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>> Good evening and welcome to PBS Fort Wayne and to our show like the hit.

I'm Sandy Thomson, the host of the show but the real stars are sitting over here and I'm going to introduce you to them in just a moment.

Our topic this evening.

Well, I think you'll find it very interesting.

>> We're going to talk about myths and misperceptions of elder law and things that have to be associated with elder elder situations and elder legal things that you might need to know.

Now this is really your show, by the way.

So please give us a call if you have any questions for our guests (969) 27.

And if you do live out of the two six zero area code , just put a one eight eight in front of that you can come right to us toll free.

>> OK, let's start by meeting our guests this evening.

First of all, it really doesn't need an introduction to you if you're a regular viewer of life ahead and that's Troicki for Troy.

>> Welcome back to LIFE Ahead.

Thank you very much.

It's always so much fun to spend time with you.

>> Good and thank you.

And we have the greatest viewers out here so I think they're going to enjoy you as well and get some good information.

>> Will Stockdale is here as well.

Are you an elder law attorney specifically or is that just one of the areas that you work with?

>> I primarily focus on elder law saying yes, OK, we'll Stockdale spent three years at Schofield Barracks, Hawaii in the United States Army, been a practicing attorney and elder law for about two years.

>> Long time watcher, first time guest.

Thanks for having me.

Thanks for your service to both military and legal.

>> OK, well between the two of them we have a lot of experience here to share with you and information.

So if you have any questions please give us a call.

This is your opportunity to get some legal questions answered.

>> OK, myths and misperceptions that's a pretty broad category.

>> What do you think, Troy?

We'll start with you are some the if you had to name two or three major misperceptions or myths about estate planning or elder law.

>> Yeah, one of the big misperceptions that I hear all the time is if I have a will I don't need to go through probate.

Probate is a process by which your stuff is distributed after you pass away and for some reason people seem to think that if you have a will you don't have to go through that process.

>> All right.

Explain that and then I want you to jump in here with him.

>> What is the truth there?

Well, if you have when a person passes away, the will does not determine whether they have to go through probate.

>> It would be the amount of assets that they have, the amount not what type of assets.

Right.

Is that correct?

Yes.

If the net if their net state assets are over one hundred thousand dollars whether they have a will or not then they need to go through probate.

>> OK, and it is this hundred thousand dollars include not just money in the bank but in a savings.

Does that include like real estate property so there are probate assets and non probate assets so probate assets are things that are in your individual name OK that don't have a designated beneficiary so things like real estate if it's owned by a husband and wife, automatic becomes the property of the surviving spouse upon that person's passing things that have beneficiary designations like IRAs, 401.

KS life insurance those are not probate assets but bank accounts oftentimes probate assets, real estate that's owned by an individual.

Those are probate assets and if you don't get them out of your probate estate and you end up with more than one hundred thousand where the probate assets you will have to go through formal court administration of your will.

>> OK, I have to share this story with these gentlemen.

If you've watched this very often, you know that periodically we have a probate judge here unlike the head and he always says that it's so interesting because the things that come before probate he said the squabbles among the siblings or the people that are involved in that that estate are never over the big things.

>> They're never over the late college or the IRA said they're there over little things like who gets Gramma's said of China from Niagara Falls that she bought in nineteen forty two you know something like that.

>> So the more you that you have designated the better.

>> OK, let's talk about power of attorney.

That's one of the things that I know you attorneys always say is such a good idea.

>> Why is that and what is that?

Well a power of attorney allows you to appoint someone else that you trust to manage your financial affairs in the event that you become incapacitated.

And I personally think that it's more important than Will even because it has a direct impact on your quality of life while you're alive.

>> The power of attorney only exists during the lifetime of that person.

That's correct.

And then the estate taking care of the estate happens after after the passing right in the estate just deals with stuff.

>> Exactly.

And power of attorney deals with like even daily finances and anything that has to do with that.

>> Absolutely investments paying bills, you know generally managing funds and taking care of business.

>> You want someone you can really trust to take care of that it may or may not be a family member.

>> Is that the truth?

What do you say?

Most of the time we see family members but sometimes there just aren't any family members available and we have friends and other people who will fill in in some cases we even have people will have a business that they will serve is what we call the attorney in fact under the power of attorney to be that person.

>> So there is there are businesses that will handle those situations.

