Join Attorneys Bob Mannor & Kelli King-Penner on this special Halloween-inspired episode of the Advice From Your Advocates Podcast. Listen as Bob & Kelli explore the hidden nightmares hidden in the shadows of bad planning. Are you prepared?
Read the transcript below:
Intro 00:00
You're listening to advice from your advocates a show where we provide elder law advice to professionals who work with the elderly and their families.
Bob Mannor Host 00:09
Thank you for listening to advice from your advocates. I'm Bob Mannor. I am a board certified elder law attorney in Michigan, and, as we are preparing for Halloween when we tape this, we decided to do a fun little podcast on Horror stories for our state planning, so my guest today is Kelli King-Penner, an attorney at Mannor Law Group and a certified dementia practitioner, and so we're gonna go through some examples of Some of the horror stories that we've seen and things that you should think about if you're doing any of these things. Okay, so let's just get right into it, Kelli. All right, so the first one is one that is very important to elder law attorneys. This is something that should be very important to everyone, because most of us are gonna face this at some point before our death, which is getting sick or becoming incapacitated, and so the first horror story would be getting sick or becoming incapacitated without powers of attorney. Why is that a horror story?
Kelli King-Penner Guest 01:07
So I guess one thing that I encounter with people doing estate planning allows a lot of times people just think about it in terms of assets. They think, okay, well, it'll be easy, I'll just make sure things get from point A to point B when I die. They don't really think about what happens if they get sick and if they have nothing.
01:23
That's when we really have loss of control problems and most people don't want to lose control of their autonomy, or control of their independence, or Fear of losing control and it ending up with someone that they would not have picked. So when we're in a situation where someone does not have powers of attorney and something happens, the family is often in turmoil. They don't know what they're supposed to do, absolutely. They don't know who has authority over things, so that can really put everything Into a really scary situation.
Bob Mannor Host 01:57
And it might be that nobody has that authority, which is even worse, because now probably what we're gonna end up having to do it's run into court right, and that's the other thing that scares people.
Kelli King-Penner Guest 02:05
There are so many guardianship horror stories we could probably do a whole episode on hhings that happen in guardianships and conservatorships that people just simply would not want. But really Not having those estate planning documents are hurting you or putting your family in a bad situation, because those are the people you love and trust and you want them to be able to help you if you can't. So really circumstances where we have that, or maybe even circumstances we're not able to execute those, like you said, we're looking at court, which is a whole other bag of tricks.
Bob Mannor Host 02:35
So how old should you be in order to think that you should need a Financial power of attorney and a healthcare advocate?
Kelli King-Penner Guest 02:43
anybody 18 years and older.
Bob Mannor Host 02:45
So I don't know if you were surprised by that answer, but the thing is, anything can happen any of us and so you're basically saying that you think that you're never gonna have a situation where you got sick, that you got in the car accident, that you had a stroke, that you had a brain bleed, that in as you get older. Something that happens to a lot of older folks is Sudden onset dementia, that we call delirium, that can happen overnight, and so so when do you get the power of attorney? After you get sick or when you're healthy?
Kelli King-Penner Guest 03:16
Ideally, you want to be as proactive as possible. I mean, there might be circumstances where you are sick and still are able to execute it, but why toe that line? You want to be as proactive as possible in making sure that you are secure in, in your team that you've built or the people you're relying on to make sure that they can take care of you if you can't take care of yourself.
Bob Mannor Host 03:35
So I know this is for some of the listeners they made. This may sound like a silly question, but just to make sure we're on the same page. When you say power of attorney, what does that mean? Are you giving power to your attorney?
Kelli King-Penner Guest 03:47
It's usually not giving the attorney, although there are some circumstances that people do that. You're appointing somebody that you love and trust that if you can't do a certain activity and we're typically talking about Managing your assets, so your financial assets and making medical decisions those are two separate types of powers of attorney. But you're not giving a power of attorney to us. You're naming someone that you trust that if you can't do it, that's the next person in line that you would want to stand in your shoes and be your advocate or make sure Things are taking care of for you and if you're giving somebody power of attorney, do we have to worry about, like the Britney Spears situation where she didn't have control over her own decision-making?
