Nugen Law; focusing on estate planning and elder care law, emphasizing independence and quality of life.

Serving Indiana, Ohio, Michigan, and Florida.

More information at NugenLaw.com.

good evening.

>> Welcome to LIFE Ahead right here on PBS for Way I'm Sally Thompson, the host of the show but our real star you're going to meet in just a moment if you haven't watched before if you have you don't know him.

Brian Nugent is an attorney specializing in elder law and he comes to see just about every month and shares a lot of information here he is right here you'll recognize right.

>> But as I said, he thank you for having me.

>> I really appreciate it.

Well, you know, I've learned a lot from you and one of the thing and then I try to remember so if I'm out just having a casual conversation with other people, I can work in those legal circles and pretend I'm no good for you.

But you're going to teach us from new stuff.

Well, I see I hope I hope so.

>> Well, we're going to let's first talk about some basics, some of the basic terminology just very quickly go over it and I know we've talked about this before.

You called documents like your will and testament, your power of attorney.

>> You call them instruments I'll say instrument because I think that saying using the word document kind of downplays how important those those items that you're signing those instruments are.

>> And so I want to give it a weight that it deserves and the instruments that we use are only one or their attorneys using that phrase as well.

I think that sometimes I was just having conversation earlier today about folks were saying they had heard another professional suggests printing documents off online.

>> And so I think that it doesn't necessarily maybe folks think that sometimes when you have these items that you're signing, these instruments that you're signing, it's cookie cutter approach and everything is the same and it really isn't.

Yeah.

So if we're talking about legal instruments I think it gives a little bit more weight and makes people think about a little bit more than I want to document printed off I can fill in the blanks and it may or may not be appropriate for it and sign it.

>> Yeah well you mentioned it so I'm going to ask you to expand on that a little bit about printing things off the Internet.

Yeah, I bet you have clients that come in with a copy or tell you yeah I printed all I dirty did my will I read online.

>> What do you think of that?

Well it's a very so great question first of all because I do get those questions and I'm sure other attorneys get those questions as well.

We found this online.

We don't need that.

We've already done it.

Do you think that's OK?

Well, until your attorney has reviewed that instrument, it's difficult to express an opinion about whether it's a good thing or not a good thing.

I will also say that every person is unique what they want and what they want to get accomplished is unique.

And so each one of those instruments that you're signing should be uniquely prepared for you and because it was right for a neighbor or it worked one time doesn't necessarily mean that that's one that you're going to want to be using regularly may not be as robust as you need it to be even powers of attorney.

We talk about powers of attorney and it seems very basic that you could sign that.

Yeah, when we're talking about elder law and we're thinking about protecting assets, we're thinking about wanting to make sure that that document is robust as it can be.

I'm saying document that instrument as robust as it can be.

>> We want to make sure that certain language is in there so that if someone needs to talk to SSA Medicaid they can talk to them on your behalf if we need to transfer funds were permitted to transfer funds by that by that instrument.

So something as simple as your power of attorney that's very standard.

It isn't necessarily standard health care representative designations.

So you're appointing someone that can make decisions on your health care if you become incompetent or incapacitated very, very important things.

So I don't know why somebody would risk that and having those things done properly and it is true although there are pro bono services that do some of these things for clients sometimes just a little bit of money is well spent to make sure you have a very solid foundation might save you money in the long run because if it's not complete or in your words robust I want to talk about like you you might have to spend more money sorting it out legally.

>> It's obviously it's not necessarily even the money.

It's just what is it that you're wanting to get accomplished?

Well, maybe it does this instrument allow me to get accomplished what I need to get accomplished, what I want to get accomplished.

>> So I think of that even beyond those the powers of attorney health care, representative designations, hipple waivers, wills and trusts people will again like you're saying, Sandy , find those instruments online, pull it out of a book and it is not it is frequent when we review those that we see that it wasn't signed properly.

>> We didn't have the witnesses that we needed.

>> Language isn't properly drafted so is doing a disservice to the client for them not to have something put together that's solid incorrect and this is your life savings.

This is your creating a guardianship for your minor children, possibly creating a trust for your minor children, passing wealth to your children, to your grandchildren, whatever it may be.

So sometimes to have a professional review those documents with you is good advice and it's appropriate.

I know of course this is the industry that I'm in along with other elder law attorneys in estate planning attorneys.

>> But we would want them to have appropriate things in place and we want them to be able to achieve what they want to achieve if we're avoiding probate or avoiding a taxable event, we want all of that to be in those documents somebody aligned that top baker situation wants to OK, I need to buy health insurance and life insurance.

>> I'm going to go to a kiosk in the mall.

Yeah, that's a good analogy.

Right.

So you would want to speak with your agent.

