.

>> Good evening.

I'm Sandy Thomson, host of this show which is called LIFE Ahead.

But our real guest you're going to meet in just a moment if you haven't met him or seen him on our show already and that is Brian Nugent, an attorney.

So think about that if you have some legal questions, this would be your opportunity in the next half hour to give us a call here at (969) 27.

We love it when you call and have questions for us.

Now our main topic tonight we're going to be talking about estate planning and move on into some of the ramifications of that.

>> Brian has experienced a lot in his how many years, Brian?

Just over 30 believe it or not, 30 years.

It happens fast.

Well, he tells me he started practicing law at 10, 11, 12, something like that.

OK, Brian, we love when people call in.

You welcome that.

And the reason we call our show LIFE Ahead, by the way is because we try to give you each week information and education that will help you with some of the decisions you have to make in your LIFE Ahead.

>> And that's what we're going to do again tonight as we start our show here.

>> Let's start with some basic things, Brian, and then we'll get to some questions.

Elder law I indicated you were an elder law attorney.

>> What's the difference between an elder attorney and a any other attorney?

>> So there are different areas of the law in which attorneys oftentimes focus their practice.

So my practice happens to be focused in elder law.

So what people are probably used to hearing is estate planning.

>> Estate planning is different than elder law.

Estate planning is strictly planning for where your assets go when you pass away.

Are you going through probate?

You're going to try and avoid probate elder law does all of that as well as protecting assets during your lifetime, making sure that as you age and if you need assistance as you age that you aren't running through all of your assets, spending all of your money, losing your home, et cetera and then securing benefits to pay for that care and those benefits could be in the nature of from the Veteran's Administration could be from Medicaid etc.

So typically elder law is doing everything that an estate planning attorney does planning for where your funds go at the time that you pass designating the individual to handle all of that for you, number one.

And then number two is protecting assets during your lifetime.

So it's you're working with folks that during their lifetime protecting those assets and securing benefits for them.

What's interesting is that sometimes folks get confused with elder law thinking it's only for for clients that are 70, 80, 90 years of age.

>> Actually elder law attorneys oftentimes with folks that are requiring guardianships or special needs children and couples you got it guardianships for folks that need a guardian and that could be a younger person or for a younger couple that may have a special needs child or special needs child as is turning age 18, we're securing funds for them or making sure that they're appropriately cared for and that team around those special needs folks well and when they turn 18 they need to get guardianship, guardianship .

>> You've got to go before a judge probably here in L.A. County.

That's right.

Yeah.

Other counties it would be different judges.

>> OK. OK, well thank you for explaining that and again to emphasize although we say elder law doesn't mean you have to be elder to be watching tonight or or to even be talking to Brian because we're talking to all of you out there.

>> OK, we have a question already tonight.

This is from Juliet and she says My sibling is the executor of the estate if I was to challenge the will in effect, how long will it take to stay in probate?

So Juliet, you're asking if so apparently there's something that's happening in that state that's being probated at the court.

So we have an estate that's in probate.

Your brother's been appointed to be the personal representative.

Sometimes people say executor but in Indiana we say person representative and there's something in that estate that you don't like.

So if you were to challenge that and you file an action and you say I want the will to be set aside or I think that my brother isn't doing a good job as a person representative it's a it's a legal action and so how long would it take?

It depends on the nature of that legal action.

It depends upon the attorney that you're retaining and the discovery process that's going on when the other side that's representing your brother when how they respond are we having depositions?

Are we having a lengthy discovery process?

How long is it going to take for you to get into the courtroom?

So litigation inside of an estate or related to estate can be just as long as any other type of litigation.

There isn't a magic number.

It wouldn't extend the estate by one month or two months or six months.

I can tell you that I've been involved in a state litigation matters that have taken years to resolve.

I've been involved in litigation matters that the folks were able to come to a conclusion very quickly and although it did extend the nature the length of the estate, the probate process, it wasn't extensive and it wasn't horrible but generally litigation can take a very long time.

Attorneys are very busy.

The courts calendar is very congested so that process can take some length of time if in fact you can resolve your issues and resolve your concerns short of filing litigation, I would encourage you to do that.

However, if it really is a situation that merits your filing and action by all means do it obtain appropriate counsel for that and by all means proceed and ask for those issues that you believe need to be corrected to be corrected.

>> Do you think that sometimes these types of things can well to use other legal situations can be settled out of court so that we don't have to worry about the time period?

>> I would say most cases actually most litigation never goes to court.

It actually does settle outside .

>> Typically courts will require if there is litigation going on at some point in that litigation process the courts will require a mediation so they will order you to mediation meaning that you have Juliet you would have one attorney, the person representing the state would have another attorney and typically then you would hire a third party, normally an attorney to mediate between the two sides, an attempt to come up with a resolution that will will solve the case.