OK, that's good to know because not everybody especially with the world being so transient and everybody move in every different direction, you don't always have family around like in the old days Detroit what happens if you don't have the will?

>> So if you don't have a will there are statutes that have been passed by the Indiana legislature that control what happens to your property when you pass away that may or may not be what you want to happen with your property after your death.

Typically if we're talking about you know, a first marriage where they have all the same children, the surviving spouse gets everything and when there is no survivor everything split equally among the children.

But these statutes become more problematic when we have blended families you know, second marriages, different children and you really don't want to leave what happens with your final affairs up to whether you pass away first or your spouse?

I mean you want to have a plan in place where no matter what happens it's clear what's going to happen with your property.

>> So then it doesn't become a state situation or a state decision, right.

>> Well, so that's one of the big myths that we deal with in estate planning is that people think that if they don't do anything, if they don't have a will, then a lot of their property is going to end up going to the state of Indiana or to the federal government.

That's just not the case for for example, I have I have one that I saw recently a state in Fulton County where it was a woman who had very little in the way of assets.

She passed away.

She owned some some real estate that was worth about ten thousand dollars and she had no friends, no family, no anybody.

>> So that's one case where the judge did order that any property she had left over at her passing would be first used to pay the administrative expenses .

So the funeral home got paid.

The lawyer who administered the estate got paid and then everything else which didn't end up being anything would have added to the state of Indiana I that's very uncommon very seldom they do a great job of making sure that the state is kind of the taker of last resort.

They will go out and look for family members far and wide to the seventh generation trying to find somebody that can claim that property.

>> I've heard attorneys say before when they do these kinds of searches that people say well I don't really have any family.

Maybe you don't have any family that you communicate with and run around with or socialize with.

>> But somewhere even if you go back several generations there's somebody out there.

>> So it would be a delightful surprise if you got a phone call and said, you know, your Uncle Charles from your father's side grandparents just left you a thousand dollars but you know, you never know.

>> All right.

Let's talk about what happens in terms of power.

>> Attorney Troy, if let's say you have couples in the husband and the wife, can you just take each other's financial plans or is it better that both of them have a power of attorney?

>> Well, and I think that is another misconception that just because you're married you have the right to make decisions for your spouse.

And if that has been the case in the past, some people tell me well, my mom could just go into the bank and do business for my dad .

Times have changed a lot and they just don't allow things like that anymore.

So it is important that even if you're married that you name your spouse as power of attorney and as health care representative as well to make health care decisions.

Well, speaking of power of attorney and health care representative, the two things that attorneys always recommend that you document and have to have a legal standing on Troyes in or rather if you have the same person or should you have two different people for health care and for financial.

>> So obviously it depends that's the lawyer's favorite answer is it always depends on and it depends so much on your situation and you know, typically I would say ninety five percent of the time we have the same person in charge of the finances, the same person in charge of the health care.

But there are situations where maybe the the child that you would entrust your financial well-being to is not the same if you have, you know, a nurse or a doctor in the family, maybe you want them to have priority over making your medical decisions and you could make it.

>> Yeah.

You know, different different children and different family members are suited to different roles and responsive.

>> So those could always be different people.

They could be the same people again it depends.

All right.

>> And that's what you know just about everything in life is it?

It depends on the situation individual situation.

>> How often should I have Will reviewed?

Well, and if you ask probably one hundred attorneys you're going to get one hundred different answers but you need to have it reviewed when it needs to be reviewed.

I think so my personal opinion is you should have meet with your attorney every couple of years just to see if anything's changed and definitely if you've not had your will reviewed every five years that should be done and it's amazing how many times we have people come in and they have appointed guardians for their children and now their children are row 50 and 60 years old.

>> Yeah, they don't need guardians anymore.

>> Right, right.

Well, you mentioned how things can change well in terms reviewing your will or changing things, what are some situations like?

>> You know, I think you mentioned families change a lot.

Yeah.

So the big myth with estate planning in this regard is that, you know, once you've got your estate plan set in place that it's good to go and you never need to think about it again.

And like Troy mentioned, you know, pulling that out, reviewing every couple of years ,making sure that all those people who you've designated to handle your affairs are still the people that you would want to do so you know and it's an estate plan is not set in stone.

>> It's something that changes as things change in your life , as your children grow so many times we have clients who will come and, you know, bring in a will that's executed in nineteen eighty nineteen ninety and it's twenty twenty to twenty twenty three and certainly the people that they've designated may or may not even be alive.

