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

Serving Indiana, Ohio, Michigan, and Florida.

More information at NugenLaw.com.

hi.

>> I'm Sandy Thomson, the host of this show which is called Like the Head but the real star of the show is sitting here with me on the set and that is Brian Nuge and he is an attorney specializing in elder law.

If you want your LIFE Ahead regularly, you've seen it many, many times here on our set.

PBS sponsors this show obviously every Wednesday night at seven thirty we have different topics, different guests.

But again some of the regulars like Brian bring a nice element here because our viewers get to know them.

And I hope that you feel comfortable with Brian because this is really your show and I want you to ask him questions the phone numbers on the bottom of the screen there and you can give us a call here through the show at that number and Brian will answer your questions won't Brian you do that and certainly I sure will.

>> Thank you.

And Brian loves to if you stay on the phone and talk to us live because that way if he has a question back to you you're right there on the phone.

But if you're not comfortable doing that, that's OK. We do have a phone operator in the control room that will take your question and type it up and send it out to me here on the teleprompter and I'll ask you for them.

>> Yes, of course.

OK. All right.

Brian is going to be talking tonight about probate specifically if we're going to narrow law down here a little bit.

>> But if people have other legal questions about elder law ,please give us a call here.

>> The last two times you've been on we're talking about terms like legal terms.

>> Yes, that's right.

A good memory.

We spoke about different terms and things may be the audience may be hearing me speak about questions you may be asking me about and I want to make sure that everybody in the audience understood some of those basic terms, one of those being probate but some other issues as well.

So I think it's great for the audience.

It's listening to be educated about elder law, estate planning, et cetera.

And so hopefully the terms that we defined over the last few programs will help them as they're looking for advice and information relationship to elder law and estate planning for their own personal needs.

>> And I always learn something new from you.

>> In fact, I think it was the last time you were on you kept talking about instruments, instruments and thinking.

That's right was done music ghostwrote and then he explained that it's a duck so you might see a document.

>> Yeah, that's right.

So yeah, legally you would call that instrument document written instrument.

>> That's right yeah.

Instruments so they're synonymous you know when I learned something like that new from you I try to work it into conversations with other people and act like I knew what I was talking about.

>> Well OK let's talk about probate again and give us a call here (969) 27 twenty with your questions.

>> All right.

Let's start with definitions.

What is probate?

So probate is the process whereby when someone passes away we take their will, their last will and testament and we go to court and that will is then filed with the court and the once that's filed and the court issues something called letters testamentary if we have a will and appoint someone to serve as a personal representative and that personal representative then is able to get into the assets of the deceased party is able to determine what debts are out there.

So gather those assets, figure out what debts exist and then there's a process whereby we're satisfying those debts that are appropriately paid and distributing assets in keeping with the individual's estate planning assuming they had a will if they didn't have a will we use something called intestate succession.

>> But you have to define that.

I'm not sure what you're intestate.

Thank you.

So if if someone passes and they didn't prepare a will they didn't take the suggestions I'm making here on PBS to reach out to their attorney and have a meal prepared if you pass without a will you have something called intestate secession where the state in which you're living has a code site that determines where your money goes based upon if you're married not married children, not children but then probate.

>> So back to that point once that we open in a state there's a process whereby we're filing in the newspaper and letting the world know that this individual has passed away and if you believe that they owed you money or there's an outstanding debt that's to be paid, we're going to advertise in the newspaper here in Indiana.

It's a period of 90 days where folks have an opportunity to file a claim in the estate and then depending upon whether or not the estate is supervisor or unsupervised supervised means, the court is approving everything before the actions or have taken place may take place unsupervised is where we don't need to necessarily consult the court before every step is taken.

That doesn't mean the court isn't aware of what's going on.

There's a process whereby we're reporting to the court as the probate matter is proceeding especially at the beginning at the very end that probate matter.

Oftentimes people will ask if you're in the probate process, how long does that take?

>> Well, it could take as short as as I suppose technically three months unlikely would be accomplished in three months.

But I'm seeing maybe a year give or take a little more a little less sometimes if it's pmore complicated a state or if there's litigation in the estate we may drag on beyond the year and then of course there's expense involved in that you would be providing payment for the estate would be providing payment for the attorney that's representing the estate.

The personal representative or representatives and the estate.

They would also be entitled to have some type of a remuneration for the work that they've performed.

>> OK, several follow up questions here.

The person would represent Dave are often just called executor the PR person representative executor.

>> OK, all the same that's something that while you're still alive I mean if if you plan ahead and you're doing a will or a living will or taken care of a lot of documents and naming your power of attorney and your health care representative that takes care of you physically and financially while you're still alive.

>> But once you pass away then it's the personal representative who handles the finances you've got do you name them in a well?

