.

>> Good evening.

The name of the show is Life Head.

If you have not watched just before I think you'll enjoy our topic tonight we're going to be talking a legal show.

We're going to talk about probate tonight and you're really lucky because we have the probate expert here with us tonight.

We have a magistrate Bill about and we also have Jessica Thoreson, an attorney and she deals a lot with her clients with probate.

So do you have any questions about that?

We encourage you to call the number is (969) 27 twenty .

And if you live out a two six zero area code , just put an 866- in front of it and it'll be toll free for you.

OK if you haven't met him before on your LIFE Ahead and he comes to visit us probably once a year.

>> This is a magistrate Phillip about once a year for how many years did we figure you've been coming?

>> Oh I don't know fifteen twenty maybe something like that.

>> I think I missed one year and there you did.

You did.

That's a whole nother story.

I know but I do I do look forward to this and it's always good to see you every year.

>> Thank you.

Well he always says that when he walks in the door on his month you missed you and nice to be back.

Usually though for some reason it's the end of the year so it's nice to have you here toward the beginning of the year.

>> Well, we usually do a Christmas show.

>> You're right.

It's been December and almost every time but this year just a couple of months later OK, well merry Christmas.

>> Thanks.

Come back in December ok want belated OK and Jessica always good to have with us Jessica Thorson she's been on LIFE Ahead regularly for many years.

>> Many here know how many years.

>> Oh I would say maybe about thirteen.

Fourteen wow yes my kids were little.

>> They used to wonder why Mom wasn't talking to them on the TV and so now they're teenagers and so they're definitely not paying attention now did they say they don't think you're a big deal man because on TV no.

>> And in fact if somebody recognizes me in the grocery store I kind of get one of those teenage girls.

>> I get your family.

Do you have children?

I do my my children are all grown and they're all making their way in the world right now.

It's spread out across the country really.

>> Yeah, but we we see it we've got Denver, Indianapolis and New York City covered .

Oh well nice places to visit Ronder I was going to say for you that's perfect you can go west go east and visit them.

>> Yeah well I'm glad that both of you are with us tonight and again I encourage the rest of you to give us a call here if you have any questions and by the way if you have to talk live to us here on the studio, that's the best if you would wouldn't mind doing that that way if Jessica or the magistrate have questions back to you, you're right there to answer and if it's a private question, if you want to give us a different name, that's OK. >> We don't care.

We don't care as long as we get the question and if you're not comfortable doing that, we do have a phone screener operator that will take your question and type it up and send it out to me here on the teleprompter and I'll ask him the question.

We have no rules for the show so it's pretty easy and we have no commercials either.

By the way, we're just going straight through for this half hour.

All right.

Let's talk about probate first of all and I'll ask you Magistrate to define it if you will.

What is probate and when did it start?

>> Well, probate is there there's a broad definition but for purposes of what we're talking about tonight, it's the administration of people's assets after they passed away they're winding up of their affairs so to speak after after they passed away the you we think in terms of written wills, trusts and things of that nature probate I said it off the air and I think it's really true.

It's probably the oldest form of law.

>> Oh really?

And I did some research on this a number of years back and it kind of goes back to the Magna Carta and all that back and really I think it goes back to cavemen and hearsay because think about it what people would die, OK?

Cavemen would die and they would have maybe a club and they'd have a few skins and stuff like that and there'd be a free for all right.

>> Well sure whatever would have this knowledge.

>> Yeah.

And they'd go in and they'd just grab it.

There're no rules and so I think probably early caveman Neanderthal whatever probably figured out pretty quick that we need to have some sort of rule as to what happens to some property after they pass away and some natural somebody that can make those rules.

>> Well you have to have somebody that can enforce them that's for sure.

>> The guy with the biggest club and probably that's what it was at that time when I think I've said it in probate probably came about as a way to avoid free for alls which which would be if there were no rules as to who gets your stock it would be some days it would be nowadays of course have there has to be an orderly way of of passing that property owners.

>> Well, Jessica specializing in elder law I imagine that a lot of people come to you and say what do I do next?

>> How can we finish settling the estate?

So it always starts with a conversation just to figure out what somebody actually owned.

How was it titled?

Was it joint with somebody?