And I historically I've mediated and I was would like to say if you this is person and this is person B person isn't going to get everything that they want.

Person B isn't going to get everything that they want but how close can we get together so that you still can accept the resolution understanding if you don't resolve the matter, if you don't resolve it or you don't agree to it, it's going to cost more money.

It's going to take more time and frankly it's very stressful to be in the litigation process .

It's an emotional process especially when it's tied to a loved one that's passed away and or maybe inheriting from them and it can be very emotional and very stressful.

So to your point, Sandy , if you can settle outside of court generally your dollars ahead and your stress ahead for sure.

Yeah.

And you know and since we're talking as Brian mentioned, maybe settling an estate for somebody that's passed, you get the whole family involved and then you can create stressful situations or divisions among the family.

>> I think the sad part about litigation that goes on in estates is that that's the legacy that's the legacy that's left over from the family.

That's what you're remembering.

You're forgetting all those decades that you enjoyed someone and the relationship that you had and unfortunately the legacy that bad taste in your mouth that will last for the remainder of your life is that litigation and how the person who didn't believe that this person acted appropriately or that person acted appropriately.

So by all means, if you can resolve it quickly and appropriately, I encourage you to do so.

I think sometimes when folks pass away and you're inheriting it's that last message from a loved one that they're going to be remembering you in a certain way or they didn't remember you in a certain way and so that to can create a legacy sometimes a very, very good, very positive which is a majority of the time .

Sometimes though we have events that take place that may leave a sour taste in someone's mouth and again that's leaving a legacy and not necessarily a good legacy, right?

>> Yeah.

Yeah.

Legacy isn't always positive.

>> It's not OK as as an elder attorney, what kind of situation or what do most of your clients come to you for ?

>> I would say the clients that come to see an elder law attorney there are different stages in their life that I'm seeing that they typically are coming in one you mentioned earlier about a young couple so we have a young couple with their first baby.

They may not garnered a lot of wealth yet but they have this precious child and they're recognizing oh my gosh, if something happens to us, who's going to take care of that child?

Yeah.

So oftentimes folks come forward initially when they want to make sure that they have the appropriate guardian in place and things set up for that child if something negative happens to them the next time that I see people is when some type of a medical event has happened.

Typically not a good medical event and they're a little shook up and they're thinking oh I better get some things in order.

Somebody has a diagnosis that they weren't expecting and so that's another time when I see folks when people are getting close to retirement or just at retirement oftentimes when they're speaking with a financial advisor, financial advisors very frequently worked with elder law attorneys and they're referring clients to them so when they're with that financial adviser and they're getting their things together and ready for retirement planning, they're there that income stream that they're looking for in retirement or just that retirement we oftentimes see see clients then the next phases that I would say that I see clients coming in and other elder law attorneys are seeing clients coming in is is normally when you're in your 70s and you're seeing friends may be suffering an illness, you see a parent having an illness or their cognition is declining and they're concerned gosh, there's a lot of money going out to provide care for that person.

We're seeing this sold or that sold and that's not what they would have wanted.

So oftentimes elder law attorneys work with folks during that time period and I would say that the final time where we're seeing a lot of folks coming in to see elder law attorneys is when you have a nursing home stay a memory care unit stay you're paid for care in a home.

Your folks are writing that ten thousand eleven thousand twelve thousand gacek per month and all they're seeing their their accounts dwindle.

They're seeing their assets go down.

So those are typically the high points of when I think most elder law attorneys are seeing clients come in to them and looking for advice and work.

>> OK, this is a question just spurred by what she just said you were talking about writing that check each month for a nursing home or our home health care of obviously if people are in their 70s, 80s, 90s and whatever what they had planned for and anticipated as their retirement or money to last them the rest of their life may not be true anymore.

>> How do you deal with that as an estate planner?

How do they deal with it must be shocking when you hear numbers like that.

>> Yeah, I you know, I would say as far as spending money it's two things that I see in retirement if you're healthy normally I'm seeing folks spending less than they anticipated.

You're you are living on your Social Security, your pension and your distributions from your IRA and oftentimes people aren't dipping into their savings.

The shocker that you're referring to, Sandy , is when we have a medical situation.

>> Yeah.

And never anticipated it.

Never planned for it.

I've never had a client that said to me I just can't wait to go to memory care.

I just can't wait to go to the nursing home.

Now there is a time and place for both of those facilities and there's nothing wrong with those facilities whatsoever.

But people kind of in the back of their mind they're saying that will never happen to me but when it does happen oftentimes that's when we see folks come in and saying what can I do to stem the loss of my life savings?

What can I do to make sure I have enough money left to care for my spouse when when we have a husband or wife for example, and the husband is needing care and the wife is writing those checks and she's getting nervous?

