There are many important topics related to estate planning that are worth discussing. Some of the most important include:
The importance of having a will: A will is a legal document that outlines how an individual’s assets should be distributed after their death. Without a will, the distribution of assets may not align with the individual’s wishes, and the legal process can be costly and time-consuming.
Power of attorney: A power of attorney is a legal document that allows an individual to appoint someone to make decisions on their behalf in the event that they are unable to do so due to incapacitation.
Living wills: A living will is a legal document that outlines an individual’s wishes for healthcare and end-of-life decisions in the event that they are unable to communicate those wishes themselves.
Trusts: A trust is a legal arrangement that allows an individual to place assets in the control of a third party, known as a trustee, for the benefit of a beneficiary. Trusts can be used for a variety of purposes, including tax planning, asset protection, and providing for loved ones.
Probate: Probate is the legal process of distributing an individual’s assets after their death. Understanding the probate process and how to avoid it can be an important aspect of estate planning.
These are just a few examples of the many important topics related to estate planning. It is important for individuals to understand these topics and to work with an experienced attorney to ensure that their assets and affairs are properly organized and protected.
If you don’t have the basics in place you could be in trouble. These are the basic foundational documents critical for any estate plan.
Greg McIntyre Estate Planning & Elder Law Attorney
As an estate planning attorney, I have had the opportunity to work with numerous individuals who have inherited significant sums of money. While these lucky inheritors may be thrilled at the prospect of a windfall, they also face the challenge of managing and preserving their inheritance.
One such lucky individual was Jane, a young woman who inherited a small fortune from her great-uncle, a successful businessman who had no children of his own. When Jane came to me for help, she was overwhelmed by the size of her inheritance and wasn’t sure what to do with all the money. Working with Jane, we were able to develop a financial plan that allowed her to invest her inheritance wisely and secure her financial future. We also worked with Jane to create a will and other estate planning documents to ensure that her assets were protected and distributed according to her wishes.
Another lucky inheritor was John, a young man who inherited a large sum of money from his grandfather, a self-made millionaire who had built a successful business from the ground up. John was excited about his inheritance but was also concerned about preserving and growing his wealth. Working with John, we were able to create a financial plan that balanced his short-term needs with his long-term financial goals. We also helped John set up trusts and other estate planning tools to protect his assets and ensure that his wealth was passed down to his heirs according to his wishes.
But not all luck stories have such happy endings. Take the case of Emily, a young woman who inherited a large sum of money from her aunt, a successful author. Emily was thrilled to receive the inheritance and was eager to use the money to live a lavish lifestyle. However, she quickly discovered that she had no financial skills or knowledge, and she ended up squandering her inheritance on frivolous purchases and risky investments. When Emily came to me for help, it was too late to salvage her inheritance, and she was left with nothing but regret.
These stories illustrate the crucial role that luck can play in our lives and the importance of being prepared to manage and preserve an inheritance. Whether you are the recipient of a sudden windfall or the inheritor of a long-planned legacy, it is essential to have a solid financial plan in place and to work with a skilled estate planning attorney to ensure that your money is working for you and providing for your future. With the right planning and a little bit of luck, you can make the most of your inheritance and secure your financial future.
Schedule your FREE consultation today: mcelderlaw.com/scheduling or Call: 1-888-999-6600.
Greg McIntyre Estate Planning & Elder Law Attorney
Greg McIntyre: Hi. I’m Greg McIntyre here with my law partner Brenton S Begley for the Elder Law Report
Greg McIntyre: we’re going to talk about something that is complicated. But extremely important probate. And misunderstood probate. and and trust administration Brenton I hear all the time, but it’s come to me and they say, you know what, Greg Don’t worry about it. I don’t have to go through probate because I have a will to which I have. A very amount of responses to that. You will go through probate. And so it takes me to get a while to get them there. But that probate is the process right by which your will passES. This assets there is no other process. Your will isn’t worth anything until it’s actually submitted a probate and somebody qualifies as an executor.
Brenton Begley: Yeah, yeah, I like to think about it this way. So if you pass away, The things that you have are your estate. Now, some of those things can be pre-arranged to pass immediately to a beneficiary, that’s named to them. But otherwise,…
Greg McIntyre: If?
Brenton Begley: somebody has to figure out what to do with those assets. And that somebody is the court. And so when the court, when someone passed away, the court is searched jurisdiction over those assets, that don’t already have some free arranged beneficiary, okay? And there’s many ways to do that, but the court asserts jurisdiction and then they appoint somebody to act on the behalf of the court as an officer of the court, and that person is the executive. And just because you name somebody as executor in the world does not mean that they are the executor until they are appointed by the Court until they swear they take that oath right? And on the Bible and the air and you know.
Brenton Begley: They got to take that out and be appointed, okay? And then you begin the process of probate. The process that is necessary for probate assets and the title for probate assets that we passed from the decision to the next generation, right? Here’s another thing. You know, we talked about passing title to assets and that’s a big deal. But there’s also other things that need to happen through the probate process depending on the manner in which the person passed away. If there’s pending litigation before that person passed away…
Greg McIntyre: It.
Brenton Begley: if they’re old contracts, right? You might have a business that needs to be ran. You might have money owed. You you might have carried back, a mortgage on a property that you sold you might have been you know someone might have caused that individual’s death and are liable for wrongful death or personal injury. The probate process is absolutely necessary in interval to making sure that that money contracts.
Greg McIntyre: It.
Brenton Begley: Whatever it is, lawsuit is continues on it. You know, the money is obtained or you can file on behalf of the estate, some type of legal action to make the estate whole for personal injury or wrongful death.
Greg McIntyre: Absolutely. And You know, So the will worth really nothing while you’re alive, doesn’t do anything. The executor can’t do anything for you. The probate process serves to change, change title to assets, that otherwise don’t have a way to change title, like a beneficiary or something, or things in trust, right? And we’ve already talked about in a previous elr about The estate of confusion the different types of the states,…
Brenton Begley: Right.
Greg McIntyre: how you would divide up your estate into probate trust and maybe outside of both of those. And we also talk about avoiding probate all the time but that’s not necessarily that is the common theme is people want to avoid probate.
