At the Conference Table 6
Estate Planning Ghost Stories
A Nightmare on Probate Street
Oct 28th 2016
Happy spooky Halloween and estate planning ghost stories.
What’s going on for Halloween in town Hayden?
Hayden: In the olden days, the place to be was on Belvedere. You went down Belvedere and it turns and heads toward Elizabeth, that was the hangout for all the teenagers.
Greg: They had teenagers back in the olden days?
Hayden: Yes. All the kids went, and there are two stories I can tell you. A quick one was, the police used to come down there and watch the kids and the kids would throw firecrackers, and these were the real firecrackers that could blow up toilets. But one time while the police were walking around, one the boys walked over, got in the police car and drove off. He got taken to the police station eventually but he didn’t get charged. Back then they were lenient.
Greg: That wouldn’t work out so well now.
Hayden: The other story, a friend of mine and I, she & I are still good friends to this day, and this was in 1964, and we were out riding around in a car, and there was a place called Willis Grill which is now ‘??’ (9:03) supermarket. They had little carhops who would come out and bring you your sandwiches. We were riding around and came back to Willis Grill to pick up a couple of male friends, and they wanted to stop at a 7 11, which was a little grocery store, and they came back with a dozen eggs. Trial Service station had big glass windows. It didn’t break but they got our tag number. Well the police knew where to look for teenagers on Halloween night, and they came down to Belvedere to Willis Grill and they had us follow them back to the police station. From that time until they let us go, I cried the whole way because my parents had to come and get me from the police station, but they let us go.
Greg: See what I have to put up with here at McIntyre Elder Law, a juvenile delinquent.
Hayden: I had some adventures but that’s not what I’m proud of. I never did it again.
Greg: But in retrospect it was kind of fun though. Hopefully that’s the worst that goes on this Halloween. We always had a lot of fun growing up in Shelby. I have stories from Halloween from when I was a kid, dressing up. One of my friend’s dressed up for Halloween and went around door to door in River Bend until he was like 30 years old, seriously. One time he was a mummy, he just wrapped toilet paper all around himself. My parents would just laugh.
I’ll tell you a story, one time I was going over to that same friend’s house late at night with some others. We ran across the golf course late to his house, and his bedroom was in the basement. We went down there with our mask’s on and woke him up. You have never seen someone so scared, he was seriously scared. So, don’t do that, you’ll give someone a heart attack.
Hayden: You didn’t do ‘ding dong ditch?’ You ring the door bell and run and hide. Some people carry it further and do other things but it was just enough to let us know we were doing something.
Greg: It was fun. You’ve got to let your kids have some fun. I think we try and make our kids too perfect sometimes.
Estate Planning Nightmares
So, you’ve had the intimate details about our pasts, now it’s time for estate planning nightmares. I wanted to talk about passing without a will.
If you don’t have a will, how can that be scary?
‘How about Scary State Control’. The state already has statutes set up if you don’t have a will in place. This would pass your property whatever way they saw fit, not the way you want to. So, if you want to control your property and pass it, if you want total control of it, you need to draft a will. Put one in place. But that could also lead to a nightmare.
I’ve talked about ‘Wills and Probate’, and not just a Will. You can use Deed Planning to pass things too. Or set up payable-on-death-beneficiaries on your bank account, but without giving your children control as a joint owner. They would just be the beneficiary once the owner passes. That’s a way to avoid probate, and is outside the controls of the state. I have seen bad situations when the state gets involved, especially when it involves what a spouse can get. There is a set share of what he or she can get but it’s not necessarily everything.
So, what about Probate pitfalls, what are Probate pitfalls?
Hayden: For one thing, you’re kind of on your own, unless you want to hire someone to help you, because the clerks at the court will give you a hand full of papers and that’s it.
Greg: They’re great at what they do but they can’t any do more because they can’t give you legal advice. You have to get an attorney, and it takes a lot of time to do probate.
Hayden: And just from seeing our Probate Department and the problems they run across, that’s not for me, I can’t handle all that. You didn’t bring this, and you didn’t bring that, and this doesn’t balance, and you shouldn’t have spent the money here, and this wasn’t your money. It’s just one complication after another, and if you do it wrong, it’s a nightmare for your children, but you can prevent it.
Greg: A Nightmare on Probate Street, and you don’t want that. When I sit down with someone, I have a formula I go through. We send out information beforehand to get you thinking that way. So let me know if you want an information packet. Just leave a comment or call us and we can email one to you as a welcome package. We will have you fill it out in such a way that it gives me some insights into what your assets are.
Why would I need to know someone’s assets? It’s none of my business right?
Hayden: Well, the size of the estate matters, who inherits it matters.
Greg: When I look at it, I go through a methodology where I say, what are your liquid assets, stocks, bonds, money, savings and how can we pass it outside of the state? How can we keep one eye on the fact that 70% of seniors over 65 right now are going to need some type of long term care.
How can we guard those assets? What about real estate? Do you have a house? Are there adjacent lots, is there other land? Are there other properties somewhere else? How can we protect it? Do some simple Deed Planning to protect it and pass it outside the Will, so we avoid probate. You don’t want to die on probate street.
Hayden: And you don’t want to wait until the last minute either, because there are ways to protect everything and the people you love.
Greg: Exactly, and Trust Planning is one. You want to hear about spooky control? My Probate Professor in law school carried a remote control he called Trust, a dead hand control. He’d say, it’s like you hand is sticking up from the grave with a remote control. That’s what a trust is, it’s your hand sticking up from the grave with a remote control.
I’m going to put that on Facebook as a visual. It allows you to control your money and property long after you’re gone, and care for your family, inspire them to do great things, pay for educations, pay to charities. Trusts are amazing things to exercise dead hand control.
I did an article in the paper recently called ‘Memories and Mementos’ and that’s what this is about. It’s about the things that matter, it’s the fabric of who you are, passing on the things that matter most to you. It’s not just the money, not just the property but with the money and property in a Trust, you can also pass on those values. You can inspire and fund educations, or fund charitable events, the things that matter most to you. And Trusts are also great for protecting assets from the Medicaid spend down.
Hayden: Suppose you don’t have any children or your children don’t need your assets. Then what can it do for you? I mean what if someone wants to go on a cruise?
Greg: Medicaid Asset Protection Trusts, you have to appoint a third-party trustee for this trust, but you lock your assets up in that MAPT and you have an income from this. It can provide for things like that, and it starts the look back clock ticking.
We’re going back to basics here, get your foundations in place. General and Durable Healthcare Power’s of Attorney, Living Will, and Will, those are your four foundations. If you don’t, then guardianships might come to get you. Guardianships are tough, they make it tough for your family to manage assets and do anything without getting permission from the court. There are strict rules as to the accounting, so the money is pretty much locked up. If you have long term care or healthcare problems, you might as well get a dump truck and haul your cash to the parking lot of the nursing home.
So, to avoid scary state control, get you foundations in place, avoid the pitfalls of probate, and protect your property from any long-term care situation. Remember, you need dead hand control to control your property well into the future.
If you have any questions you would like to ask me any questions about the above article please call me at McIntyre Elder Law, 704 259–7040, or you can find us on Facebook and twitter @LawyerGreg. So leave a question or a comment, I do answer any questions and comments throughout the week so get writing.
Elder Law Attorney
McIntyre Elder Law
123 W. Marion Street
Shelby, NC 28150