Bob Mannor Host 04:26
If you give somebody power of attorney, do you still have control over your own decision-making?
Kelli King-Penner Guest 04:30
Yes, you still have control over your own decision-making and you still have the ability to update and change those powers of attorney for as long as you are able to or revoke them.
Bob Mannor Host 04:37
Yeah, so you're not giving up anything, whereas guardianship was Britney Spears, right, and?
Kelli King-Penner Guest 04:44
guardianship. So is that court process that we talked about. It's much harder to back out of those guardianships as we saw with Britney Spears, those guardianships and those conservatorships, than it would be to have a well maintained estate plan.
Bob Mannor Host 04:56
All right. Next Halloween horror story for estate planning Adding kids' names to assets that's something that I know a lot of people did. I know my grandparents did it and a lot of other people have done it. Why would that be a horror story?
Kelli King-Penner Guest 05:11
So this is spooky on several levels. So in a former life I used to do a fair amount of debt or creditor stuff as well. Whenever we are naming or adding people to our bank accounts, you're exposing your stuff to their potential liabilities, and it could be their fault or it could not be their fault. You have a kid that forgets about paying their credit card, or they lose their jobs and they have a judgment that comes against them. A creditor can come after any asset that that person's name is on. So that is your bank account, and your son or daughter that you added on for convenience purposes is going through a particularly challenging time. You're opening up your stuff to their potential problems, so that's something we always want to advise against. That there are better ways. It is an answer to them getting access. It is not the best answer.
Bob Mannor Host 06:03
It is rarely a good answer. I can't talk about the four D's. What if the person you put on there, your child, goes through a divorce, death, disability or what's the fourth Debt? Yes, that's the worst one. So Kelly talked about debt. So the kid's debt becomes your debt because you put their name on your house, they put their name on your bank account. But what if they go through a divorce? Well, now that in Michigan it's considered theirs partly too, because they're on there as an owner of the account or an owner of the house. Same thing with death. Well, a lot of people die in the wrong order.
06:42
Disability, or what if their spouse or somebody in their family has medical bills and they now have debt? Medical bills is one of the biggest debts that we face out there. The other reason is sometimes it can cause serious penalties. So if you do get sick and we need health benefits to pay for your care, they might deny you health benefits because you added your kid's name to the deed to your house or something like that. There might even be some tax considerations where the kids are going to end up having potentially pay different taxes, whether it's property taxes or pay more in taxes capital gains taxes.
07:16
you know different things, so it's just never a good idea to put your kid's names on assets. It's there's very, very limited circumstances where that makes sense.
Kelli King-Penner Guest 07:24
And I found to you that there's a lot of unintended consequences besides the things that we named as well. Chances are it's not falling through completely with your estate plan and it can have a lot of unintended consequences on the person that you're adding to that account. A lot of my contested probate litigation came from this kind of setup where mom and dad had several kids after they both passed away. They had one that they wanted to be the executor, so they put their name on everything. What that caused a lot of strife between them and their siblings because legally, that person owned everything and the siblings had no guarantee that their inheritance that they felt like they were entitled to was actually going to be distributed. So I got dragged into court on all of these different things for this simple trying to make it easy approach, which really caused a lot of chaos on the other side.
Bob Mannor Host 08:13
So the next two estate playing horror stories involving real estate. The first one is do it yourself deeds we see this every week, at least bad, poorly prepared deeds. So talk about do it yourself this has become a favorite topic of mine.
Kelli King-Penner Guest 08:30
So deeds, I always say, are deceptively simple in what they look but they're not simple in their execution. The quickest way we say in our office to quit commit malpractice is to do a poor deed. So if attorneys sometimes mess these up, imagine how often people that have no legal know how are actually causing more chaos with it. With real estate, you have to be very, very specific in your transfers and how the property is owned. There is literally legal foundations going back to like surf them England but control some of this stuff. So we have to pay attention to what we're doing with those transfers. A lot of times I'm seeing transfers go back and forth. We're splitting titles, so we're splitting who owns that property. We think we're doing one thing. We're doing something completely different. Easily every week I'm looking at a deed and usually making some kind of recommendation to correct it, sometimes as a simple correction. Sometimes that's a really expensive correction, depending on what's gone on.