Greg McIntyre: but really, if you’re a state as large enough, Probate might be the perfect place to handle the transition of assets. What do you think?
Brenton Begley: Yeah. I mean, at some point, you might want to start routing everything through the probate process, for the benefit of that probate process because you have finality of the court order, you have the accountings that must be given to the court and it’s ensuring that everything is routed to that process. So, it goes through the terms of that very important legal document that you put in place.
Greg McIntyre: You.
Brenton Begley: Your will, you know, and that’s something that I like to point out to people even without maybe a larger estate, you know, If you name beneficiaries on a life insurance policy, it’s gonna go to them immediately upon your death and they’re just gonna get the whole thing with no stipulations. If I leave, you know, a 500,000 life insurance policy behind, someone’s gonna get 500,000.
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Greg McIntyre: If?
Brenton Begley: And I can’t set any type of stipulations on that. I can’t control what happens with that money, I can’t ensure that money goes to a certain benefit. I can’t ensure that money is used for education, maintenance support of that,
Greg McIntyre: So you can put, you can put trust like a trust in a wills, right? Testamentary, trust.
Brenton Begley: Yeah. Yeah. So, you know, I might have a life insurance policy that I want to leave to my oldest child, right? And if I pass away, I don’t want that child, you know, to get that at 18, which even 21 and just blow that money. Maybe I want that money to be routed through that important legal document that I put in place that can set stipulations.
Greg McIntyre: Right? But those things are written in the will and…
Brenton Begley: Maybe it goes and trust for them upon my death and stays in trust for certain amount of time. The only getting when they’re 35 or get married or whatever, right?
Greg McIntyre: happen coming out of that, courtroom that court process, the probate process, right?
Brenton Begley: Exactly the probate process, gives it, you know, the salinity of having that court order to make sure that those assets are passed correctly to the correct people through that will you know, that will you set down? And and you know it’s been a lot of time. Making sure it’s very detailed as to what your wishes are gonna be. And that can same thing. Can happen through a trust too during your life. So, you know, will can create a trust at your death is called the Testamentary Trust because it’s created under the last one testament. You know by virtue of your death. Okay. And then you have a trust that is a living trust. That means it’s you know, created during your life and that trust can do the same thing. However, you know, how about this, the trust can be a really good thing for people for certain You know.
Brenton Begley: Certain factors. Okay? But at a certain point you may there may be a benefit to route assets through the probate process that’s not the case. With some of our clients who may face, you know, large long-term care bills or large Medicaid recovery, We want to avoid probate. However, for certain ones of our clients who don’t have that issue, routing things through probate can be a good thing…
Greg McIntyre: If?
Brenton Begley: because it forces, you know, the parties Meaning the executor The beneficiaries to go through this process where the court can, hold everybody accountable and make a final decision as to how things are split up.
Greg McIntyre: And keep talking about a court order. Like, you know, I can rely on the finality of that court order the official on this, the officiality, I don’t know. But really we have the officiality in this we really have Court oversight from beginning to end. And that’s you can take comfort in and…
Brenton Begley: That’s right.
Greg McIntyre: probate is you have court oversight starting from the very beginning. And different checkpoints with accountings. you know, your executor has no choice really but to abide by the exact rules of your will and…
Brenton Begley: Right. Yeah.
Greg McIntyre: from heading to end until the court, closes it out
Brenton Begley: And, you know, there’s, there’s benefits to that. Certainly, some people want to avoid that. And sometimes in the best interest of the parties to avoid court, oversight to have, you know, to avoid unnecessary delay for assets to pass, especially if it’s somebody who’s really depending on that inheritance to make sure that they can maintain the same quality of life, things like that, you might want to pass to them immediately. However, that’s really not a concern, especially if it’s a large enough of where you want to make sure that, you know, if especially like a state taxes are a fact or something like that, and you want to make sure that you’re a state is handled correctly by a professional where, there’s not going to be any infighting, any prolonged litigation afterwards and that, you know,
Brenton Begley: you know, the the ability for everybody to check off at every step, right? The court to check off at every step that you’re doing things, right? So you don’t get, you know, three months into the process and realize, Oh, you know, we messed up at day, you know, 20, and now we have to rectify it somehow, right?
Greg McIntyre: And a lot of times people are coming to us to try to clean up those messes and fix it. Get in in the middle much easier.
Brenton Begley: Right.
Greg McIntyre: If we can sit down the terminology assets and develop a plan, to probate the state, and handle it from the beginning to end as efficiently as possible. Right. So So that’s probate.
Brenton Begley: Right.
Greg McIntyre: I’ll tell you what. I think then next week we should separate out and trust administration into its own show. And that’s…
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Brenton Begley: Yeah.
Greg McIntyre: what we’ll do, probate in itself, can be a beast. It can. you know, it’s very Meticulous, as far as.
Greg McIntyre: Things that have to be done in a certain order. The timing of things is very important and It’s also somewhere where if you don’t know…
Brenton Begley: Here.
Greg McIntyre: what you’re doing, you can get in a lot of trouble. And what I mean is, if you’re not filing certain things, and the right order at the right time, you will get a visit from a share. Serving you with a show cause motion to do whatever the court needed you to do. Yeah, and…
Brenton Begley: Yeah.
Greg McIntyre: and that’s and that’s not a fun situation to be.
Brenton Begley: Yeah. And you know, we We talk a lot about, you know, avoiding court oversight and things like that.
Brenton Begley: And then it’s funny because you see some people trying to recreate the desire to have an oversight, have a very solemn process that must be gone through whenever they pass away to make sure that things are split correctly. And they,…
Greg McIntyre: It.
Brenton Begley: it may try to kind of go, you know, through all these steps to make sure there’s, you know, multiple trustees or beneficiaries can have this right to, you know, see an accounting or something like that. And then the day it’s like Well you might as well just have it all around it through probate anyway, you know, and really at a certain point there it could be in the best interest of the estate and the heirs to go ahead and have it routed through probate and rely on the will rather than trying to have. As an overall goal avoidance of probate, you know, that doesn’t apply to everybody. I think you have to be at a certain asset level for that to really be the case,…
Greg McIntyre: Here.