>> Yes.

So if you have someone that you trust or an entity like a trust department that may appoint if you have somebody that you have confidence in that would have the wherewithal the time, the acumen to make sure things are handled in a timely manner you and your will you would appoint someone to serve as your personal representative or executor.

>> Same thing if you haven't appointed a personal representative, you haven't appointd an executor.

You didn't do that last will and testament in that instance you and a person that would be appropriately appointed would that who normally has some type of an interest in the estate the court would appoint them to serve on your behalf so it could be a family member that would serve it could be somebody actually that believes they're owed money and they don't see an estate being opened.

They can force the estate to be open and request that they be appointed personal representative.

>> There is a code in every state that indicates who's kind of a preferred person to be serving as personal representative or executor.

If you didn't take that initiative in your during your lifetime to to appoint someone to serve on your behalf.

>> So then the probate judge would look at bio's or whatever of the people that recommend it or on that list do they decide which person they're going to choose?

>> So there's a petition that's filed and when by whom but whoever wants to serve as a person right.

OK, so they would prepare a petition and they would request the court please appoint me to serve as personal representative.

>> And what's also important to know is that that petition needs to be served on other interested parties.

So it could be other folks in the family, it could be other beneficiaries that you've designate within your last will and testament or potential beneficiaries through estate intestate succession.

They would receive a notice of that and they have the opportunity to say yes, this person this person is appropriate to serve or no I object and then they would have the responsibility to indicate why it is that they object and the court then would look at those objections, look at the petition and make a determination as to whether or not that person should be appointed if they are living outside of the state of Indiana, they would need to serve with a resident of the state of Indiana or post a bond to be able to serve and the notion of the bond if you're a non resident I'm saying Indiana could be other states if you're a non resident of that state.

The purpose of that bond is that you couldn't abscond with the state funds so I couldn't run away with cash.

I couldn't run away with personal property.

I couldn't run away with money from a bank account etc.

So a bond would be posted that would that's approved by the court.

The court determines is an appropriate amount for the assets in that estate that need to be bonded and then post a bond pay for that bond and then you could serve even if you weren't a resident of Indiana.

>> OK, all right.

That cleared that up.

>> My kids just called in.

Hi Mike and thank you so much for watching us here in LIFE Ahead.

>> What is your question tonight for Brian?

Well, I first of all I love your programs.

>> Very informative.

Thank you so much.

I also enjoy our series Looking Looking for forward.

I just told him that this or not but it's a bright summer day so I need to go shop where he shops my my question is why why should I lived in Indianapolis thirty five years and about twenty years ago we had our estate plan done by a local attorney from there.

Since then we now live in Portland.

We also have a condo in Florida and I wanted to update our state plan and I'm wondering whether I need to go back to the Indianapolis law firm or whether I can come to Brian and have it updated here.

>> OK, all right.

So it doesn't live in Indianapolis.

He's very lucky as a condo in Florida.

Yeah.

So to see a couple of things the first thing that I see is that of course the attorney that you're working with should be able to review that estate plan that was in place.

So if you had one prepared in Indianapolis and you have a local attorney review it, they would do so well, he doesn't have to go back to Indiana, doesn't need to go back to what I would say though is I would be surprised if you wanted to change a will if the attorney that you're working with would be willing to write a codicil or an attachment to the will that someone else is prepared.

So sometimes an attorney will be requested.

I just need to make a little change this will I want to use that original well and make a little change.

>> I don't find it very common that an attorney will say I'm going to add on to somebody else's work most likely if you're wanting to make a change to it, assuming it needs to be changed, it may not need to be changed.

>> I've reviewed estate plans.

Other attorneys have reviewed estate plans and it's appropriate so no change needs to be made and you should feel good about that.

>> But if there is a change that you want to make, the attorney says is this still what you want to do?

You want to remember this person, that person, etc.

You say no, I want to make a change.

The attorney most likely will want to rewrite your estate plan so that they're confident and what it says and it's it's their language and so forth.

But you brought up another interesting point in regard to Florida.

So what you need to know is that if you own property in more in one state and you pass and you don't use something a beneficiary designation deed, you don't use a trust or something like that, you would need to go through probate in both states.

>> You have to go through probate in Indiana, pay for that expense in that length of time and go through probate in the second state Florida in this instance.

So Mike, if you have a condo in Florida and you have property in Indiana, you should seriously consider using maybe something like a trust that allows you to avoid probate.

Frankly in both Indiana and in Florida there are deeds that you can do both in Indiana and Florida.

In Florida they're called Lady Bird Deeds.

In Indiana they're called transfer UNDEF Deeds.

But you could use those we don't always use those.

I am a little cautious to recommend that yes we can get probate by using those deeds.

