try to keep my
wills between five and eight pages. One of the main
reasons is a lot of probate courts will charge more
for additional pages over five, but you can get it
all done within that five to eight page range. You know,
if it's more than that, you've either had a ton
of specific divisions of your assets or it's just overly worthy.
Speaker 2 (03:22):
So let me ask this before we dive further into
the legal aspects of it, just in the general around
a state. When we say a state, what is somebody's estate?
And are there minimum and maximum requirements for any type
that qualify you for an estate? Because I think some
people will sometimes say, you know, I really don't have
a whole lot to my name, why do I need
a will?
Speaker 5 (03:43):
And a state is anything you owe or I mean,
anything you own or anything you owe. You can actually
pass away owning nothing and having creditors and still having
a state.
Speaker 2 (03:52):
Okay, great, perfect, that's exactly what I wanted to know. Okay, wonderful.
So tell us a little bit more about what is
a will. So you've already said that. One thing that
you said it was interesting to me is you can
designate who you want to get something and who you
don't want to get something, so you can do both
sidesactly exactly.
Speaker 5 (04:09):
You can disinherit people, and typically you can disinherit a
child or you know that crazy brother you have or
a crazy uncle. Now, the one person you can't disinherit
in is your spouse. For instance, if you do a
will if you and your spouse have two wills together.
Obviously we don't do joint wills anymore.
Speaker 3 (04:25):
We do separate wills.
Speaker 5 (04:26):
But in your will, you couldn't disinherit your husband, or
your husband couldn't disinherit his wife in that situation. If
you did do that, then the husband or the wife
can petition at your death for the probate court to
give them thirty five percent of your estate.
Speaker 3 (04:41):
Oh.
Speaker 5 (04:41):
Interesting, it's called an elective share.
Speaker 3 (04:43):
They're going to get the elective share.
Speaker 2 (04:45):
Interesting. So even if you say so, then I guess
it's just a matter of principle. If I put it
in there that I'm going to disinherit my spouse, it's
just a matter of trying to get another dig in there.
Speaker 5 (04:53):
Huh Yeah, it's probably not gonna work.
Speaker 2 (04:55):
Yeah, exactly.
Speaker 3 (04:56):
Okay, good.
Speaker 2 (04:57):
Interesting.
Speaker 4 (04:58):
Okay, So if you I'm gonna hit the elephant in
the room. And I know a lot of people say, well,
I don't go to a lawyer because it's so expensive
to get this will done. One reality, that's not true.
Speaker 5 (05:10):
No, it's not a simple will is not a very
expensive process.
Speaker 4 (05:13):
So people that are afraid, well I don't go do this,
but in the long run, of course, it will cost
you way more money because then if you don't have
a will, that goes to probate and that's where problems
can begin.
Speaker 3 (05:25):
Yeah.
Speaker 5 (05:26):
I like to say having a bad will is better
than having no will, and having a will in place
is going to save your your beneficiaries and your error
is going to save them a lot of time and
heartache down the road.
Speaker 4 (05:39):
All right, Can you give an example of the clients
you may have had that had a will versus somebody
that didn't, and what the process you had to go through.
Speaker 5 (05:47):
I can actually give you example of three different situations. One,
you have a client that comes in you. I may
have done their will, say five ten years ago, they
pass away, their will was never modified or changed. They
have to have they have the original will. It's a
very simple process. Who whoever the executor is named in
the will, if they're still alive, our office would represent
(06:08):
that executor. We would file what's called a petition for
a letter's testamentary. We'd file a copy of the will,
the original will, and file a copy of the death certificate.
And if there's any consents that need to be signed,
or if everybody consents the will being admitted to probate.
Speaker 3 (06:21):
There's no hearing.
Speaker 5 (06:23):
The executor is granted letters, and at that point they
start taking control of the assets and distributing the state.
Speaker 3 (06:29):
Wow.
Speaker 4 (06:30):
So, so what.
Speaker 2 (06:31):
Is an executive of a will?
Speaker 4 (06:32):
Yeah, that's what that's when you said that, why would
you pick an executor? And who do you pick to
be executor?
Speaker 3 (06:38):
Okay?
Speaker 5 (06:39):
Alabama defines an executor as a personal representative and that
can be an executor in a will, or that can
be the administrator of your estate. This is the term
that our code uses as personal representative. It's somebody that
represents you personally after you die, because you're still going
to have, like I say, after you die, you're going
to have in the state, you're going to either own
assets or you're going to have liabilities or quite commonly both.
Speaker 2 (07:01):
Okay, very good. So it's somebody that you're designating that's
going to take care of making sure your will's followed through.