Brenton Begley: but it can certainly be helpful at that, high asset threshold.
Greg McIntyre: I do not disagree and you know let’s talk a little bit more about trusting and trust administration specifically next week on the Elder Law. Report Brenton, I appreciate you being with me today on this great episode of the Elder Law Report
Greg McIntyre Estate Planning & Elder Law Attorney
The Legacy of a Grandmother’s Love: A Story of Estate Planning and Opportunity
As I sat in my dorm room, staring at the letter that had arrived that morning, I could hardly believe what I was reading. My grandmother, whom I had always been close to, had passed away suddenly, and in her will, she had left me a generous sum of money, to be used for my education.
I was overwhelmed with emotion as I thought about all the time I had spent with my grandmother, and all the sacrifices she had made for me. She had always been there for me, cheering me on and supporting me in all of my endeavors. And now, even in death, she was still looking out for me, providing me with the resources I needed to succeed.
I knew that my grandmother had always been a careful planner and that she had spent a lot of time and effort on estate planning, making sure that her affairs were in order and that her loved ones were taken care of. And now, her foresight and dedication were paying off, as I was able to use the money she had left me to pay for my college education.
As I thought about the opportunities that were now open to me, thanks to my grandmother’s love and sacrifice, I knew that I had to make the most of them. And so, with a renewed sense of purpose and determination, I threw myself into my studies, determined to make my grandmother proud and to honor her legacy.
And as the years passed and I graduated from college, I knew that I had my grandmother to thank for the doors that had been opened to me, and for the love and support she had always given me. For it was through her careful estate planning and her unwavering dedication to her loved ones that I was able to achieve my dreams and to make the most of the opportunities that life had to offer.
Let us help open doors for your loved one. Schedule your FREE consultation today: mcelderlaw.com/scheduling or Call: 1-888-999-6600.
Greg McIntyre Estate Planning & Elder Law Attorney
Greg McIntyre: Hi. I’m Greg McIntyre at McIntyre Elder Law, welcome to the Elder Law Report and today we’re going to talk about Medicaid liens. How long-term care Medicaid or special assistance pays for nursing home or assisted living care can attach a lien to your estate, what that means? Because I hear all the time Brenton. My law partner Brenton Begley has joined me. Hey Brenton, how are you doing this morning?
Brenton Begley: Fantastic.
Greg McIntyre: Good. So I hear it all the time. You know, I don’t want Medicaid to take my house, I don’t want the nursing home to take my house but it doesn’t exactly work like that. And I want to clarify exactly how it does work. And so Brenton can Medicaid just if they come in and pay for nursing home care for me and hopefully not anytime soon, can they just take my house?
Brenton Begley: Not they have to number one, they can’t take away your living at all. And then number two, they gotta wait till after you pass away. There are a few exceptions even then you know if there’s a spouse still living in the house there’s a disabled child still living in the house or the Medicaid debts under $5,000 or if there’s some type of undue hardship that would You know, result as, as far as, you know, the folks living in the home, maybe a dependent living in the home, something like that. If Medicaid were to place leaning against the property for sale, the property, something like that but even then the limited to assets that go through probate. So if the home is going through probate, that’s when they can go after the home, but it’s a multi-step process to go after that home. Even then. So the kind of sum that up now, they can’t take the home, just come in to take it, especially not during your life. They have to wait until after you’ve passed away and only then they can only go after the property. If it’s going through probate and none of the exceptions listed before that applies.
Greg McIntyre: So, the three rules of avoiding long-term care, Medicaid lien. A lane associated with long-term care assisted living with our nursing home care. The first rule is to avoid probate with passing your assets. That’s the first rule. So, secondly, how do we protect the assets? Because you know what Brenton? They’re not going to qualify me for long-term care. Medicaid, unless I have two thousand dollars in assets, one house, and one car, right? And how do I avoid Losing my house? How do I hang on to the money? You know, how do I do that? And not taken.
Brenton Begley: Well. Yeah, well, one of the best ways to both avoid probate and help you qualify for benefits to pay for long-term care. So utilize something like a trust. You know, that’s why I trust is such good tools because hey, you know, you can use one tool to accomplish both goals, solve, both sides of the equation if you will. It’s kind of like an algebra problem or just don’t like math. That’s why we became lawyers but we still have to solve these intricate legal problems that are sometimes set up logically like algebra problems.
Greg McIntyre: I love math
Greg McIntyre: I love math I’m good. So yeah.
Brenton Begley: Situation were solving both sides of the equation.
Brenton Begley: Number one, the ability to qualify for care during your life. Number two, the ability to protect the assets even after you passed away. So, Medicaid, or the nursing home or any other creditor can’t come after the property or money.
Greg McIntyre: Sure, sure. So trust can work a ladybird deed on your home can work for the home, right? There’s lots of different ways to solve that problem that puzzle, right? And, and to get that done, right? So let’s say I’ve avoided probate protected, my assets because I have my money in an irrevocable trust where I’m still the lifetime income beneficiary, I can still get income and I protected my house with a ladybird deed right. All of which is allowable under the Medicaid Rules for long-term Care Medicaid. And you know man I’m I feel like I’m set up pretty good. What else do I need to do? I’ve got to apply and get qualified so I’ve got it avoid probate Protect my assets in a way that complies with the benefits program. and thenI have to apply and get approved, right?
Brenton Begley: That’s right.
Greg McIntyre: How do I get approved, If I’ve done all this legal work over here, or there is Medicaid, or that is Department of Health Demon services is DSS, Are they going to know what I did over here? How’s that going to work?
Brenton Begley: Yes, the thing is is that DSS the government, their gatekeepers to the benefit. And they’re not just going to hand it to you on a silver platter. Okay. So they want to make sure make darn sure that you actually qualify and they’re gonna question everything that they could possibly question. So thing is, is that the legal planning is important to make sure you qualify and make sure the assets are protected, but you have to have somebody on your side who can articulate, what’s been done and why you qualify? And why the legal work that’s been done is Medicaid compliant? so that Shakes down to. You know.
