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.

good evening and thank you so much for watching PBS Fort Wayne I think you're going to enjoy the next half hour.

>> I have a guest with me that if you watch us regularly here on LIFE Ahead you've met him many times attorney specializing in elder law Brian Nugent is with me here this evening.

Welcome, Brian Nugent.

>> Thank you, Sandy .

I appreciate it.

Good to be here.

I bet people are starting to ask for your autograph now that you've been on so many.

>> They're asking for me to get your autograph.

No.

That's pretty fun.

Well, Brian, by the way, again, like I said, this is a legal show tonight and we're going to focus on probate.

But if you have some other questions related to estates at RILLS or things like that, Brian's always very, very happy to answer viewer questions.

>> The number is (969) 27 twenty .

And here's a little tip.

You can call that number that's at the bottom of the screen and it'll be there for much of the show here off and on.

But if you live out of the immediate area, just put it one 866 in front of that and there will be no charge call for that and the operator in the in our control room, the phone operator will answer those calls.

And if you are willing to talk to us live here on the air, that's wonderful.

>> If Brian has a question back to you, you're right there if you're not, it's OK because they'll just take your question, type it up and send it out here to the studio to me on a teleprompter.

>> Do you see what I did, Brian?

And I said you when you call and I went like this I still see old school still things like the old phone.

>> Yes.

You know, that's OK because currently then if you have a phone in front of you not up to your ear.

>> All right.

Talk to me about probate first let's define it and tell me why we're talking about that.

>> Why is it an important subject?

Well, it is an important topic.

So probate is the process whereby when someone passes away if they have assets that were in their name that didn't have beneficiaries on them or weren't in a trust something like that, there's a process that you go by where you you take the last will and testament of a person if they had a will or if they didn't have a will.

>> We ask the court to open an estate so we we file the will or we ask the court to open the estate if there wasn't a will and we ask the court then to appoint someone called a ersonal representative PR PR lingo you got it sometimes referred to as an executor executrix but personal representative is appointed and then that person when the court appoints them is able to gather the individual's assets, determine what debts are appropriate to be paid and there's an advertisement the newspaper that's happens.

>> So if anybody believes the deceased person owed the money they can file a claim in the estate, the estate that probate process that estate administration process can normally it's a year more or less if they're to settle the whole estate not done hard for it to be a year if there's strife within the family, if there's debate about who should be receiving funds or there's debate about if a debt should be paid, it can go well beyond that period of time.

There's a difficult asset for us to sell.

It might have the estate open.

So probate is a process whereby we open something with the court.

We have a personal representative appointed.

>> We advertise in the newspaper.

There's a series of events that happen after we do that there's nothing wrong probate in the sense that in the end the money gets where it should go if you created a will where you've desperate to go.

>> If you didn't do that, will we do something called intestate succession that determines where the money goes?

>> The challenge with probate oftentimes though is the length of time that you were asking me about Sandy , the expense for that process to go through advertising expenses, attorney expenses, personal representative expenses and frankly if somebody wants to be nosy and see what you said in your will, it's a public document so they can go and take a look at it seriously.

>> Oh yeah.

Yeah.

So the will once it's once the start open and nervous well I don't know what you're giving away in your will but sometimes people are feel very protective of that and they don't want their neighbors or somebody else that's nosy to see that they've given this child a certain percentage of their child a different percentage or that what charities they've remembered or maybe somebody that they're specifically disinheriting or how the money's going to be doled out to their grandkids over time.

>> But that only becomes public when when the estate is open.

So after you've passed and we filed with the court then in that instance is when it becomes public, not prior to that.

>> OK, all right.

That OK now a lot of people have asked me knowing that we've had Brian and attorneys here on life they had so many times and in talking about probate and getting an estate settled that you said maybe up to a year down, do I understand that it could end a lot of people think well, OK, my grandfather passed away so that will will be read and everything will be distributed probably within a month or you know no very complicated.

>> Yeah.

Even when we open the estate there is a three month claim process.

So this is a process during during which folks that believe that is owed they have the ability to file a claim in the estate and depending upon the size of the estate we we may have some distributions before that three months is over but normally it's better to be conservative and hold off on making those distributions until we have a real handle on those debts that nearly exist and expenses in the estate.

>> That's correct.

Like you mentioned, if you have if some of your assets might be real estate, you know, just takes time sometimes to get that sold.

>> That's true.

But again, there's another expense.

That's right.

So you have to get all that balance.

>> OK, here's another question.

Yes.

Everybody asks me in terms of settling the estate you said it could be it could be up to a year depending again on it's not hard to hit a years honestly it's not hard to hit a year.

>> You have tax returns that need to be filed, right?

Yeah, So it's not difficul at all for it to be a year.

>> OK, now you said advertising in the newspaper, right?

>> OK, we have to talk about that.