>> So that's not necessarily to say that that will is not good or effective or wouldn't suit their purposes but it's something that you need to really think about and plan ahead and really you know consider before.

>> Yeah I understand that makes sense a Troy if a person passes away, do their assets automatically go to the people?

>> I'm saying plural in this case the people in there will like Troy had mentioned or like Willard mentioned.

>> Well, you know, once again going back to what will was saying earlier in the show about probate versus non probate assets.

Sure there are some things that will automatically go to the beneficiary, those things that do need to go through administration of the will people don't receive those right away because those assets are usually subject to creditor claims and costs of the administration in the administration of the estate.

>> I'm curious how a creditor works.

Well, maybe you can help us out here.

Is there a period of time if someone passes away that people that they owe money to has claim that?

>> How does that all work?

Well, Sandy , if somebody passes away and they have more than a hundred thousand dollars worth of probate assets, what will happen is that there will has to go through formal administration with the court and what that typically means is you hire an attorney, they prepare pleadings and file with the court.

They file the will.

Once that's on file, then the court will appoint the personal representative typically that you have nominated in your will but not always because obviously the court has discretion to end a responsibility frankly to appoint somebody who's qualified and who will do a good job for you.

>> So once the personal representative is appointed they're in charge of inventorying the assets, getting a list of creditors around searching through your records, seeing if they can find anybody that you may owe money to and then the estate's got to be held open.

They're going to publish notice in the newspaper that the person's passed away and then for three months creditors are going to have an opportunity to file any claims that they have against the decedent.

Finally once that process is over and all the claims that are valid get paid and all the claims are not valid, get fought over and either paid or dismissed eventually then the the personal representative can get a court order to distribute out those assets and that process can take anywhere between six months and a year if things go smoothly.

And I know Troy's had some states where they've been going on for years because things were just incredibly complicated so oh tell us about that Troy.

What makes it complicated?

Well, the things that typically make it complicated are lots of real state oh OK. Business interests, land contracts, sale of businesses on contract, things like that are all things that we have to work through and there are a lot of moving parts.

>> OK, all right.

That certainly makes sense as well.

We have a phone call by the way.

This comes in from Jean and let me see what Jane says here.

They're sending that out to me here on the teleprompter.

>> Jane is 90 year old victim of 90 year old victim of elder scam would like help recovering money from a contractor contacted the attorney and they told her she'd need to pay five thousand dollars.

Now how would an elder law attorney be different?

>> Does that make sense?

Yes, and there's a lot in that question, Jane.

I would of course I'm not your attorney and this is not legal advice for people in that situation.

I would first talk to the police and see if there's any way to pursue that criminally.

And you know, each attorney has their own rates and I would say keep looking contact the County Bar Association.

There are referral services also there may be organizations that give free or reduced legal services that might be able to help you out.

>> How would the Better Business Bureau fit into this if this was a scam?

>> Should you report it to that or can they help you with anything like that?

My I'm not an expert on the Better Business Bureau and Will can jump in at any time but my understanding is if they're a member of the Better Business Bureau it may affect their rating.

Sure.

But someone like a contractor probably is not a member of the Better Business Bureau if they're going to do something like that.

>> Have you had any experience in that so different different attorneys charge different rates and you know things with retainers to get started.

Not very many attorneys would probably be willing to take this type of a case on a contingency fee basis.

They want to make sure that they were getting paid for the work that they were doing and oftentimes that means a big retainer up front.

One place that you may start and this is not legal advice just like I said but the state attorney general's office has the responsibility to sort of root out and go after these kind of contractors with shady business practices.

>> So that might be a resource that you can take advantage of .

OK, well I hope that's helped you, Jane and thank you so much for watching like ahead here tonight let's talk about trust Troy to start with you.

>> What's the purpose of a trust and how does that enter into any myths or misperceptions about trust?

>> Yeah, well that's that's a big question and trusts are separate legal entities that can own property and they are set up by by people for various reasons.

The most typical trust that we see would be a revokable trust that that people use to transfer assets into and it's a way to avoid in some cases probate.

One of the big misconceptions I see is that people believe that trust can be wrapped up much more quickly than a will or that probate process and sometimes that's correct but other times it isn't.