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Brenton Begley: What you should do if you’re trying to apply is see an elder law attorney who is knowledgeable on Medicaid applications and have them handle that for you to streamline the process because the timing in those applications are incredibly important. You have a very large facility bill that is coming whether you like it or not and you need to make sure that Medicaid is in place to either pay going forward or retroactively pay the data qualification. And, you know, if Medicates arbitrarily setting that data qualification, they might not cover. Medicaid, might not cover a bill that had been incurred up to the point where you were qualified. So you don’t want to go into the facility incur. A bunch of debt, get Medicaid to pay, but still have a bunch of debt hanging out there even though Medicaid’s paying for the rest. So a skilled attorney who’s knowledgeable in these source of things can help with not only the qualification, not only the protection of assets but, you know, the correct timing.
Brenton Begley: Streamlining of the process. So you get qualified without having to incur, unnecessary medical debt
Greg McIntyre: Exactly. The Three Rules. To avoid long-term care. Medicaid liens. Or any kind of benefit program liens. still keep your assets and still qualify for a benefit to pay for long-term care, assisted living or nursing home care for you or your loved one could be a spouse, could be a parent Is to one. Avoid probate. Two, protect your assets in a way that complies with the Benefit Programs rules.
Greg McIntyre: And three have someone who’s either done. Number two for you. And number one, helped you avoid probate, protect the assets, have them handle the Medicaid application or the benefits application because they know what the plan is. They know why it complies? They chose the simplest most straightforward plan. They know works every single time.
Greg McIntyre: And they’re going to be able to communicate that to a social worker. So they understand it and you don’t have problems with the application. We have an entire benefits department. We have an estate planning department, both of those work together to make sure we avoid probate, protect your assets and get that application in explained and approved. So if you need help with applying for and being approved for long-term care for you or your loved one and you not or you’re not looking forward to losing all your assets or paying all those down to a facility, Give McIntyre, elder law a call.
Greg McIntyre: Call 888-999-6600 or go online to do research because myself brenton other people on our team have written some really, really good articles. If I can, I don’t say so myself and more videos like this that can help you and your family do research and Start knowing where to begin, right? And get that process going. So thank you so much. Brenton Attorney Begley for helping me, put out the three rules of applying for, and getting approved for long-term care benefits today. And we’ll see you next week on the Elder Law report.
Greg McIntyre Estate Planning & Elder Law Attorney
Greg McIntyre: Hi, this is Greg McIntyre with another elder law report and today we have a cool topic, the Estate of Confusion and I wanted to talk about this I’ve just realized and with clients even recently. That they don’t know exactly what an estate is or a lot of people are confused by what is an estate. And the reason I say that versus as an estate planning, and elder attorney. As far as how we view in an estate brenton, what is an estate? What is your estate? Brenton Begley: And my estate is this, a house on rolling hills in the English countryside now. Greg McIntyre: Oh. Is that what it is? Brenton Begley: The state is what you own. It’s what you got, you know, it’s funny too. Brenton Begley: Because like I asked people what they own, That’s one of the first questions, you know, “Hey what are your assets”, and you can phrase that as “what is your estate”, but a lot of people don’t, they do not know what that means. So ask what their assets are. And sometimes they’ll tell me, Oh, you know, I have this home, but it’s owned by the bank, you know, that that always makes me shuffle because banks, don’t own your home, they got a lean against the home, they don’t know, you know. Greg McIntyre: Right. Brenton Begley: And so it’s everything you own. It’s everything that you have a legal, right to, and interest too, whether it’s your, you know, real property, you’re tangible, personal property or, you know, financial assets. Greg McIntyre: Exactly. So when you die, you’re estate is and I try to be really specific about this. Is my state, my probate estate at that point. Brenton Begley: No, your, your probate estate is your probate estate. So, your state is still everything you owned at your death. Everything you own. That’s payable, anything that’s payable to you, anything, you had an interest in any contracts that are due to you any, you know, payments that are due rents needs of trust. Anything you own real personal finances when you die now. Here’s the thing, that that’s the whole estate, okay? The total assets of the estate, then you have you know, from that big pot that we call the estate. There are some assets that are gonna pass outside of probate and there may be some assets that have to go through the probate estate. So it could splinter into the probate estate and non-probate estate assets. Okay, but it all comes from the same estate. Okay. The same set of assets that you had or have ownership in whenever you pass away. So, you know, it makes sense when you think about it in terms of specific assets, if I have life insurance, or maybe have a bank account with a beneficiary on it. Brenton Begley: You know that is part of my estate still part of my estate when I die but if it has a beneficiary on it it’s not gonna go through probate so it’s not part of the probate estate so that’s going to split off and go under that beneficiary, okay? If I have let’s say I have some real property in my name and I haven’t done any type of deed to give right a survivorship have a name beneficiary on it, haven’t put it in a trust where it has been a fishery. That’s gonna go through my probate state and be controlled by my will, if I have a will, if I don’t have a will by the the state. Okay, so that’s how it works. You have the main estate that could splinter off into probate non-probate. Our goal typically is to make sure everything passes that side of probate. So you won’t have any probate statement if you pass away and that, you know, for for many many reasons. Greg McIntyre: so, my probate estate, That’s what goes say through my will which has to go through the probate process. To change title to assets that otherwise don’t have a mechanism to change that title. Brenton Begley: Right. Greg McIntyre: So my non probate estate could be life. Insurance policies IRAs that have specific beneficiaries. Or what about a trust? Brenton Begley: Yeah. You trust State? Greg McIntyre: Would that be my trust estate outside of my probate estate? Brenton Begley: Yeah, I mean it’s another word for anything you have in a trust. Before you pass away. Brenton Begley: If it ain’t in the trust, it’s not part you trust the state. Greg McIntyre: Unless the trust is a beneficiary. Right of a life insurance policy. For example. Brenton Begley: yeah, and that’s a good point because we set those up all the time and I would say It’s kind of like, Schrodner’s trust, right? At the time that you die, you know, while you’re alive. It’s not in the trust. And at the time you die it’s instantly into the into the trust, at that point. So there’s a point in time where it’s not a trust asset and at the same time is the trust asset. But the point of the point of matter is, is that they can still become a trust asset, even if it’s a an asset that you have, that’s part of your full estate. So basically, it’s an estate asset. That does not go through probate but goes into the trust and becomes part of the trust estate. Greg McIntyre: You know, how do I know? Now that I have an understanding of what my estate is, it’s everything I own during my life, that’s my estate. Now, Death. It could be partly probate. Probate Estate, Partly a trust estate partly a non-probate non-trust state, right? The things that are flowing outside of those tools. Greg McIntyre: how to set up my state? So that I can manage it properly during my life and at my death. What’s the best way to do it?