OK, that newspaper circulation as everybody's heard it is certainly down compared to what it used to be in years past.

>> But if by law you half that's right.

>> Good in the newspaper that so-and-so has passed away that's so what if nobody sees it because I don't get the paper so well as long as you're complying with the code of the state in which you you've the estate is being opened and generally it's a newspaper that's in general circulation within that community so it still stands we are advertising in the newspapers and that's the that the statute requires.

That's where we advertise and remember when we're advertising the newspaper, it's just for those folks that may have a claim in the estate.

So it doesn't stop the estate from moving forward.

So if we had no claims and oftentimes we don't we do get claims on occasion.

But oftentimes if folks are on top of their their debts they're on top of paying our responsibility.

>> They're their financial obligations.

We don't have a lot of claims in the estate but what if you before you passed away what if you had a let's say a contractor do some work at your home and and you owing four thousand dollars but he doesn't see that in the paper then what happens?

He can't go back and ask for his four thousand if he doesn't know the person passed away.

>> It's true and in order for him to file a claim in the estate he has to file within that three month claim period.

>> Does that happen very often that there are some that are just isn't paid?

Why am I being you know, I don't know.

>> I think I actually sometimes attorneys will wait to open in a state for a period of maybe nine months and the in Indiana for the nine months to wait is that after you've waited that length of time then those unsecured claims so credit cards, other unsecured obligations are discharged and they don't need to be paid.

You still have to notify those creditors of which you're aware that they're the estate's been opened.

If you have a claim, please file a claim in the estate.

However, if we're beyond the nine months they're not going to have any luck at getting it paid and probably I'm guessing for most people their expenses are monthly so they would be getting in the mail or email invoices for whatever they're their heat, their whatever gas bills, lawn mowing, property tax.

>> So whomever is handling the estate would be notified of those expenses.

>> I'm talking about I guess the things where somebody's been hired freelance to do so.

>> Sure you can't if you're aware of a debt you have an obligation to let the creditor know that the state has been opened and if you have a claim in the estate you need to file the claim state so you do have that obligation to do so.

>> The advertising in the newspapers is that has to be done as well.

So if there somebody of which you weren't aware or reasonably aware of that the decedent owed money to, they have the ability to file a claim and that's the purpose of the advertising.

Got it.

But the advertising itself is not that's pretty routine.

It's OK. We're spending a lot of time talking about that.

But that that is that's a requirement.

We can't avoid it as far as being in the newspaper, if it's by statute we have to advertising a newspaper it's in general circulation in the community.

>> So OK process well a lot of papers have information online but is there to your knowledge any kind of a website that lists obituaries for northern all of northern Indiana?

>> No newspapers of course run obituaries if I'm I'm maybe stepping out of line here.

I don't know if you could contact the newspaper and say please don't publish this obituary.

Maybe you could OK, they they pick those up whether or not the estate or the family requests them to publish it because funeral homes have to report that to newspapers, don't they?

>> Do they have but I'm saying I don't know if there's a means of saying to the newspaper we don't want this to be run.

>> We don't want this to be published.

But the obituary and the claim period are unrelated.

>> OK, so I could wait know months or or even up to three years to to probate someone's will.

Yeah.

So there there are times that it isn't open.

For example if we weren't aware that someone had an asset that needed to be passed through an estate so we discover an asset at some later point a loved one had an investment and we weren't aware that the investment existed and then we find out next year during tax season oh my gosh, here is a ten ninety nine we've received there was an investment out there and so oh well there is one we need to get that dispersed so now we're going to open an estate.

>> So there are there are reasons for estates not being opened immediately after someone's passing and frankly what when I see my clients and I would tell the listeners as well the first thing you need to do when someone passes away is not to rush and open the state within 24 hours, 48 hours.

>> It's due to grieve and to recognize what's happening with your loved one and to take a moment take a beat for that and after you're finished with that as best after you process that as best you can, then that to me is the time to come in and speak to an attorney.

I I said that to folks when when my clients or their family members call and say you dad passed this morning or dad passed, you know, just yesterday, what do we need to do and I'm going to give them some information about what to do but but frankly take a beat.

Yeah, Respect where you are.

>> Take care of yourself, your family.

There'll be time for us to get that money distributed to that I can I can see where a lot of people would think well they need to call the attorney right away but that's great because that first week or two weeks you're making funeral plans.

>> You have people family coming in from out of town.

It's just you're not tracking it's that that process when someone passes, whether it's anticipated or not anticipated, it's almost out of body.

>> You are on automatic pilot.

>> You're not thinking clearly.

It's a very difficult time.

So I'd like to tell people take a moment, respect yourself and when you're ready come on in.

>> Nothing's going anywhere.

We have a call.

All right.

And we always do here when you're on Brian this is from James.