Bob Mannor Host 09:33
Frequently a deed will mean completely different things based on one, two or three word difference easily.
09:40
And so there is, for we'll just give you a couple of examples. One of the there's two Common things joint tenants or tenants in common. So if and I've seen deeds which were improperly prepared that said joint tenants and common, that's not possible, that's a contradiction in terms, and so those types of terms, or even the word spouse adding the word spouse makes a huge difference is how that deed is going to be interpreted and can cause all kinds of problems, all kinds of court work, all kinds of other things.
Kelli King-Penner Guest 10:06
Yeah, so you really want to be specific when you're doing that and get good legal advice. That's right.
Bob Mannor Host 10:11
And not doing yourself. Frankly, it's something that seems like because you can probably get a form from your county or from you know I used to say office depot, but I think you can buy legal forms at home.
Kelli King-Penner Guest 10:22
You can Google a real estate and get something that's close. It doesn't mean that you should. It's kind of like doing at home surgery. I wouldn't advise it.
Bob Mannor Host 10:31
All right, so the next one is ladybird deeds. So ladybird deeds are very bird deeds, are very popular, even with lawyers. But we have opinions about ladybird deeds because, well, let's talk about why is ladybird deeds a horror story.
Kelli King-Penner Guest 10:45
So ladybird deeds are a very specialized tool in your legal toolbox. They have to be done very intentionally and they have adverse consequences when they are done poorly. So a lot of times people use ladybird deeds which, for those that don't know about ladybird deeds, ladybird deeds think of it as like a beneficiary designation for your house. That's not exactly accurate, but it's fairly close. When you're doing ladybird deeds, a lot of times people are doing it as a way to avoid maybe doing some estate planning. As a trust they're wanting to say you know, if something happens to me, it goes to these people, but if this condition happens, then it goes to that. That's a trust.
11:25
What you're explaining of You're trying to do too much in a real estate transfer. That is also public record, by the way. Instead of doing all of those contingencies and making sure that we're avoiding probate, there are better ways to execute it. One of the biggest problems that I see with lady bird dates is when they're trying to get it to multiple people and, depending on how that is titled and depending on how well those people get along, you might have more issues than if you actually had met with an estate planner in the first order, or if people die in the right order, so we assume that the people that we're leaving it to are going to be alive when we die.
Bob Mannor Host 12:00
We can't make that assumption. The thing about it is we have pretty much a hard and fast rule. If somebody wants a lady bird deed to go to more than one person, we're almost always going to say no, because we've seen so many problems with it that if you think about it, it sounds good. When you say that it's like a beneficiary deed where you're just putting a beneficiary, oh well great, I have life insurance and I put multiple people on the beneficiary. But cash is a lot easier to divide up than a house. It's not where we can split the house in three ways and say, okay, you get the basement and you get the. It doesn't work that way and so it gets all kinds of complicated, and there's just really good reasons.
12:40
Will relate a matter that we worked on where we did not prepare the deed. We would have never prepared this deed, but it went to. It was from mom to her child and since her other child had passed away, to her deceased child's two children, so it inevitably ended up in court and we called the lawyer that was representing the other side, and the lawyer was an experienced real estate lawyer and his position was oh, every time I see a lady bird deed, I assume we're going to end up in court. All lady, I know he was doing it from a standpoint of people only come to him when there's a problem typically. But his position is if it's a lady bird deed, it's very likely to end up in court.
Kelli King-Penner Guest 13:18
Yeah, lady bird, deeds are great opportunities for real estate lawyers.
Bob Mannor Host 13:24
Yeah, next one, the kind of fits in the same regard as do yourself deeds and sometimes lady bird deeds is online or fill in the blank estate planning forms.
Kelli King-Penner Guest 13:34
Yeah, so I never recommend ever filling out a form that you can find online for your estate planning. There are a lot of services out there, too, that are offering, you know, quick and easy estate plans. Here's the thing with that You're not getting any real legal advice out of that. Real estate plans should be designed specifically to them and their family's needs, and you're just not getting that level of service or that level of customization with an online form. Your care of yourself, your care of your family, your care of your nest eggs should not be left to online forms, because that's not what you would expect for your loved ones. You want to make sure that they're getting that high level of service, that high level of dedication that we would want, you know, for our children, for our families, and you're just not getting that level of service from an online form.