Brenton Begley: Yeah, you know, the best way to do it is to first of all you got to know what you have. And so it’s a you take the approach based on the assets that you have. There’s certain critical point where if you have a certain number of assets, it’s gonna be useful to have a trust and we’ve laid out where, you know, there’s four conditions where it might be very useful to have a trust for people past videos past articles, things like that. But the idea is that anything that you have generally speaking, you want to try to set it up to avoid probate. So that first requires you to look at what you have. A lot of people have the house. A lot of people have bank accounts, a lot of people have retirement accounts. Those main assets can all be set up to avoid probate, whether you go directly to that account, or to that asset, like a house and set that up, individually to avoid probate and go to an individual, like a lady bird deed on a house naming a beneficiary, on an account. Brenton Begley: Or if it’s proper for you and you have the requisite type of assets, number of assets and need for it. You could put it all in a trust and it’s kind of a shotgun approach if you know, having everything into one pot and anything in that pot can avoid probate. If you pass away. So, How you know whether or not something’s gonna avoid probate is essentially whether or not it’s already been pre-arranged to avoid probate. Whether it’s in a trust whether it has a named beneficiary or a joint owner with right of survivorship Greg McIntyre: So, do I also want to be aware of how I set up my estate and can the way I set up my state? Greg McIntyre: Whether I lose assets or keep assets and are eligible for long-term care benefits as I age to pay for assisted living, nursing home care if I need it. Brenton Begley: yeah, so the thing about your estate, whether it’s before you die or after you die, it’s you know, There’s risk to that. Brenton Begley: And to know what how to protect it. You have to know what the risk is. It’s really two- fold, you know, the need for long-term care and probate. First of all, the need it and you see we look at this as an estate planning elder law. Attorney kind of like an algebraic way, right? You guys all both sides of the equation. So you have this possible need for long-term care. I mean, my God, 70% Individuals will need long-term care at some point in their lives. It being tens of thousands of dollars a month. You got a plan for that sort of thing. So you want to make sure you’re a state is protected during your life by planning to make sure that those assets or situated where they’re protected and that you they’re not gonna disqualify you from receiving some type of benefit to pay for long-term care. Then the other side of the equation is that if you allow those assets that you are able to keep that state to go through probate, that’s the opportunity and in North Carolina, the only opportunity for creditors to come after those assets. So medical creditors, Medicaid, the nursing home Brenton Begley: So you really want to avoid probate for that reason and probate again. It’s it it’s something that’s not prearranged. So someone has to figure out what the stuff is and who it goes to. That’s someone is the court. The court asserts jurisdiction over those assets and decides how they pass and one of the rules that the court has, and the probate process is, We’re going to pay creditors before we pay anybody else. So it’s a surefire way to make sure that your creditors get paid in your, in your kids. Your loved ones, get less than what they could get if you would plan to protect the the estate, you know, during your life. Greg McIntyre: Absolutely. Well Brenton, thank you for being on this elder law or exploring the topic. The estate of confusion. I hope this Has helped clear up some of that confusion if you would like for us to help. Take Your estate of confusion and…
Greg McIntyre: turn that into an estate of clarity, then give us a call at McIntyre elder Law, it’s one eight, eight, nine, nine nine sixty six hundred or Check out all our content and you can book a free console online at mcelderlal.com.
Greg McIntyre Estate Planning & Elder Law Attorney
As I sat by my husband’s bedside, watching him sleep and listening to the sound of his labored breathing, I knew that our time together was coming to an end. We had been married for over 50 years, and we had faced many challenges and overcome many obstacles together. But now, as he lay there, frail and weak, I knew that our journey was coming to a close.
I reached out and took his hand in mine, feeling the warmth and strength that had always been a part of him. I thought back to the days when we were young, full of hope and promise, and I felt a wave of sadness wash over me.
But as I looked into his eyes, I saw the same love and determination that had always been there. He gave me a faint smile, and I knew that he was at peace.
We had done everything we could to prepare for this moment, to make sure that our families were taken care of and that our affairs were in order. We had worked with an elder law attorney to put our estate planning in place, and we had made sure that our children and grandchildren were protected.
And now, as we faced the end, we were able to go in peace, knowing that we had done everything we could to take care of those we loved.
I leaned down and kissed my husband’s forehead, feeling the warmth of his skin against mine. And as I sat there, holding his hand and watching him sleep, I knew that our love had been a force that would carry on long after we were gone.
As the days went by, I watched my husband’s health decline, and I knew that our time together was running out. But I remained by his side, holding his hand and offering him comfort and support.
We talked about the good times we had shared, and we reminisced about our children and grandchildren and the lives they had built. We talked about the dreams we had had and the hopes we had held, and we laughed and cried together.
And as the end drew near, I felt a sense of peace and acceptance. I knew that our time together had been rich and full, and that we had left a lasting impact on those we loved.
On the last day of his life, my husband opened his eyes and looked at me with a smile. He took my hand in his and squeezed it gently, and I knew that he was ready to go.
I leaned down and kissed his forehead, feeling the warmth of his skin against mine. And as I held him in my arms, I felt his body grow still and his breath slow.
I sat with him for a long time, holding him close and feeling the love and connection that had always been between us. And as the sun set on our lives together, I knew that our love had been a force that would carry on long after we were gone.