James says Does the court assign a representative to a young person who passes away without a will or does a family member decide good question and that probably happens, James.

>> I'm guessing occasionally.

So when you say young person, I'm not sure if you're referring to someone under 18 or someone over 18.

So if they're eighteen then yes, an estate has to be open for that individual even if they're under 18 and they had assets in their name.

So we're looking at did they have assets in their name and it's different state by state but in Indiana in order to be required to open the state you need one hundred thousand dollars or more.

>> So if the young person under 18 had assets in excess of one hundred thousand dollars then yes, one hundred thousand dollars after we take into account any debts that that person may have had.

So if we have a net of one hundred thousand I have to open the state if you're under 100000 we can distribute it through something called a small estate affidavit that's a little bit faster process.

We do that within forty five days of someone's passing but simply because someone passes doesn't mean they need to have a personal representative appointed for them or on behalf of their estate.

It really is just if their assets to pass so if for example someone had assets at a bank and they had a beneficiary designated on that account have a million dollars in that account but I'm a beneficiary it's going to my spouse or going to my siblings or going to my kids, whoever it may be.

I don't need to open the state for that account because we've designated a beneficiary so we skip that probate process if I've established a trust in advance and that million dollar account was in the name of my trust, I don't need to open an estate because that trust designates where that money goes.

>> So we don't always appoint a personal representative just if we have assets on which beneficiary designation has not been made or if it's not in a trust something like that.

>> The controls where it goes now one of the things that James said here at the end of his question was what if a person passes away young person or younger whatever passes away without a will does a family member of the family member decide so if somebody passes away so it can't just be a brother or dad can be so oh can there's no there's you have the statute indicates that it should be a person that's interested in the estate somehow.

OK, so if you're a neighbor that has have no interest in the estate, no interest in receiving any money aren't owed any money by the decedent, they wouldn't necessarily be the most appropriate person to be appointed as personal representative.

So if there's a family member that needs to open an estate, they would they have the duty to notify others that are interested saying I would like to serve as a personal representative.

Do you agree for me to serve as personal representative if you don't if they don't agree or you're not getting those consents back, we may need to go to court and then say to the judge attempted to get folks to consent to my serving as personal representative, your honor.

I've notified them this hearing if they show at the hearing that can say why they don't believe you should be appointed the personal representative and if they don't show and we can prove that they got notice, the court will most likely say yep, you can serve sometimes we have to post a bond.

>> Sometimes we don't have to post a bond.

If you're not a resident of the state of Indiana, you would need to post a bond in certain circumstances if the court felt that a bond was necessary, if people were questioning your veracity or questioning that whether you would be appropriate to serve in that position as a personal representative, the court can require a bond in that situation as well.

>> But they're not frequently they're not required.

OK, that makes sense.

OK, thank you James by the way for watching the life I had here and for calling us with the question.

We still have several more minutes of the show if you'd like to give us the call (969) 27 twenty .

I have another question.

Yes, Let's talk about trust.

>> Yep.

I know you've mentioned before that you could put some of your money into a probate trust, am I not?

>> I'm well maybe a living trust so there revokable trusts you so trust is a huge category an umbrella.

Can I get umbrella if I slice it are like a rainbow I slice it down the middle.

OK how about that an arc half are revokable half are irrevocable.

>> OK typically if we're simply looking to avoid probate avoid that estate administration process we would use a revokable living trust but there are other types of trust that we use as well that would enable us to do many different things including avoiding probate trusts.

>> Is there just a contract?

So it's a contract that your requesting to your attorney to prepare and that contract appoints in essence three different players within that trust.

Normally we have someone called a settler grantor trust maker that's the client that's the person that requested that the trust be prepared.

They're the ones putting the money into the trust generally the next position would be trustee you can think of the trustee is the manager of the trust.

So the if it's a living trust typically the individual that created the trust that that settler that grantor they're serving as their own trustee and then we have a beneficiary beneficiaries the one that can enjoy the money from the trust that can benefit from the trust and and very broadly there are two levels of beneficiaries of trusts.

I talk about lifetime beneficiaries and we talk about ultimate beneficiaries.

What's the difference?

>> So the lifetime beneficiary is during the lifetime of the& settler the grantor who enjoys the money, who can and benefit from the money in the trust during their lifetime after they've passed the ultimate beneficiary or beneficiaries would be the person that are receiving the assets from the trust at that point.

>> So if I've said during my lifetime my spouse and I can enjoy this money we're going to use it to live and we're going to spend it as we are wont to do if we have expenses we can take my trust and pay those expenses.

>> Then at the time of our passing I'm saying money is going to go to my children.

>> It's going to go to PBS .

Right.

We're going to make a donation to PBS and another charity.

>> Those are the ultimate beneficiaries.

So ultimately they would get the money out of the trust after the passing of the settler.

>> OK, all right.