>> You would want to make sure that you're appropriately appropriately insured.

You have the appropriate coverage if it's for your home or for your health insurance, whatever it may be you would want that you would seek out the advice of a professional.

>> So I would enforce I would encourage your listeners to seek counsel of their choice and get those things in place.

>> OK, you said you use the word robots.

>> Do you want to make sure that your instruments or documents are robust?

>> I mean oh of course not.

But I would never do that.

>> Well, when I say robust what I mean is that it really is appropriate for you and what you want to get accomplished.

>> It's well written, it's sinked complete has everything in it and you're thinking it through.

For example if we have a special needs event in the family meaning when someone is inheriting the money, if they're a special needs person at that time so a grandchild could be special needs, it could be that someone's had an accident and they become special needs at some point in the future.

A loved one has a dementia if they're inheriting directly that could affect the benefits that they're receiving at that time.

>> So if we put special needs language in our wills, in our trusts, we're able to up for them still to inherit the money but for it to be protected and they don't lose any of the benefits that they're receiving.

So when we talk about them being robust, it isn't as simple as one page that says this goes to this person that yes to that person there is much more language that that we use in instruments to make sure they are robust.

>> I say now that drafted properly of course and we're achieving what they want to achieve.

Right.

And a healthy conversation with your legal professional is going to help you really ferret out what's appropriate and and because you might not think of some of the things you're saying it isn't what you know, it's what you don't know and you're having that conversation and hopefully the professional that you're working with is giving you guidance and making some suggestions and what if this then than that so for an individual doing they're estate planning are working on an elder law matter, it wouldn't be uncommon to have more than one appointment with your you know, with the attorney that you're working with.

>> So you shouldn't be intimidated to have that conversation.

I think typically counsel in this area is very interested in engaging with their clients.

>> It's they they have an affection, an affinity for this type of work and they'll spend time with you and for you to have a good experience with it.

>> And generally this type of work is is flat fee based so typically if you're lucky so if the client was speaking to the attorney, you know, two times or three times for it to be finalized, they're not necessarily being charged on an hourly basis for all of that work.

It's typically there's a flat fee that's involved with it in per instrument or per document for what could be a set of instruments.

>> But my point is sometimes people have a concern that if I speak to the attorney I'm going to be every time I call them I'm going to be charged and there are types of matters that attorneys are representing and in which their work is charged in that way and it's appropriate but typically in estate planning and elder law matters, it isn't necessarily charged on an hourly basis generally in our industry it's a flat fee.

>> It's quoted for that type of work.

So that should give your listeners comfort that they know if I'm no surprises, no surprises even if I meet with my attorney two times or three times, however long it takes they shouldn't be worrying.

>> Oh, every time I'm speaking with them I'm getting charged.

Yeah.

Tick, tick, tick dollar signs but it may be different from one attorney to another so if somebody tells you I'm saying just this man generally in this industry it's typically flat fee for that type of oh but you are right OK other there are attorneys that may charge on an hourly basis for that type of work.

But I think generally and this is very broadly speaking the listeners if they were speaking with folks in this area they should expect to see happies.

>> OK, let's talk about this area then and this timing does it change Brian?

>> I mean or do you guys get together every year and say oh look, we all go up three percent or disinflation make any difference whatsoever?

>> I'm not having a discussion about how much attorneys would be charging.

I'm just saying generally that's what clients should expect.

OK, if they're speaking with counsel so no attorneys don't speak to one another about, you know, how things are being charged, quality of the work and yeah.

But you mentioned the point about getting together.

I thought you were going to be talking about continuing legal aid.

So yes, we attorneys have continuing legal education in there and our field of interest.

>> How does that work?

Do you go somewhere or sometimes it's in person and sometimes it's remote local or national conventions or both?

>> Yeah.

Tomorrow I happen to be in a Cali for two days in a row and it is all remote but I in August was at a club where it was all in-person so it depends which you know what you're selecting.

>> I think with the advancements of the Internet you're seeing more remote and it's more a standard thing that it was at one time at one time everything was in person and that's different state by state each state would be different what they do and don't permit for remote education.

Sometimes they'll have a mix of some remote some in-person.

Are there state organizations for attorneys?

There are state organizations do they organize these?

>> They do and it has to be approved by the state.

Each state has a different approval process each state has different requirements.

So Ohio let's say may have a substance abuse class that you need to go to every two years but Indiana may not have that so it is different state by state.

>> Florida has a technology class you have to attend so it's different.

Sure, every state well a lot of professions might require you to update or redo your certification for something.

>> I don't know, maybe after redo CPR every year or you have to do something to renew your license.

>> Do you guys have to do a license renewal?

But it is those number of classes within a three year period you have to have a certain number of hours and turn those into this to each state in which you're paid.