I left the nursing home that day with a heavy heart, but also with a sense of peace and acceptance. I knew that my husband and I had lived a rich and full life together, and that our love had been a source of strength and inspiration to those around us.
And as I looked to the future, I knew that I would always carry his memory with me, and that his love would be a guiding light in my life.
As I made my way home, I felt a sense of sadness and loss, but also of gratitude and joy. I was grateful for the time I had spent with my husband, and for the memories we had shared.
But I also knew that our love would continue to live on, in the hearts and minds of our children and grandchildren, and in the memories of those who had known us.
I made my way home, feeling a sense of purpose and determination. I knew that I had much to do, to take care of myself and to support my family. And I knew that I had the strength and resilience to do it, thanks to the love and support of my husband and the foundation we had built together.
I spent the next few weeks taking care of my affairs and making sure that everything was in order. I worked with my attorney to update my estate planning documents, and I made sure that my children and grandchildren were taken care of and protected.
And as I went about my tasks, I felt a sense of peace and contentment. I knew that I had done everything I could to take care of those I loved, and that I had built a legacy that would carry on long after I was gone.
As the months and years went by, I continued to live my life to the fullest, cherishing the memories of my husband and the love we had shared. And as I looked back on my life, I knew that I had been blessed with a love that was rare and precious, and that had sustained me through all of life’s challenges.
And as I grew older, I knew that I could face the future with confidence and hope, knowing that my husband’s love would always be with me, guiding me and inspiring me to live a life of purpose and meaning.
Schedule your FREE consultation today: mcelderlaw.com/scheduling or Call: 1-888-999-6600.
Greg McIntyre Estate Planning & Elder Law Attorney
Your grandmother made a will years ago. She updated it after all her grandchildren were born. She worked hard and earned a good living and received an inheritance from her late husband. All told, she plans to leave over two million dollars to her children and grandchildren. However, an interloping child (your aunt) convinces your grandmother to leave everything to her and just her. Your grandmother dies and everyone finds out about the will. What can you do?
It’s no secret that you can challenge a will in NC. However, challenging a will, also known as a caveat proceeding, just invalidates a will. It doesn’t provide redress for other harms created by the person who may have unduly influenced the maker of the will (Testator). For that, and other actions that interfere with an inheritance, NC has recognized a cause of action called Malicious and Wrongful Interference with the Making of a Will. The cause of action is considered to be a “tort.” Torts aren’t delicious pastries but legal wrongdoings.
Other than being a mouthful, it may also be a very valuable avenue to seek redress for legal harms done by an offending family member. But the existence of this remedy begs a couple of questions:
What are the elements of Malicious and Wrongful Interference with the Making of a Will? In other words, how do you prove your case?
Must a will caveat be filed prior to seeking any tortious remedy or can the claim be brought independently?
Elements
The case law regarding this cause of action in North Carolina is rather sparse—although NC is one of the first states to recognize it. The following are cases dealing with this cause of action.
– Dulin v. Bailey, 90 S.E. 689 (N.C. 1916), recognizing that a cause of action exists where a legal heir was deprived of an inheritance by defendant’s destruction of a will and admission of a previous will to probate.
– Bohannon v. Trust Co., 210 N.C. 679, 188 S.E. 390 (1936), recognizing that there was a cause of action where a legal heir was deprived of inheritance due to the fraudulent inducement of the testator by defendants.
– Griffin v. Baucom, 328 S.E.2d 38 (1985), recognizing that there was a cause of action where a legal heir was deprived of inheritance due to defendant’s undue influence upon the testator.
None of these cases, however, specify how to establish a prima facie claim, much less what the constituent elements of the claim are. Looking at the Restatement (Second) of Torts § 774B Intentional Interference with Inheritance or Gift, it seems to mean any intentionally tortious means.
. . . [T]he liability stated in this Section is limited to cases in which the actor has interfered with the inheritance or gift by means that are independently tortious in character. The usual case is that in which the third person has been induced to make or not to make a bequest or a gift by fraud, duress, defamation or tortious abuse of fiduciary duty, or has forged, altered or suppressed a will or a document making a gift
774B Comment C. “Tortious Means”.
The most explicit statement of the tort comes from Griffin: “if one maliciously interferes with the making of a will, or maliciously induces one by means of undue influence to revoke a will, the party injured can maintain an action against the wrong doer.” Id. at 41. Thus, the elements broken down are: (1) malicious interference; or (2) malicious inducement; or (3) undue influence; (4) that interferes with the making of a will; or (5) causes its revocation.
While the court in Griffin did not define “malicious interference/inducement”, they did define “undue influence”.
Undue Influence
Undue influence is stated by the court as follows:
Undue influence is defined as “a fraudulent influence over the mind and will of another to the extent that the professed action is not freely done but is in truth the act of the one who procures the result.” In re Estate of Loftin and Loftin v. Loftin, 285 N.C. 717, 722, 208 S.E.2d 670, 674-75 (1974). There are four general elements of undue influence: (1) a person who is subject to influence; (2) an opportunity to exert undue influence; (3) a disposition to exert undue influence; and (4) a result indicating undue influence. See 25 Am.Jur.2d Duress and Undue Influence § 35, p. 397; see also Curl v. Key, 64 N.C.App. 139, 306 S.E.2d 818 (1983), rev’d on other grounds, 311 N.C. 259, 316 S.E.2d 272 (1984).
Id.
Malicious Interference/ Inducement
The basis of the original claim for wrongful interference with the making of a will emerged from precedent recognizing a cause of action for malicious interference with a contract.
“The recognition by the courts, both in England and in this country, of the right of action to the party injured by reason of the malicious and wrongful interference by third persons with contract rights is well settled.” Bohannon v. Trust Co., 210 N.C. 679, quoting Lewis v. Bloede, 202 Fed. Rep., 7 (15, 16, 17). Considering that the justification of the emergence of the claim for wrongful interference with the making of a will is based on this state’s courts long recognition of the claim for malicious interference with a contract, we can draw the definition of “malicious inducement” from such cases.