But I'd like to give folks the example if you were let's say you have three children and you convey that property to them at the time of your passing using one of those types of deeds that just explained now your children own that property together.

So if one says I want to sell to say I don't want to sell, we've got some conflict there also how when those deeds are written if you're saying if one of my children passes and their interest goes down to their children now you have two kids that are owning property with their nieces or nephews.

>> So if nieces and nephews don't have any money but they want to go down a party in Florida your breathing a bit of a situation for the other two children.

So while those those beneficiary designation deeds can be very useful in certain circumstances and you will find attorneys using them in certain circumstances, it isn't a blanket way of avoiding probate that we should use every single time.

You should explore the pros and cons of those very closely but so to swing back to your question might have gone a little off track to swing back to your question.

Yes, an attorney licensed in Indiana would be able to review your estate plan by an attorney that prepared that in Indianapolis.

>> No issue whatsoever.

OK, all right.

Good explanation and Mike, I hope that's helped you certainly a lot of information there because you have that unique situation in life changes in 20 years and he's probably bought the condo in the last twenty years.

>> Maybe you have different family now.

>> A lot of people do have those kind of changes.

Blended families are about knew more children or grandchildren, that kind of thing.

>> OK, all right.

We're going to keep talking here and and we're going to get Jim your call here in just a few minutes.

Meanwhile, we talked about the personal representative.

>> Let's see what else was I going to ask about probate?

If you've named somebody as your personal representative, what if you change your mind later or you start to figure out that personal representative is taking advantage of situations and maybe not as honest as you thought they were?

>> Can you change well during your lifetime if that's if during your lifetime can you change your estate plan at any point?

Yes, you may know so long as you're competent and understand what you're doing and there's no issue with your changing your estate plan at any point if if you're looking to change the appointment of the personal representative after the estate has been opened after that executor has been appointed that has been appointed by the court and that is instant someone is going to have to petition the court and ask for them to be removed and explain to the court why it is that they should be removed.

Maybe they're not gathering all of those assets appropriately.

Maybe they're delaying the entire process.

Maybe they're challenging whether or not you should receive the funds and you believe you should be receiving the funds and there's no issue there in those instances.

>> Yes.

And interested party could petition the court and with reason could say I want this individual to be removed.

>> But it wouldn't just be because I don't like my sister.

I don't like my brother.

I never like my aunt.

She's cheating me.

If the aunt can demonstrate that she's not cheating you, she's doing everything appropriately and there's a reason for the delay, then the court will most likely say nope, I'm going to leave in place this personal representative is deceased.

>> Originally appointed courts generally want to recognize what the deceased party was was wanting in their estate plan.

They want to respect the individual that you appointed but if that person goes sideways right.

If that person is making some very poor decisions or taking an inordinately long period of time within which to settle that estate, the court may very well set them aside or appoint someone else.

>> OK, it's just so complicated.

Thank goodness there are people that do know the answers.

>> Thank you for those answers, Brian.

Jim needs some counsel here as well.

Brian Jim says Can you use the Miller Trust to make the power of attorney and Medicaid in calculating the pension?

>> I'm not sure.

So Miller Trust is here.

OK, so let's talk about first the military.

>> So the Miller Trust is used when we're applying for Medicaid if your income is over a certain threshold, once you're if your income is over a certain threshold, you're not eligible for Medicaid.

So Indiana like other state not every state but Indiana says we can use something called a qualified income trust also called a Miller Trust those trusts your income, Social Security pension, whatever it may be comes into your checking account.

It goes from your checking account and this Miller Trust or qualified income Trust checking account and from there we use those monies to pay for your medical care and when you're using that Miller trust that qualified income trust Medicaid says OK, we're going to ignore the fact that your income is too high and then you'll be able to get those Medicaid benefits.

>> Did I say Medicare?

>> I feel like I said Medicare.

I intended to say Medicaid.

I know it's so confusing so completely different programs.

>> Right.

So Medicaid will ignore your income if it really is too high when you use those Miller trusts the consequences.

It's not a consequence.

The idea is that if money was going into that Miller Trust during your lifetime when you were receiving Medicaid benefits and you pass away and there's still money left and that that Miller trust the the money that's left over is then reimbursed to the state to pay them for any services that they provided on your behalf through Medicaid.

So if you have to and in your trust at the time of your passing and Medicaid used a thousand dollars for your care ,you owe the state a thousand dollars than the remaining thousand dollars can go to whomever it is that you are that you've designated as the beneficiary of that Miller Trust.

>> But if there's two thousand dollars in your Miller Trust at the time that you died and the state paid fifty thousand dollars for your care then all two thousand dollars go to this goes to the state and the remaining amount assuming there's no other estate to gather the money from to reimburse the state it doesn't have to be repaid.