>> Well, that's comforting to know.

I will say Michigan interestingly enough, Michigan does not require ongoing continuing legal education.

>> Mine really some states do some states don't.

>> Most do.

I would say majority do you I'm not going to Michigan for an attorney that's very interesting.

>> Very interesting.

OK, let's talk about some other terminology you've mentioned a little bit of it but probate explain what it is and in do we want to do probate or we want to avoid probate?

>> Well, I do think that people will frequently say I want to avoid probate.

Well, probate is the process whereby you have a last will and testament.

You file it with a court or if you didn't prepare a will and you don't have beneficiaries on your assets.

>> We are open in a state with the court.

So probate is putting the state in a state with the court.

Oh that's OK.

That's the process whereby you follow your will or if you passed without will we go through something called intestate succession or the state statutes indicate where the funds go.

>> So probate is the process where you file something you open the estate normally there's an advertize in the newspaper saying the person's passed away.

So if you have claims to be made if you are someone that says this person passed away and they owed me money, I can file a claim in that estate for me to be paid out of the estate funds Bryan.

>> Yeah, just to interrupt for a moment, is that required to put something in the paper or not?

>> And I both know it's required.

So there are certain instances where you if you're going through probate to realize there are many ways to pass assets when you pass at the time of your death.

But if we're going through probate, the answer is yes, you have to publish the newspaper if you're circumventing probate because you have a beneficiary designation or you've done something transfer on death deed or maybe you've used a trust in those instances for those assets you may not need to publish in the newspaper indicating that the person has passed.

There are time periods within which folks that are owed money have the ability to open an estate for you in order for them to be reimbursed.

That is possible.

There are deadlines on doing that of an estate isn't opened in a certain certain time frames based upon different types of creditors I'm getting to OK now but if the estate isn't open during that time and they lose the right to be able to file a claim in the estate but yes, if we open an estate we go through the probate process where we request the court to appoint a personal representative or advertise in the newspaper for opening that estate and that instance.

>> Yes, we do have to file something in the newspaper.

Well, I'm going to ask another question.

>> OK, I'm ready.

OK, so you always are you always take questions I give you or callers and you can call still here for the next ten minutes or so 960 nine twenty seven twenty if you have a question for Brian OK so required to put something in the paper in case you have somebody that you owed money to and they can you know send their invoice in.

>> What about if you just die I mean without without a will do you do you know with or without do you do all obituaries have to be in the paper.

>> It's not an obituary so I'm not indignance I'm not referencing an obituary.

I'm conferencing.

It's a legal notice that someone has passed.

>> I know and the state decides that besides they need it.

>> You don't have to put an obituary in the paper.

Oh OK.

I've heard about that.

I'm not aware of a requirement that you need to OK put an obituary in the paper.

>> I think I heard that like you're charged by the line or something like that could be that maybe for your next speaker another topic another day I may be a funeral director.

>> I'm just I'm just curious because so many things have changed in society and with the Internet and I'm always wondering like these creditors that you're publishing your your passing to what if they never read the paper, how they were going to know?

>> Well, the not everybody gets reads the papers today anymore.

That's true.

But generally so your state statute will indicate in every state in which a probate matter is being opened, the state statute would indicate how you publish notice to the world typically that's in a newspaper and it's a local circulation.

The paper that it's generally circulated in that community where you passed.

>> But yeah, I know I'm publishing in the newspaper there and it's unfortunately the newspapers is not as popular as it once was.

>> I know circulation is down but that's still our process and procedure.

I mean somebody can't come back to you and say well I didn't know we don't get the papers so you can't well when you when you open an estate and you go through probate you actually with a court you're filing proof that you filed a publish in the paper so you couldn't close the estate without having verification filed with the court that in fact there was publication the newspaper and it was done properly even in the notice we when we referenced the state statute we reference that in the notice itself.

>> So if you read the newspaper you're going to find those notices in there and one of the reasons people use trusts actually is so that they don't have to publish in the newspaper.

You don't if you have a probate process.

Well, let's talk about sending it's properly funded when I say a trust is funded meaning I put real estate in the trust, I put a brokerage account into the trust my checking account my savings account is in the trust.

So assuming that trust is properly funded we have assets in it.

Yes, Whatever's in that trust it goes to your ultimate beneficiaries.

So whoever it is that you've indicated the time of your passing who receives the wealth, that's where the money goes.

So your trustee a trustee is like a manager of of that trust the assets in the name of that trust.

So it's the manager's duty, the trustees duty to distribute it to grandkid's charity.

>> Remember your document, your instrument instrument, instrument.

>> Thank you.

OK, you do not forget that because the instrument is going to be very robust.

OK so we have to trust and again you have you know you have all those specific things what you want.