Bob Mannor Host 14:26
Just think about it this way You've spent your whole life working hard, saving some money, putting some money away, paying off your house, doing all these things to leave it to chance. I'll give you a couple of quick examples. I remember the commercial used to go beyond the radio and they talk about how Sammy Davis Jr had a famous person who had lots of money unfortunately did a fill-in-the-blank form will, and they were talking about it because they were the company that he bought the form from, and they said, oh well, the court said that this was valid and enforceable. Which is the problem, because the whole point was it had gone to court, it was had been in court for two years. Everybody the spouse, the first spouse, the second spouse, the kids, the cousins, everybody came out of the work, everybody had lawyers, and it went to the courts for a couple of years to fight about it, to finally say, oh, now it's enforceable.
15:18
Was it what Sammy Davis Jr really wanted? We don't know that. We don't know whether he accomplished the goals that he wished to accomplish. We know that this form, which was probably not all that well filled out, was going to be enforceable for better or for worse. And so then there's a million stories of people that should have known better. Celebrities that didn't do proper.
Kelli King-Penner Guest 15:43
Celebrities are probably one of the biggest offenders of not having a state plan, when they probably have the most monetary value to lose.
Bob Mannor Host 15:51
Right, all right. So let's go on to we talked about we've kind of addressed this but assuming that your will because a lot of people say, oh, I just need a will right? Assuming that your will means that you're not going to go through probate.
Kelli King-Penner Guest 16:04
Right what I always tell people a will is probate. So if you're relying on will and we have a lot of different ways that we explain this in our office we use a bunch of silly little concepts to kind of break this down. One of the ways that I also explain it is like think of your will as a letter to the judge. It means nothing unless the judge says it means something. So in order for your will to have any authority after you die, it has to go through a probate process, which means it has to be presented in front of the court. There's filings that have to be done. It requires usually a hearing or a judge to look at the paperwork and say that this is okay. So by having a will is your main estate plan document to handle things after you die. That is relying on that probate court process and it only also applies to specific assets. So it has to be in your probate estate when you die.
16:54
Yeah, good point things that have beneficiary designations on it, things that have Owners on it, those don't end up in probate. So that can even create more of a mess for your family trying to sort through everything that's going on. But if you have a will and that's what you're relying on for your wishes or your statement of wishes of what happens after you die Know that that is a probate court process. That may or may not work, depending on how you've aligned everything else.
Bob Mannor Host 17:17
Well, and that's a very good point and like kind of leads into our next point. So before we get into the concepts of trust and where we want to go there, I did want to mention that occasionally, when we say this, that a will means probate, will have somebody say but my mom had a Will and we didn't, I'm sure she didn't go through probate. That means the will had no effect, the will had no legal Effect had.
Kelli King-Penner Guest 17:38
No, it had there was nothing to broke.
Bob Mannor Host 17:40
Probate yeah that there was that the mom had either put the people's names on things, which is very dangerous. She had added people to deeds, maybe. Maybe there's a lady bird deed, maybe there was a beneficiary designations.
17:50
There was a deed in a drawer that happens to yeah, I call it hodgepodge, meaning there's a different plan for each thing. And then the problem is when things change which they inevitably do, because we get older, we get new assets. There's not an overall plan to say everything is taken care of. When we do a hodgepodge which even a lot of lawyers will will present with this they'll say, oh well, we'll just have beneficiaries on this and we'll have a lady bird deed on this and we'll have a joint owner on this. But then things change and you get new things, or you know Somebody dies or whatever, and those things don't get updated, whereas with a trust, you update one thing and everything gets updated.
Kelli King-Penner Guest 18:24
Well, in a hodgepodge, plan works as well as everything is smooth and easy. Right kind of like building your house of paper machete. While it's smooth and good weather, there's no problem. The minutes the rain starts coming down, that's not gonna hold up.