Speaker 5 (07:08):
Yes, And I always tell people that doesn't necessarily have
to be somebody that's younger than you, but it does
need to be somebody that number one, you trust, somebody
that's not more that's more than just a you know,
a casual acquaintance. And really the only qualification I think
people really need to have to be an executor.
Speaker 3 (07:24):
Is can you follow instructions?
Speaker 5 (07:26):
Okay, because a lot of what an executor is going
to do is following instructions one that we're giving them
as lawyers, and two that the court is going to
give them, because the court's going to have some specific
instructions that are handed down once we probate the will.
As long as you can follow simple instructions, you can
be an executor.
Speaker 2 (07:42):
Does it have to be a family member, No, it
does not. It can just be anybody that I want
to choose to.
Speaker 5 (07:47):
It could be anybody. It can be it can be
a law firm, it can be.
Speaker 3 (07:52):
Anybody. It could just be.
Speaker 5 (07:53):
You know, typically with a typical situation, as you have
a married couple, husband and why wife the husband's executor
if he passes and husband is the wives and from
that point on you do want to pick backup executors,
which would be alternates. And if you have older children,
that's an obvious avenue. If you have brothers and sisters
(08:16):
and siblings and those kind of things, they can be
alternates as well.
Speaker 4 (08:19):
In a will, is the advance directive in the will
or is that a separate document.
Speaker 3 (08:24):
That's a separate document.
Speaker 4 (08:25):
So, but if you go to see an attorney, you
can do a will and advance directive in all the
other matters in what we've called our care team or whatever.
Speaker 3 (08:35):
Exactly a plan.
Speaker 5 (08:36):
I should say, as a matter of fact, I have
a basic plan, which is a basic will package, which
is a simple will, an advanced directive and a durable
power of attorney. And that's really the three basic documents
that we all need.
Speaker 2 (08:47):
Excellent, so and you can so once you're diagnosed with dementia,
does that eliminate your ability to be able to establish
these things?
Speaker 5 (08:55):
Not necessarily great. It kind of depends on the stage
or at the law. Just thing about signing a test
state document like this, which would be a will, a
POA and an advanced directive is do you have testamentary capacity?
And what that really means is when the moment you're
signing it, do you know what you're signing? Have you
had what they considered a lucid moment? And you know
(09:18):
what I consider that is they know that this document
is a piece of paper that I'm signing that's allowing
someone else to either A make decisions for me or B.
Once I'm gone, transfer whatever I set to wherever I
say it should be transferred.
Speaker 2 (09:30):
And do you need a physician's note or something from
your doctor stating that you are able to sign your documents?
Speaker 5 (09:37):
If you have it, it wouldn't hurt I don't. We don't
get those very often. Doctors don't like to go on
record and say those kind of things. Typically it's a
decision that the attorney can make and should make excellent.
I've had times where, like I said before, I have
a video will signings and legal document signings, mainly not
because I was concerned about it, but if anybody else
(09:58):
would ever challenge it down the road, you at least
have that evidence that hey, when I was I was
there obviously and here they are, you know, on tape.
Speaker 3 (10:05):
Right.
Speaker 4 (10:06):
So, people when they talk about will versus living will
or why is there a different word for living will
versus will living will?
Speaker 5 (10:15):
Is it's actually not a will as a living will
is basically my set of instructions for if I'm in
a situation where I'm terminally ill or terminally injured, or
if I'm unconscious. That's telling a doctor or a hospital.
If I'm in a certain condition and I can't talk
to you, this is what I've done. It's termed will
just because it's your's. It's your kind of your last directive,
so to speak. But that's what's that's what's including what's
(10:37):
called an advanced directive.
Speaker 3 (10:38):
All right.
Speaker 4 (10:38):
So going back to will, and I know we discussed
this in an earlier podcast, but revocable living trust is
that a will. Does that replace your will? Or do
you need a will?
Speaker 3 (10:46):
Also?
Speaker 5 (10:47):
It can replace your will as a matter of fact.
With a revocable living trust package, what you'll have is
you'll have your revocable living trust and you'll also have
what's called a poor overwhell. It behaves the same way
any asset that you put into revocable living trust. The
advantage of that is, as opposed to having to probate
a will and go through the process of something the
petition to probate court and involving courts and lawyers and
(11:10):
those kind of things, the asset would transfer immediately to whomever.
Typically you're going to have the asset transferred to the
name of the trustee of the will. I mean to
name the trustee of the revocable living trust and whoever
the beneficiary is is going to step up.
Speaker 2 (11:24):
So that's getting real technical in there as far as
following along. But the first and foremost thing to do
is reach out to an attorney and a specific type
of attorney. Yes, which you are, tell us what type
of attorney you are.
Speaker 5 (11:36):
A state planning, elder law and asset transferred preservation.