There's still a lot of things that need to be done in the administration of a trust including paying off creditors and paying taxes if any are do getting real estate appraised.

>> Oh OK. OK. And again the assets may vary considerably from one person to another.

You have a few more minutes by the way if you have a question here and you need some legal advice give us a call here (969) 27 twenty let's go to you.

>> Well let's talk about long term care.

>> Are there Mr. Misperceptions about buying long term care insurance or how long term care fits into your estate planning?

>> Oh, there are so many Sandy long term care.

A lot of people think that's just the nursing home long term care can mean independent living at an apartment.

It can mean assisted living at a facility where you still do most of your own cooking, cleaning, all that kind of stuff and you just get some assistance.

It can mean skilled nursing care which is basically, you know, full time twenty four seven health care and it can mean memory care where you're in a locked unit where you can't get out because dementia obviously so that long term care means a different thing to a lot of people but you had mentioned Langbehn you had mentioned long term care insurance.

Yes.

And that was something that was great if you could have bought it in the eighties.

>> But it's been in the 1980s.

>> Not when you're in the U.S.

Thank you.

Yes, it's there.

Yeah.

We're seeing people who bought it in the nineteen eighties.

They are just making out very well and but these types of policies you just can't buy anymore anything more expensive the older you get right and if well just the market itself is drying up because people are living longer in these insurance companies didn't plan for that and so they are paying a lot more for people's health care than what they had planned on.

So in order to they don't want that to happen in the future.

>> So yeah.

So they're making the plans more expensive and harder to get.

A lot of those companies have gone out of business that had the most generous type of policies or they've gotten out of the long term care insurance underwriting.

>> I did not know that's very interesting because there were there were policies that basically you'd pay a small premium and you'd just be good to go and they would pay forever.

Now the policies that are written are typically things like they're going to be capped at a maximum daily rate that may or may not be what you actually have to pay to the facility.

>> They're going to have a lifetime benefit amount that's going to be the maximum amount that they will pay no matter how long no matter how long you are.

And the biggest problem with long term care insurance is that oftentimes if by the time you think you need it it's already prohibitively expensive, I say OK, unless you get it when you're young which some people do but not everybody has the for some people around here.

>> OK, we have another question.

This is from Archie and Archie says Can you take a name off of a trust, Troy?

>> This is going to go to you.

>> We talked about trust for a minute and how do you do that?

So you can probably help Archie on that.

Yeah, Archie, it would depend on what kind of name that you're taking off of the trust if it's a trustee there would there may be a certain process in order to do that if it's a beneficiary that you're trying to remove off of a trust that may be a whole different process and it would may depend on whether the person who created the trust is still alive and able to make those changes.

But it that language should be in the trust if it's a possibility to remove any of those parties from the trust.

So it once again it depends on on who you're removing.

>> OK, that makes sense aren't you?

Thank you so much for your question and for watching LIFE Ahead here tonight.

>> We just have a minute or two left each of you if you could maybe give me a real quick comment on own advice for people in terms of medicine misperceptions don't believe in that kind of thing.

>> Well, I'll go first hand.

So many people think that estate planning is just something that you do when you're facing retirement age.

Estate planning is something that matters when you're 18 years old, when you're 20, 30, 40, 50, 60, it comes in phases.

So when you're eighteen years old, obviously having a power of attorney, having a health care representative just in case something ever happens to you and you became incapacitated or unable to handle your own affairs as you're a young family, it's important to make sure that your spouse has the ability to handle your affairs and designate somebody who you would want to take charge for your minor children as you grow in age maybe age 40 or so you might think, you know, now's the time I need to start focusing on avoiding the hassles of probate, making sure that if I did pass away it would be an easy thing for my family to wrap up my final affairs.

And then when you're in your 60s 70s, sometimes long term care becomes a concern.

There are things that can be done with asset protection with regard to nursing homes.

So that's kind of the phases of state planning.

>> Exactly.

Well, I want to thank again our guests here this evening in hopefully you'll keep watching us here on LIFE Ahead.

I will tell you that the first Wednesday of every month we have a legal show so keep that in mind as well.

>> Troicki for thank you for coming back again.

Oh well thank you for didn't scare you away and you provided lots of information for our viewers as did you.

Well thank you so much.

>> Thank you so much for first time and hopefully not the only time.

Good night everyone.

Stay safe and stay healthy.

We'll see you next Wednesday