Bob Mannor Host 18:36
That's a good analogy, and that's the whole point is that those types of plans are designed to say, okay, this is if I die tomorrow? Well, guess what, even though it might be Halloween soon, you're not gonna die tomorrow, and so that's the idea. We want to have the idea as a plan that is going to change with the changes in your life and that change with as you get acquired new assets. Or there's been deaths in the family, or things went badly, or somebody got sick or somebody became disabled, all the things that May and do happen. We need to kind of have thought of that and not just plan for the way things are exactly they are today, which leads to the next question. So we did talk a little bit about trust. So, if you have a trust, one of the big horror stories for people that have trust is not Aligning your assets with your trust. What does that mean aligning your assets with?
Kelli King-Penner Guest 19:24
your exactly so, if you've done the good thing and you've gone and gotten some estate planning and you have a trust. A Lot of people are often confused by how the trust handles assets. What we always tell people is your trust does not identify your assets. Your assets identify your trust, that being that all of your assets have, or most of your assets have, something that is referred to as a title, meaning that there is a record of who owns that asset. In Order for your trust to actually work because you got to think of your trust is like a set of instructions or a game plan. This is what happens if certain circumstances arise. In order for that game plan to be Executed, our stuff has to work with our trust. So we refer to that process in our office as an asset alignment process, meaning we've done the good things, we've gotten the documents. Now we actually need to finish the other part of the plan, because it's not a state documents, it's a state planning.
20:19
Yeah we want to make sure that our stuff works with our trust, so either it ends up in our trust during our lifetime for certain appropriate assets, that's. The other thing we have to look into is how we do that asset alignment process Whether it's via beneficiary designation or a change of owner is really dependent on the type of asset. It is Um and requires some thoughtful consideration for that. So that's another whole part of estate planning that I think a lot of people miss out on. Sometimes they think documents, but they don't think about doing the other part of that and that's really something that we try to focus on in our office Is that, yeah, at the signing appointment, congratulations, you're farther than most people, but we're not done yet. There's still some things we need to do. So that's how we actually have to make sure all this stuff works, because you can spend all that money and the scary thing is you could have a very expensive paperweight that means nothing, unless we do that last part.
Bob Mannor Host 21:11
Yeah, very good. And so that leads right into our second to last Uh estate playing horror story, which is never looking at or updating your estate plan.
Kelli King-Penner Guest 21:20
Yeah, your estate plan is not a set it and forget it type of thing. Unfortunately, as Circumstances change either circumstances that are in our own life, that are decisions that we make in control, control Things that happen to us or laws that change we want to nurture this estate plan. This is a plant. This is not a sculpture. This is something that we want to tend to and make sure that we're revisiting on a regular basis, even if it's something that doesn't even think is a big deal. I mean, I know we just did our annual meeting for our clients in our office to talk about the things that they should be looking out for. Have our assets changed? Do the people that we have named in this document are they still the appropriate people that we would want to have picked? Does our planning incorporate our current health state?
Bob Mannor Host 22:05
Is this the type?
Kelli King-Penner Guest 22:05
of planning that we should have given our diagnosises, especially if there's a circumstance of dementia, alzheimer's. That's something that we need to maybe look and make course corrections or adjustments to, absolutely If anything has changed with our family's health, so if there's disabilities or anything else that has popped up. We bought a second cottage and we need to make sure that that's in the name and the trust. This is something that we need to nurture. Also, the legislature likes to change laws quite frequently and that has an impact on your estate plan, whether we like it or not. I always tell people that if I can control what the legislature would do, my life would be easier. But I can't. So that's something I have. A responsibility is to update people when there are major changes in the law. That's an area that people really need to keep out for and have that ongoing relationship with the professionals that we trust.
Bob Mannor Host 22:55
And that's the. You mentioned this, but I want to emphasize the point. So we do an annual meeting for our clients. What do we mean by that? Well, it's an annual check-in. You don't have to pay us, you don't have to come in and see us, necessarily, but we want you to take an hour out of every year. So you have 365 days a year, 24 hours in each day, and we want one hour out of every 365 days. I don't know how many hours that adds up.
23:19
A lot To look at what you have, and then we walk you through whether or not you might need to think about making some updates, and so we do this. Every year since COVID we've sent videos out. We sometimes we might do it in person and then take a video so you can either come to the group meeting or but the bottom line is it's a mechanism to make sure that you have an easy way to update it. The vast majority of our new clients that aren't out of our clients yet come in with existing estate plans. They had a well done, they had a trust done, but for some reason they're not going back to that lawyer, or that lawyer might have retired.