In Childress v. Ables, in examining a claim for tortious interference of contract, the court lays out the definition of tortious interference in general. “Claims for tortious interference are justified by the ‘overwhelming authority’ allowing for recovery against ‘an outsider who knowingly, intentionally, and unjustifiably induces one party to a contract to breach it to the damage of the other party.’” Childress v. Abeles, 240 N.C. 667, 674, 84 S.E.2d 176, 181 (1954) (emphasis added) (citations omitted). We can therefore, assume the same definition applies to tortious interference of the making of a will.
Thus “malicious inducement” for our purposes can be said to be defined as knowing, intentional, and unjustifiable inducement. Likewise, malicious interference can be defined as knowing, intentional, and malicious interference.
Appropriate Filing of Action
Because of a caveat proceeding’s limited scope, a claim for tortious interference can be made independent of a will caveat where the caveat proceeding would not provide an adequate remedy. Fink v. Middleton, No. COA16-630 (N.C. App. Dec. 30, 2016).
In Middleton, the court found that the sister had standing to challenge inter vivos conveyances because the caveat proceeding would not have provided the sister with adequate relief i.e., it would only allow her to set aside the will but not recover the assets she claimed should have been part of the estate but for her brother’s wrongful conduct.
This standard holds true even if a will caveat has already been filed. In Shoaf, the aggrieved heirs sought compensatory and punitive damages for conversion, breach of fiduciary duty, and constructive fraud by filing a lawsuit against the grandson who allegedly had improperly influenced the testator. Id. Unlike Middleton, the caveat associated with the decedent’s estate in Shoaf was filed prior to the initiation of the Superior Court action. Nonetheless, the Court of Appeals held the action did not constitute an impermissible collateral attack on the validity of the decedent’s will. Shoaf v. Shoaf, 219 N.C. App. 471, 727 S.E.2d 301 (2012).
Thus, a will caveat proceeding is neither a necessary precondition to filing for tortious interference or a barrier to recovery for the same.
If you are seeking legal remedies for an interference with inheritance you may have a viable claim. Speaking with an experienced attorney will help determine whether you have a case. For a free consult call 704-259-7040.
Greg McIntyre: Hi, I’m Greg McIntyre with the Elder Law Report. We’re going to talk about litigation and
conquering your fears today. They are very similar and the litigation that we do surrounds Probate. Estates,Trusts.
Greg McIntyre: You know, people taking money out of others, bank accounts, things like that insurance
beneficiary, fraud. You know, we do a full gamut of litigation real property issues.
Brenton Begley: Reality.
Greg McIntyre: We do run a gamut sometimes domestic issues related to estate planning, and elder
law. You know, we run the gamut with our litigation in that area in our area,…
Greg McIntyre: which is the state planning and elder law. I handle those cases Brenton Begley handles a
a lot of those cases as well and has a big caseload with litigation.
Greg McIntyre: Brenton, what kind of litigation do you handle? How does that coincide with conquering our fears
or facing our fears really digging in right and pushing through that understanding of it? How does that help your clients?
Brenton Begley: Yeah, I handle a bunch of different issues regarding Litigation Litigation, It’s all about
bringing a matter before the court and having the court decided whether it’s a judge or a jury, the
outcome, a lot of times you settled beforehand, but if you’re not aware of litigation is, that’s
what it is. I think that I’ve found about litigation to really explain it to people as to what we do as
attorneys, is you bring us an incredibly complex problem that may not have a clear solution. and it takes
into the case digging in and finding that solution, you know, on the outside. You know, if
especially maybe your neighbor, your family, you might have some type of legal issue and it seems
to go one or, you know, one of two ways when you explain that to a lay person, either they say, Oh
yeah, you know, your rights have been violated. You need to sue or, you know, you don’t have a case here.
There’s no way that I can see that a lawyer could help you and when in fact it’s much more nuanced and a lot of times people bring us legal problems and they think they have a clear slammed up case, but you
know, you have to show them. Hey, there is a lot more here that you don’t see. And a lot of people
have some sort of issue that lay in front of you, they can’t see any way out of. And it’s our job to make
something happen, by the way, not only with regard to litigation, but also with regard to other things we
do, like, helping people get benefits to pay for long-term care and protect me in your assets. A lot of times
you might not see a way out a way to make that happen. A lot of times people think, Oh, I have too much
money. Can’t qualify for these benefits but you sit down with an experience attorney and what our job is
going to be is to figure something out. So that being said, you know, when it comes to litigation it is a very complex chess game and it teaches you a lot about life, how to live your life because litigation is very serious. It makes you have to really dig in and focus and it’s a good microcosm for life as
well. Because it can be very scary,…
Greg McIntyre: If?
Brenton Begley: so you’re putting your reputation, your intelligence, your, your license on the line,
whenever you’re advocating for a client. Let’s say I put together a good legal brief, a tight, pleading where I, you know, have this argument out there, I’ve done my legal research, I’ve put it there and submit to the court. The other side has the chance to respond and what their total goal is to pick whatever I said apart and prove their legal argument, and it could be a very scary thing. What if you miss something What if you know you didn’t do the research like you should have wished. What if you didn’t read the cases as in depth and they’re able to distinguish those cases from what, you know, the fact that you’re dealing with and so, you know, when you get their reply where you get their legal brief or whatever, A lot of people think that
attorneys just look at that and… it’s ready to rent it apart. But in fact, what you find is, is actually a very scary thing to
see someone else’s reply or their initial pleading, because you have to go through that and face all the
issues that are gonna raise because they their job is to, to strengthen their case as much as possible. So
they’re gonna raise all of these issues and pain a picture to the court, why you’re incredibly totally wrong.
There’s nothing that you said that’s correct. And why they’re exactly right and everything that they are
seeing is correct. So it raised a lot issues that you…then have to respond to you have to respond to every point if you want to win. and so, what that forces you to do, if you’re able to conquer, the fear is dig in Look at every point and Try to pick it apart and what are you? An initial human reaction is going to be is I want to deal with this. This is something that’s very scary to me because it rains, all these issues that I’m gonna have to go.