>> What if you don't have something in a trust and you don't have a trustee who handles well finances.

>> So this goes back to if you have a will we open state your personal representative your executor is the one that handles that.

OK, if you don't if you didn't do anything, if you didn't prepare well we go by state statute.

A state statute indicates where the money goes so it would go to some of your spouse some it depends if it's first for every state it yes, every state does have different intestate succession statutes.

>> However, yes, I should say they are different generally it's staying within the family.

>> But if you're not an Indiana resident, you're in Ohio resident.

>> It's going to be a different process if you're a Florida residents going to be a different process if you're Illinois residents going to be a different process?

Well, everything is just so different nowadays anyway.

>> I mean as compared to twenty five fifty years ago now there are more blended families and it just is more complicated.

>> Sure.

We have a question for you Brian.

Well what are the conditions in which you would need a trust?

>> Good question and that's coming in from Dorothy.

Thank you, Dorian.

>> Well I think what's important, Dorothy is to know what it is that you want to get accomplished in trust as a giant category.

>> Don't be overwhelmed by the word trust.

Sometimes people are intimidated by that.

A trust is just a contract.

You've signed lots of contracts in your lifetime inside that contract you've generally got three players.

You've got the settler grantor that's the person made the trust.

You have a trustee.

That's who's the person is managing the assets in that trust and beneficiary who can benefit enjoy the money in that trust.

So depending upon what you want to get accomplished if you're just worried about avoiding probate at the time of your passing, you don't want the attorney fees that are associated with going through probate.

You want to speed up the process of getting those assets out.

You wanted to keep it private.

You may use something called a living trust that's very common if we are looking at a trust to protect assets during our lifetime from liability if their special needs person in your family if you want to stretch a grandchild getting money over time or child getting the money over the over time we would use a trust if we could even specify they get so much you can do when they're eighteen so much when you dreamed it up and it can be drafted so you can do trusts for pets, you can do trusts or charitable entities.

You could do create a trust to benefit PBS you could do like that and some people do do that.

>> They do do that.

Yeah which is for sure Terfel from what I understand from legal conversations we've had Brian, I understand that a beneficiary if you've named a beneficiary on Iara bank account or anything that is overrides anything you put in the will it does so if so, back to what we were talking about before.

Let's say that you were charitably inclined and you wanted to remember PBS and you said PBS is going to get thirty five percent of my estate and you're thinking thirty five percent of my estate is going to go to PBS .

That's what I wanted to do.

I'm charitably inclined then you have an account at the bank and on that account you've indicated this account goes to my oldest child because I know that my oldest child will give the money to siblings, will give the money to PBS whatever it may be.

>> That beneficiary designation actually gives all the money to the oldest child that can do with it whatever they want to.

They may end up giving it to PBS .

They may end up giving it to the other siblings if that's what you want.

>> But they may not do that and but it overrides it.

Well, it's anything you've written in your will overrides anything you've written in your trust.

So beneficiary designations seem very simple but actually they're very powerful and you want to make sure that the beneficiary designation is appropriate and it addresses those things that you have in your well addresses those things that you have in your trust sometimes on an asset we may indicate that the estate is the beneficiary or the trust is the beneficiary.

>> So if we have qualified money like IRAs for one case, sometimes the trust is actually the beneficiary to receive that money and and for it to go out to children charities, religious organizations etc.. >> OK, OK.

>> Would you speak to revokable and revokable as the name implies it?

You can change it any time it's like Pudi I write it today I want to change it tomorrow I can change tomorrow.

Irrevocable is permanent in nature generally those cannot be modified without a certain events happening but you should think generally revokable I can change it's completely accessible to me irrevocable set in stone can't be changed.

>> It's more permanent in nature trust could be start is revokable and end up converting to irrevocable in events where if someone were to become incompetent it could convert at time of passing a revokable trust would be irrevocable at that time and pay out to whoever you've indicated.

>> How would you recommend or what would you recommend in terms of like going over all your documents how frequently every year?

>> Yeah, five to seven years I think and it's interesting when you review your documents you may say Oh I forgot we have done this or there's a change in someone's health in your family, your children have moved been married.

>> So I say every five to seven years it just keeps change.

It does change and that's why Brian keeps coming back to give it follow the updates legally.

>> Brian Nugent, thank you.

Thank you so much.

>> I always learn things from him when he comes and I try to remember him for the next time.

Thank you all for watching tonight.

>> Dorothy, thank you so much for your phone call this evening and for watching us here on LIFE Ahead.

We'll see you all back here next Wednesday night at seven thirty.

>> Good night Nugen Law; focusing on estate planning and elder care law, emphasizing independence and quality of life.

Serving Indiana, Ohio, Michigan, and Florida.

More information at NugenLaw.com.