23:56
They moved away, and so what we have a mechanism in our office is to make sure that not only are you getting your documents, but you have a mechanism to make sure that they stay up to date. Up to date for changes in the law, changes in circumstances, changes in your finances. Here's one shocking one that we were talking about at the annual meeting that we just recorded, which was if your bank merged and changed names, guess what you might have to do something. We've had this happen three or four times recently, where somebody had a perfectly good estate plan. They had all the assets aligned. The bank merged, it changed names and the new bank says no, we don't have any record of that, that beneficiary designation or whatever it is. So that's why we have this mechanism to remind us every once in a while. It may take a little bit of effort, but it's worth it. It's worth it to make sure that things are aligned properly, that the documents are up to date, those types of things.
Kelli King-Penner Guest 24:49
Yeah, it's just like you change the oil, check the oil on your car Same thing. You just want to check and make sure that what you have is still maintained.
Bob Mannor Host 24:56
Yeah, that's a great one, changing the oil. The other one I like is when people say, oh well, I'm fine, I have a trust. Well, how old is trust? It's 20 years old. Oh well, that'd be like going to the doctor and saying, well, I don't need to go to the doctor, I'm fine. Well, when was the last time you went to the doctor? I went to the doctor 20 years ago. I must be fine, because they told me I was fine.
Kelli King-Penner Guest 25:13
It's kind of the same thing. I went the one time. I'm good.
Bob Mannor Host 25:15
Yeah, all right. Last horror story, and that is not planning. If you have an heir, meaning a child who has special needs or disabilities, why is that important and why do we have to make sure that we get planning for that?
Kelli King-Penner Guest 25:28
So that's really important, because there are a lot of circumstances where somebody who has special or supplemental needs or has a disability, where there are needs based government benefits. And there are so many different kinds of needs based government benefits it can be sometimes hard to pinpoint exactly what they're on, but there are certain ones that can penalize you to a certain extent, if you get an inheritance and it's really easy to plan for that and make sure that the disabled heir can still reap the benefit of everything that you want to leave them, so you can still increase their quality of life.
26:05
Make sure that they still have everything that you wanted them to have. Without losing their medical benefits or financial benefits, but in a way that doesn't hurt their benefits, especially since a lot of times, what we're talking about with government benefits is a health insurance benefit.
26:18
And that cost of losing that can be very, very monumental for someone. So there's really easy ways to plan for that. We just need to look at it and maybe make some tweaks to the estate plan or add a specific thing, and there's a lot of different estate planning tools we have for this. I think one of the harder things that I have to encounter with people sometimes is used to be, or back in the day. One of the recommendations was well, you just have to disinherit that individual and you can't leave anything for that. That is absolutely not true. There are really great tools and mechanisms now to really enhance the quality of life for our loved ones with special needs that we don't have to resort to that.
Bob Mannor Host 26:57
And you also. A lot of people come in and they say, well, they have a brother, I'm just gonna leave him to the brother, and they promise to take care of them. So what happens if something happens to brother? It doesn't work that way. And what if brother gets into financial trouble? What if brother gets divorced? Now the money that was supposed to go to your special needs child gets tied up in this divorce. Or what if they die and it goes on to their kids or their? There's just so many things. You don't just leave it to another person. We've got to set this up right.
Kelli King-Penner Guest27:25
Exactly, and that's often the thing that I'm correcting with the state plans as well. But yeah, it really is something that we should look at and that disability might happen from birth or it might happen later on, and that's one of the reasons why we really want to look at and really get some good advice. And simply because somebody is on quote unquote, disability doesn't necessarily mean that they need all of these extra planning tools, but you should at least get good advice on whether or not that's a good idea.
Bob Mannor Host 27:51
Right, well, excellent. Thank you for joining us, kelli, and participating in our special on the nightmares, or horror stories, of estate planning and how to avoid them. So if you enjoy this podcast, please consider subscribing. At any place that you listen to podcasts and we appreciate your listening. Thanks for listening.
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