Brenton Begley: I’m gonna have to research, I’m gonna have to deal with, and I’d rather just put it off. I’d
rather not have to do it. And you might even tell yourself, Hey, I’m in a handle this, but it’s gonna be at a
later date, but to really jump all over that thing really absorb their argument, Understand it take it apart, is
that leads you to actually winning a case, The best attorneys are able to look at the other sides argument.
Really go through the details and figure that out. And here is why that is a microcosm for life because
I’ve said across the table from thousands of people, doing a state planning. And what I
can tell you is that there is a resistance to jumping in digging into the details for a lot of
people because it’s a scary thing. You raise the issue of long-term care that 70% or more individuals who
make it past the age of 65 are gonna need long-term care. That’s an incredibly important detail that a lot
of people don’t want to deal with, it’s an incredibly important detail that hey, long-term care costing where five, 10 15,000 a month for an individual and the average days from between four to seven years, that’s it, very important detail. A lot of people don’t want to deal with. A lot of people don’t want to deal with the fact that we all die that we’re not gonna be around. A lot of people don’t want to deal with the fact that maybe they want to leave something to their children but their children, you know, their child, that’s married to somebody that they don’t trust, maybe some other family issues like that. Maybe they don’t want to deal with the fact that you may need to make a plan at all.
Brenton Begley: You know, a lot of people walk in and I hear this all the time, I think it’s funny. They say,
Oh well we don’t have much and I started asking questions about their assets and they say, Oh well, we
have a house, we have rental house, We have a couple of life, insurance policies, a couple of vehicles and
like you have a lot. But you can hear that defensiveness in their voice and it’s not an offensive saying, Oh I don’t think I need a plan. It’s I don’t want to have to go through the details to do it because it’s a scary
thing to consider what’s gonna happen after I pass away what’s gonna happen. If I mean long term care,
what if I becoming confident need someone to step in and help make decisions under power attorney,
things like that, but just like in the work that we do every day is litigators. If you can walk somebody through that process, my God, if you can dig into the details and really hammer those out, then you are prepared. And you do get what we call peace of mind, which is not something that, you know, you have until you have it, it’s this, it’s this, you know, it’s your subconscious feeling a sense of peace. That you didn’t know you could feel you didn’t, you don’t know that you have as an anxiety going on, the back, your head, you know? But when you lay out that plan, when you go through the case and you’re able to develop a good argument, you walk in the court, very calm. Very tranquil. If you plan for your life your assets and what might happen in the future, you're gonna go through the rest of your life calm and tranquil.
Greg McIntyre: very well put.
Brenton Begley: Thank you.
Greg McIntyre: you’re hired, okay? And you have represented me on things before. I appreciate that. Yeah,
so, you know what? I would say in summary to our listeners, you just got a very good recap of what
goes on. In a litigation case. How much the attorney who’s very knowledgeable.
Greg McIntyre: And experienced in to respond to your arguments and relating to estate state planning,
how that relates to a fear of really getting down in the details of facing your fears pushing through those.
The way you do that is to face your fears dig in, look at the details and then it’s not so scary anymore. So
also we can help with that. And that’s what we do.
Greg McIntyre: So we will help dig in for you. And with you as professionals, whether you have a
litigation case regarding a Will Trust Insurance real estate, you know, one of those issues around estate
planning your own. Or you need to really help, you know, get with the professional, like us to dig, into the
details and help formulate the best, the state plan to get you to a state of peace of mind, we’d be glad to
help.
Greg McIntyre: And as right and as always, you know, we would offer a free consult. So to sit down with
you and your family and discuss those issues, you can schedule that free consult by calling one eight
eight nine. Nine nine sixty six hundred or go go online to our website. Click the Schedule Free Console
button and you can schedule right online at mcelderlaw.com and thank you Attorney Begley for being
here.
Brenton Begley: Oh yeah, one last thing I’d like to say is that you know, that console just give you some
expectation of what that looks like. We’re gonna sit down with you and we’re gonna ask good questions.
So it’s gonna be an easy process to go through the details. We know what details need to be gone
through. We’re gonna ask the right questions. We’re gonna explain it and it’s going to allow you to be
guided through that. What’s is a seemingly hard process in a very easy way and… come out with a solution that you know, is going to work for you and your family.
Greg McIntyre: it’s amazing how much we can pick out and when because we know the cause we know
what we need, all we need for you is to bring yourself and any estate planning documents. You may
currently have for review and through that process. It is unreal how quickly we can get those things together and really,
really see a great plan for you and your family. So thank you Attorney Begley and everyone will be back
next week with the next Elder Law report.
Greg McIntyre Estate Planning & Elder Law Attorney
As an estate planning attorney, I’ve seen my fair share of botched wills and incompetent testators. But the case of Mrs. H. takes the cake.
Mrs. H. was a well-to-do woman in her early 80s who had always been rather absent-minded. Despite her wealth and family’s urging, she had never gotten around to writing a will.
Finally, in her declining years, Mrs. H. decided it was time to get her affairs in order. She enlisted the help of a paralegal, who promised to draft a will that would fairly distribute her assets among her children.
But unfortunately, it seems the paralegal was more interested in a quick payout than in doing a thorough job. The will that was produced was riddled with errors and inconsistencies.
For starters, the will failed to adequately provide for Mrs. H.’s disabled son, who was left with only a small fraction of her estate. Additionally, the will contained numerous gifts to charitable organizations that Mrs. H. had never expressed any interest in supporting.
To make matters worse, the will was signed in a rushed and haphazard manner, with no witnesses present. It’s clear that Mrs. H. was not of sound mind when the will was executed.
As a result, Mrs. H.’s children have challenged the will in court, alleging that their mother was incompetent at the time it was written. They are fighting to have the will overturned and to have a more accurate reflection of their mother’s wishes put in place.
It’s a sad and unfortunate situation, and one that could have been easily avoided with proper planning and legal guidance. It’s a reminder to us all to take the time to carefully consider our end-of-life plans, and to seek out reputable and competent legal representation to ensure that our wishes are carried out.
Greg McIntyre Estate Planning & Elder Law Attorney