Gosh, I'm healthy.

I have a long LIFE Ahead of me and I'm seeing our our reserves dwindle.

>> That's making me very nervous.

So yeah, of course I see clients during those times.

Exactly.

We have another question from Larry.

>> Larry, thank you so much for watching us here on Life Again and and thank you for your question.

He says both my parents have deceased.

>> Both did not have a will.

There is a house that has been in question.

>> So in regard to the House, if if someone's passed away and they owned property, I would assume there's maybe more property than just the house itself.

I don't know that that could have accounts, et cetera.

We're going to if it's just the house we may be able to transfer that there's an affidavit process actually that's fairly straightforward to get the home transferred if if there is more than that asset depending upon the amount of assets that the person has and the and state in which they're living at the time that they pass, then you would have to open an estate and within that estate then get have a personal representative appointed and then transfer that home from the name of the deceased to the individual that's receiving that.

So if your parents didn't have a will, Larry, there's something called intestate succession that controls who gets that property so there's a statute in every state that indicates if somebody dies and they didn't do that planning in advance, this is who gets that property.

And we take a look at did the parents that passed did they have parents that were still living?

Do they have children that are living to have a child that maybe has passed and has grandchildren and had children?

So you've got grandchildren that are involved.

So you look at that statute, it's just it's it spells out exactly where that real estate goes.

>> If your parents didn't have a well, let's say that Larry had siblings and there's this house that has to be so all the siblings are treated the same.

>> Oh so if there are five five children of the deceased, they're all going to inherit the same if if there's one child one child receives it all.

So it's completely dependent upon how many children there were or who gets that at the time that the person passes we strictly look at the statute and that spells it out.

>> I'm curious you said the statue in the state that says who gets what if there's no will?

>> It's different for every state and who decides that?

>> Well, the legislature in the state decides that.

Yeah.

So there's a law that's passed and then and and that law indicates who gets that money when an individual passes.

>> I would say generally yes, it is different in every state.

I don't know that would be radically different in every state but yes, each state statute regarding intestate succession is different.

>> OK, all right.

That's good to know.

Thank you Larry again for watching us here on appreciate it.

>> OK, thank you and for helping Larry out there.

I hope I know it gets complicated people you don't know what to do unless you're in that situation.

>> Yeah I think to that sometimes people try to resolve issues on their own and sometimes it's fully appropriate.

I would if you're insecure about what you're doing or how to transfer those assets, I would encourage you to seek counsel.

It doesn't mean that you end up having to use the attorney to do that but you might just make sure you're on the right path.

Yeah, because that's an issue especially with real estate, right?

You can't just sign a deed because you want to sign a deed or you were the child.

>> There's an actual process that we need to go through for that.

I love this question.

What that love this question.

I hope you're all in this situation.

This from John.

Thank you, John, for watching and for calling in with a question.

>> Johnson I gifted my children a large sum of money but I am living longer than expected how to protect the money that I have.

>> Yep.

So if everybody lives longer than they expect.

Yeah great.

That's fantastic.

So I think the question that John is asking is if I had made a gift to my children and at some point I have medical concerns, I need help in the home.

I need need to move to an assisted living facility.

I need to move to a nursing home or a memory care unit and I've made that gift.

How do I pay for that?

Well, it's all time sensitive.

>> So if you this is for Indiana if you had given money away within five years and then you need that care, there's a penalty that's imposed by Medicaid and so for every X amount of dollars that you've given away it creates a time period that's a penalty period and the penalty means that somebody else other than Medicaid will have to pay for your care will have to pay for your stay.

So if you intentionally made a gift and you got so you've given money away, obviously that was intentional and you didn't get anything return Medicaid says you gave money away.

You didn't get anything in return.

We assumed that you gave that away to bring your estate down so that the state Medicaid will have to pay for your care so they penalize you.

So generally between seventy six hundred seventy seven hundred dollars for every seventy six seventy seven hundred dollars that you've given away, there is one month of care that Medicaid will not pay for .

>> Oh so if you've given away this is very rough if you've given away twenty twenty one thousand dollars they're three months of care that you're going to need to have paid for somehow.

So at that cost of care is ten thousand dollars a month eleven thousand dollars a month it will have cost you the gift that you made plus that ten eleven twelve thousand dollars per month of your care.

So gifting as a means of reducing your estate so that you can go on Medicaid that may be an element of that but I would be very, very cautious about doing that without very good advice and how to do that effectively without creating a penalty for yourself.

So how do you pay for that care?

Well, you can ask for the children to give the money back to you that you had gifted that's called carrying the gift.

You carry that gift and then you appropriately plan for protecting that money typically by using an elder law attorney.