Speaker 2 (11:41):
Perfect, and tell us a little bit about elder law.
Speaker 5 (11:44):
Okay, elder law is fairly, fairly new genre, I guess
you could say of the law. It kind of combines
a whole bunch of different things that have been kind
of been out there forever. You've always had a state
planning attorneys, you've always had lawyers riding whills. Like Abraham
Lincoln wrote wills. He was, you know, two hundred plus
years ago. But over the last say, twenty five thirty years,
(12:06):
it's kind of coalesced into there's medicaid issues, there's a
state planning issues, there's nursing home issues, there's long term
care issues, and all these things have kind of been
combined under the umbrella of elder law.
Speaker 3 (12:18):
Or elder care.
Speaker 2 (12:19):
And those are all topics that we're going to cover
in this ongoing series that we're going to have with Emmanuel.
Thank you, that really is helpful. All right, So we're
going to get our will in place. What happens if
we don't have a will.
Speaker 5 (12:30):
If you don't have a will, you still have in
a state, and obviously you can still pass away unfortunately,
but if you pass away without a will, it's called
dying intestate. What that means is anybody who knows that
you've passed and anybody and anybody that knows you've passed
away and has a copy for death certificate can file
a petition to open a state. And in that situation though,
they have to be bonded and they have to do
(12:53):
an inventory of this estate. Now and the state administration
is a lot more complicated in terms of the dots
you have to dit and to tease you have to cross.
The biggest problem you have is the bonding requirement. To
open an a state without a will, you have to
be bonding. I use a couple of different local bonding
(13:14):
companies and the biggest thing they checked for is they
do a credit check.
Speaker 2 (13:18):
So can anybody go and open in the state.
Speaker 5 (13:20):
Anybody As a matter of fact, For instance, I've had
clients in the past where I had one last year
that she hired us to open the state. There was
a person passed away without a will. Bonding company calls
me back and tells her that her credit is terrible,
she can't qualify. I ended up being the administrator. The
(13:42):
law will allow the attorney to be both administrator and
attorney at the same time. It's more expensive, obviously, and
it's a whole new set of duties for me as
a lawyer. And you do all the things that she
would have done, like open up the bank accounts, marshal
the assets, either sell the assets, or transfer the assets.
(14:02):
But it's you doing it versus the actual client.
Speaker 2 (14:05):
Wow, what if you have just thrown out of scenario.
So if I had two children and I passed away
and I didn't have a will, what if they both
tried to open the estate.
Speaker 5 (14:16):
They could do it jointly, if they tried to open
it in separate times, kind of battling against each other.
It's really a first and time thing as long as
they've opened it up in the right county, because you've
got to open up in the county that you was
I doing.
Speaker 2 (14:29):
Okay, interesting, and do these laws vary by state in
a great degree, or is it still the same basic process.
Speaker 3 (14:37):
It varies by state.
Speaker 5 (14:38):
There is such a thing as a uniform probate code
which every state has adopted. Now every different states have
their different quote unquote spin on the laws that they have,
different aspects that are going to vary from state to state.
For instance, Louisiana, it's a whole different set of laws
from what we are. We're based on what's called the
English common law. In Louisiana's based on French canon law.
(15:01):
So their probate code is totally different than ours in
the sense that the way they transfer assets what they
call things, But essentially it's the same type of process.
Speaker 2 (15:10):
Interesting, So, what happens if you were a person that
in your will, that you did have a will, and
you named somebody as the executor of your will, but
they lived out of state? Do they follow the state
that they live in laws or the state that the
person that passed away ends laws.
Speaker 5 (15:27):
The state that the person passed away. Interesting you bring
that up because if a person lives out of state
and they want to open a state for someone without
a will, they can't do it. You have to be
arrested out the state of Alabama to open a state administration.
Speaker 3 (15:41):
But you can name somebody out of state to be
your executor.
Speaker 5 (15:45):
We've probated a states where the executor lived in Indiana.
Speaker 3 (15:48):
Texas, New York.
Speaker 5 (15:50):
They coordinate everything and all those things can be done
obviously because of technology, but you're going to follow the
laws of the state where the will's actually opened up.
Speaker 2 (15:59):
I actually had that scenario. I was an executor of
a will for somebody in Pennsylvania and it was very challenging,
not being familiar with any of this process to try
and navigate everything out of state. Very interesting, but okay,
So if you do have a will, you can name executive.
It doesn't matter where they live. If you don't, they
(16:20):
can't open an estate. And once you pass, if they're
not in the state that you passed away in, you.
Speaker 5 (16:27):
Talking about anotle state postal representative. No, if the opening
in a state without a will, they couldn't. You do
have an alternate scenario, one that I had come up
last year. Got a will that were proaded last year.