>> But going on with your question, Jim, to make the power of attorney Medicaid is calculating the pension.

I'm not sure that I understand that question.

Pension if you're asking do we shelter we don't shelter your income but we would move your income from your checking account where it initially lands into that Miller Trust.

Yes, income goes first into your checking account savings account where you normally collect it.

It comes out of that.

It pours over into that Miller Trust Qualified Income Trust and then we use that money to satisfy a portion of your medical expenses and if money remains there when you have passed it goes back to the state to reimburse them for money they've spent on your behalf.

I hope I've answered your question, Jim.

>> If not Jim Collins let on it again.

OK, Brian, here's a question we've talked a little bit about and you mentioned the transfer on death.

Yes.

I know the legal abbreviation for this Todd.

Yeah, OK.

So well a transfer on death or beneficiaries what are the pros and cons of those so I when let's say not only with real estate but if we have a checking account, a savings account, a brokerage account, an IRA you can designate beneficiaries on any of those accounts and it can work beautifully and it does work beautifully in a very for the most part.

But in your estate planning if you're saying I want money to go to my children but I don't want my kids to receive the money until they're maybe age twenty five age thirty five or beyond or I only want the money to be used for certain purposes or I want to use the money for my children during their lifetime and then I wanted to go to my grandchildren so any of those bells and whistles that you want to add on those special controls that you want to add on you can't accomplish those with a beneficiary designation alone.

So if I'm saying I want my 401k at work to go to my spouse, if my spouse is living, if my spouse is deceased it then goes to my children and my children are minors, that money would be distributed for the benefit of your children when they're minors and then 18 they get the money.

>> So there are times I like to use transfer on death Dede's I like to have accounts with a transfer on death beneficiary designation.

So Todd body pod payable on death beneficiary designation.

Yes those are oftentimes used but you need to make sure you understand that if you have a will or you have a trust and you've also done a Todd Pod beneficiary designation it skips your will.

It skips your trust, takes precedence, takes precedence.

>> So you have to be very careful about when you use those and how you use them and make sure that you really are accomplishing what you want to get accomplished.

>> I especially like those if we have a single beneficiary in the estate and that beneficiary is a mature person so we're not concerned about their getting the money early and maybe if that person is predeceased it goes to their children and their children are of an age where I'm not so worried about them getting it.

>> I'm very comfortable using that beneficiary designation transfer on death designation but you just have to be careful about it and make sure you're aware of the pros and cons on that.

>> What is the difference between transfer on death and payable on the Todd Synonomous?

>> So initially tonight we talked about deeds so the deeds in Indiana are called transfer on death deeds.

Oh but sometimes if you're at a bank the bank will say this is a Todd account pod account beneficiary designation account for in those instances at a bank at a brokerage house with a financial advisor Todd poddy beneficiary designation all the same thing.

But for Deeds in Indiana they're called transfer on death deeds.

They're not called beneficiary designation deeds.

>> They're not called payable on death deeds are called transfer on death deeds.

OK, OK. And Jim called back by the way, Bryan, how would you obtain access to the military?

Yeah, I want to know how to obtain access email outgrossed so of course you could seek counsel you could speak to an attorney to do that agent hum services may be able to provide that to aging and in-home services may be able to provide that for you as well.

I am aware of some local banks that have very basic Miller trusts that they have that they've used to understand this is coming from an attorney so my advice to you would be seek out an attorney to have that prepared and understand how it works fully understand understand how you can designate beneficiaries in that Miller Trust.

So but but how do you access them?

As I say, I know some local banks have them.

I've seen people that have come through my office where they sign him at a local bank.

I have also seen nursing homes that have used those for some of their residents.

I'm always careful about that.

I cautious about saying to somebody find a form online.

>> Yeah, I know I'm very sensitive to that that can create problems for you and you're just it's not what you know sometimes it's what you don't know which is which is I am most attorneys at least that I've talked to have said don't do it will online although you hear it advertised it's I don't create problems saving you're saving a few dollars now but it can cost you a lot in the future.

So I would really encourage you to use appropriate counsel, seek out something that you have confidence in.

It's making sense to you when you're speaking with them to get those documents in place and make sure that they're properly aligned with what you want to get accomplished.

>> Yeah, Brian, our time is as always has gone way too fast.

Brian we'll be back again next month and if you have questions, watch for Brian.

>> He'll be coming up here in a couple of weeks and we appreciate all of your questions tonight and Brian, I appreciate your answers to our viewers here.

We'll be back next Wednesday at seven thirty with a new topic and new guests.

Meanwhile tonight just stay happy and stay healthy and safe tonight Nugen Law; specializing in estate planning and elder care law, emphasizing independence and quality of life.

Serving Indiana, Ohio, Michigan, and Florida.

More information at NugenLaw.com.