But you're going to plan to protect that money and once that's handled then Medicaid could pay for your care if you really cannot receive the money back from your children I can't afford to pay you back then you're going to need to find out a different way to pay for your care gifting is not a way in and of itself to protect your money from long term care state costs from memory care unit state costs.

>> You have to be very, very cautious with that.

Yeah and I think it's important that you mentioned people should get some good advice because I hear that a lot on this show no matter what our topic is when we get into estate planning a lot of people get advice from neighbors friends that read something on the Internet.

>> I will just recently came across that someone had read something on the Internet and the Internet's not always true.

>> Well, we have to so there's there is good information out there.

I know.

But understand how many different states are every state has different rules and regulations.

Yeah.

When was it written Medicaid regulations can change over time.

So in what year was it written?

Who wrote it?

Who was it written for and what state was it written?

So be very cautious about what you're reading.

You can get yourself in trouble sometimes people are well-intentioned and they're in their posting things online about this is what we did to protect assets.

This is how we got Mom on Medicaid.

It's different if you're a single person, it's different if you're married.

So be very cautious about reading those things and not getting really quality council good advice.

>> OK, now when people come to you for advice for elder law advice, what are some of the first things they need to do or bring to you provide to do so great question.

I like to have as much information about the individual's assets as they have.

I normally will say to them it's not to be nosy what it does is it gives the attorney that you're speaking with information so that they know how it is that they can best help you.

For example, a Roth IRA versus a traditional IRA may be treated differently.

A brokerage account versus an annuity may be treated differently.

So when you're speaking in generalities it's not helping the attorney that you're working with to really be able to give you excellent advice.

So I think the first thing to do is to make sure you generally know what assets you have life insurance policies, checking account savings accounts, brokerage accounts or the amount that you have.

The number of zeros that you have is irrelevant.

You just need to be straightforward.

Let the attorney know what you have, what things you're trying to protect, what things you're working with, how you want to pass those things when you die.

So think of conceptually what things do I want to protect?

Where do I want those things to go when I pass away then I think also you need to be prepared to answer the question who's going to help you if your health declines?

Who's going to help you if your cognition declines that that information should also be considered by you before coming in to see an elder law attorney.

>> OK, good good tips there has called in.

>> He said is there an age requirement to be a power of attorney for an estate or a will?

Good question.

Is it the same for every state?

So I'm worried about all these states I guess.

Well, PBS goes in different states so I always sensitive when I'm answering because we've got Indiana, Michigan, Ohio probably all receive the broadcast.

>> So James Power of Attorney is a document that is separate apart from one's will so if you're appointing someone you're actually not appointing them to be power of attorney, you're appointed to be something called an attorney in fact.

And the power of attorney is the document which appoints them as the attorney in fact.

So what's the age 18?

So you have to be competent.

You have to be eighteen next for your estate the personal representative that you're appointing.

So in your estate you appoint a personal representative, not an attorney.

In fact again they need to be eighteen years of age, be competent.

So hopefully that's that's answering your question.

So you would not want a minor to be serving in that capacity .

>> You need someone that's age of majority eighteen or older and to be competent at the time is that the same age then for guardianships?

>> You talked earlier to be the guard meeting so depending now if you really were an orphan right.

>> And you had no family and had you didn't have any one that was able to provide care for you, it is true in that situation you would require a guardian.

>> However, when you cross when you turn 18 so at midnight when you when you go from age 17 to age 18 and you are in competent we want to have a guardian in place that can make decisions in relationship to you, your personnel and also make decisions in relationship to your finances, your money.

So yes, at eighteen when the person reaches the age of 18 that's when they may need a guardian if they have if they've been declared to be incompetent which could be for any number of reasons.

>> Yeah OK. One it that's all I have OK but I'd like you to share in one minute the most important thing people need to know about estate planning preplanning.

>> Sure.

Preplanning well first I'm going to say James to your point about the attorney, the power of attorney attorney in fact everybody needs the power of attorney.

Everybody in the health care representative designation.

Everybody needs to have a waveform.

So I'm a student going off to college for the first time.

I encourage folks to have those in place.

Those are as important as a will trust.

They really are essential because with the properly prepared with the properly prepared power of attorney, that individual that you've appointed can handle your estate planning for you if need be.

>> Oh OK. And you said even going off to college of course you're eighteen so let's say you're not married, you're single person.

Even if you were married and you were young, who's going to make those decisions for you if you have a car accident and we have a situation of incompetency, I have to go to court and open a guardianship if I don't have the power in place.

>> Boy, there's just so much to remember and so much to do.

>> Brian, thank you as always for sharing information and educational ahead here on PBS for Wing and of course we'll be back next Wednesday night right here at seven thirty with more information to share with you Bryan.

We'll be back twenty twenty five.

That's right.

Meanwhile, those of you that have been watching thank you for that and have great holidays as they're coming up soon