The will was actually drafted in like nineteen seventy two,
and the person that passed away lived in his entire
(16:48):
life under this will after he drafted the will. His son,
who was born in nineteen seventy seven, has the will
or had a copy of it, and the two people
that were named as executors had died because the will
was so old. So what we had to do in
that situation is we had to open an a state
administration with the will annexed, which in that situation, this
(17:09):
gentleman had to be bonded. But you can still, you know,
even if you're not named in the will as the executor,
you can still open the will be named the personal representative.
Of course, they either have to be like in that situation,
deceased or gone, or they can disclaim like an executor
or a personal representative named. They can do what's called
a disclaimer, which says I don't want to be the executor.
Speaker 4 (17:31):
How often do you need to look at your will,
your papers in general, and update them.
Speaker 5 (17:37):
I tell people every three to five years. Those are
time spans that your life is gonna change. You're gonna
either change jobs, have more kids if you're younger, or
have grandkids, or divorce unfortunately, things like that. You're gonna
have life changes in those increments.
Speaker 2 (17:55):
All right, So you were saying within when someone passes you, Basically,
if the will doesn't specify where certain things go assets go,
then they're sold. Is that right?
Speaker 5 (18:08):
Typically, Typically, what a will is going to do is
it's going to divide the assets up between will property,
which is a lands houses, that kind of thing, and
personal property. It's going to name a beneficiary, and if
that beneficiary predeceases or is unable to take the asset,
then it will go to a contingent beneficiary. Now, the
way my wheels are structured, if everybody's gone, if you know,
(18:31):
if there's some kind of catastrophic accident and there's no beneficiaries,
what it would do is it would just behave as
if the person died in testate, and then you would
actually look for the different areas you would actually look
through in testacy and see, you know, whereas the next
of ken. That next of Ken could be a first
cousin in San Diego, California.
Speaker 2 (18:50):
Okay, that makes sense.
Speaker 4 (18:51):
So what happens if there's two children and the parent,
the last living parent, passes away. The prob judges himself
gets involved and he decides what to do with the
a state.
Speaker 5 (19:06):
You're talking about in the situation with no will.
Speaker 4 (19:08):
Yes, I didn't do a will, for example, and I
die and leave two kids to I didn't care about it.
So I own a house, own a car, onw some
stuff in the house. Who decides where it goes and
who gets what?
Speaker 5 (19:22):
Well, ultimately the probate judge will, but only if somebody
brings that before him. He wouldn't have the power to
do it just on his own. Somebody would have to
file in the state administration. They would have to meet
the bonding requirement when they file the petition.
Speaker 3 (19:36):
They have to have the bond employees.
Speaker 5 (19:38):
Now, that can be anybody from one of those two kids,
it can be any other relative. It can actually be
a creditor. There are situations where creditors are owed hundreds
and thousands of dollars. They can open the estate on
someone as long as this as long as they've been
deceased within the last five years.
Speaker 4 (19:55):
So the house then would just sit there for a while.
Speaker 3 (19:58):
Essentially. Wow.
Speaker 2 (20:00):
So so okay, let's go back to dementia for a second.
I established my will once I'm diagnosed, and as as
the disease processes, I'm not going to have the ability
to make decisions on my own. Does anybody have the
power to come in and change my will?
Speaker 5 (20:21):
If you execute a durable power of attorney that has
the expanded powers, potentially the person that's your agent under
that type of situation, if you've executed that DPOA that
has the expanded power list, they can make certain changes
to your state plan. Not all the changes, but if
you if you have dementia and one of your executors
(20:43):
passed away or both of them, then the person that
has POA could go in and actually rename the executors.
Speaker 2 (20:49):
Oh interesting, Okay, good to know.
Speaker 4 (20:52):
Wow, a lot of good information on this podcast, isn't it.
Speaker 2 (20:54):
Gdy Oh, it's just it's fascinating to me. But it
answers so many questions that people FAI.
Speaker 4 (21:00):
And I think it shows the importance of just how
important it really is to have a will and to.
Speaker 2 (21:05):
Have an elder law attorney that is just knowledgeable specifically
to these specific scenarios. So, Emanuel, we can't thank you enough.
Thank you for being here, and I look for look
forward to the next one.
Speaker 4 (21:17):
Well, okay, we'll say your Real sin on another edition
of Dementia Real Talk with Judy Princhard, and I'm Jersey.
Speaker 2 (21:24):
Thanks so much, everybody Thrive on Thanks.
Speaker 1 (21:26):
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(22:09):
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Speaker 4 (22:22):
The purpose of this podcast is to educate, into and form.
It is not a substitute for professional care by a
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