That makes sense.

And you know, it's I know we're making it sound complicated here and it is for him it's not for us if we do go to an attorney because they know what to do but we try to simplify things for you here on LIFE Ahead and and give them information education for your decision.

>> That's the whole point of being.

Yeah, well it would be like a key thing people need to know about trust.

Do you have to have a certain amount of money to set up a trust?

>> Yeah.

What happens if you've used up all that money?

Well, the trust is just it's like an envelope that holds assets that you put into the trust so it could hold your real estate.

It could hold a brokerage account checking account savings account.

There is no magic number for amounts that you put into the name the trust there.

>> It could be a nominal amount.

It could be an exceedingly high amount.

>> It really is.

What do you want to get accomplished as a client?

What is it that you want to get accomplished?

Is it important for you as we were talking at the top of this program to avoid probate because trusts permit us to do that?

Is that important to you?

But also there are other things that trusts can do.

We we can use trusts if someone is a special needs individual and if they hold money in their own name they would lose their public benefits, their Medicaid for example.

So we might use a trust to shelter that money for them.

>> Again, it's just an envelope, a box that holds assets and then there are rules that go with that.

>> But so no Sandy there's no no minimum or maximum that that we set up trusts for .

>> It really is what does the client want to get accomplished?

OK, and you've talked before and we've talked about estates or wills or whatever you've talked about.

>> I'm learning these terms.

All right.

I'm using here legal terms to transfer on death.

Right.

That you might state that a certain asset is a transfer on death to somebody.

What's the advantage of that?

>> So transfer on death is a beneficiary designation.

So I've said that a couple of times tonight a beneficiary designation you're indicating when I pass away where does this asset go?

>> So on that asset itself you're designating who receives it.

>> So in Indiana we have Todd transfer on death deeds so that I can convey my real estate to an individual at the time of my passing they complete an affidavit after you've passed record that in the properties in their name alone avoiding probate, avoiding the need of the trust in that situation I could put a beneficiary on my checking account, on my savings account, on my brokerage account IRA so when I pass we look at the individual's name that we've put on there and it automatically goes to them.

>> We're avoiding probate, avoiding that entire process so that Todd that you were asking about transfer on death sometimes you'll see institutions call it pod payable on death.

Sometimes you'll see beneficiary designation but in essence they're all the same thing.

>> OK, transfer on death and payable on death based on anonymous when as far as the deed is concerned it is specifically called a transfer on death deed.

However, you'll come acrosspinse beneficiary designations different things.

>> So if you were to simply say POD the institution that you're dealing with may say pod you mean a beneficiary designation or you mean a Todd transfer on death.

In essence they're all the same .

>> You're wanting to pass those assets after you pass after you die without going through the probate process.

Maybe you don't have a will.

>> There's a you have a transfer on death beneficiary designations.

I do like to add a caveat to that.

There's nothing wrong with using it in the right instance.

However, when you do those beneficiary designations it skips what you say in your will.

>> It skips what you're saying in your trust.

So that if for example you said I want my grandchildren to see this but not until they're twenty five if you've designated a grandchild as a beneficiary it goes to them if you've designated your children's a beneficiary and they're minors it goes to them of course until they they hit eighteen.

So whoever the Guardian is for them would be manage that money for them till they hit eighteen but so we have to be a little cautious with those beneficiary designations.

>> They're not right in every instance.

For example owning real estate with someone else is always a challenge.

So if you've said the farm I'm going to convey the farm to my children.

I've got three kids and I wanted them all to receive the farm.

So now we have the children now have the farm in their names.

Maybe one wants to sell, maybe one is ill, maybe one has debt.

>> So now the others are in business with their siblings because that's how the transfer death designation happened.

>> So you suggesting that people avoid having more than one owner of an asset?

>> I know I'm sure I'm cautioning that real state can be a tricky one to own with someone else if I have an account where I've got more than one person designated on it two children, three children, five children it doesn't matter because they get there one one half one third one fifth of that of that account easy.

It's that real estate.

My experience has been that I'm going to give the lake cottage to my kids.

One child is up there all the time maintaining it, doing a great job.

The other child their kids run up on the weekend, have to have a party and they're going a little crazy and it's frustrating.

>> So I'm just cautious about that and I like when I'm speaking with my clients I'd like them to be aware of that but they need to make the decision ultimately the attorney doesn't make the decision for them.

>> It's just something to be aware of .

OK, good tip certainly OK a lot of food for thought if you will .

Brian Nugent, thank you.

Thank you.

I appreciate it.

Thanks for having me on.

I'm sure you'll see Brian with us again here on LIFE Ahead.

Meanwhile, every Wednesday night we're right here in PBS Fort Wayne and bringing you hopefully new topics.

A new guest every week here on LIFE Ahead.

Have a great night and stay healthy and stay happy 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.