Was there a payable on death designation?

>> Was there a beneficiary designation?

What did you really own and how was titled?

So it starts there and then we try to figure out from there where do we go?

How do we actually administer those assets?

There are different mechanisms depending on the value of those assets, the nature of those assets and so we really just got to start with information gathering and then we go from there.

>> OK, OK now why do we get to probate?

>> I mean why does somebody end up coming to see you, Judge?

>> Well, they would come to see me because they in almost every case they've seen their lawyer and they realized that they had some there are some assets that need to be transferred.

>> You may let's talk about let's say a brokerage account or just a savings account and if it was in the name of the deceased person only there has to be some official determination as to who's supposed to get that and that may be because of a directive that was in a will if there is a will, if there's not a will and the law would define who gets those assets but then it's the court that oversees the court make sure that it goes to who it's supposed to go to, whether it's through a will or if there wasn't a will based upon what the law of the law of intestacy that's without a will would say all right.

>> And that's when you'd come to see me.

I knew you'd be popular tonight .

>> Judge, we have a rod calling Enron.

Thank you for watching us here in what is your question for our guests this evening?

>> Well, thank you for having me, Sandy .

You're having this to show my father died with three sons, a house, some other assets and some debts.

The three of us all know that his plan was to leave the house to one of those sons and we're all in agreement about that.

But we don't know if if it's permissible for us to choose how to pay off those debts.

That is can we use the nonresidential assets to pay off the debts and potentially things that are outside of probate if necessary or will the judge require us to sell the house and split everything evenly?

>> OK, good question and I imagine that there are a lot of people that have a similar yeah.

And there's just one preliminary court.

Right.

Did your father have a will not a properly executed OK fair I think I'll turn this one over to Jessica because I'm sure she's got some pretty good ideas.

>> Yeah.

So when there isn't a will we have to look at make sure that the three kids are really truly the only heirs that there aren't any additional heirs.

But after that we can kind of look at is the debt related to the House in any way?

Do you know Rod?

>> It's not OK.

It's all outside of of a mortgage or a home equity line of credit or something of that nature.

>> So then yes, we can really kind of come up with a way to settle those debts outside of the house so that we can keep the house.

But then dealing with the issue who actually gets the house that is also another issue that we have to deal with because you really do have three heirs if you all want to sign off on one particular er getting it that is possible.

We just have to kind of figure out the best mechanism to do that based on the value and how we're going to satisfy those debts outside of the home that he mentioned a truck and he sell the truck to pay off those outside debts and keep the house intact, that that may be part of the solution here.

>> And the key thing here is hopefully everyone will be in agreement as the three heirs here.

>> Yes.

Sounds like you have three heirs to this estate and if everybody's in agreement as to how this should be done, that's the way it can be done.

>> Yeah, truly.

Truly.

Yes.

Oftentimes we like to memorialize those things just to make sure that one time marches on people will forget hey, what did we actually do in twenty twenty five?

And so sometimes we really do want to just put that have some sort of document where we all agree and sign in writing this is what we agreed to because memories fail and time marches on and so it is important sometimes even if everybody's in agreement to have some sort of formal documentation to make sure OK, this is exactly how we were going to pay that debt and then this is also how the House was going to be transferred.

We may be talking beyond this generation.

I mean those siblings may all agree but maybe in fifteen or twenty years one of their children or grandchildren will say hey, how'd that work?

>> That doesn't seem fair.

Why don't we go back and find that it could happen and it's good to have the memorialize as Jessica said in writing so that somebody said well here's what happened about twenty five thirty years ago.

>> Yeah.

But in a situation where the the the values here add up in the right way but there are situations where the court could force a sale of the real estate but it doesn't sound like that would be the case here.

>> Would that be if somebody had extreme debt?

Well sure.

If the and the and the No one was agreeing sometimes folks would take money out of their own pockets to pay the debt so that you can keep the house intact.

But a lot of times that's not the case.

And if there are if the debts exceed the other assets that you have the truck in this case maybe there were some savings accounts, something of that nature if the debts exceeded that and the family no one was willing to step up to pay the debts, then you might have to sell the house in that situation that does not sound like the situation that you have, Rod sounds like Rod.

You have some good siblings if you're all agreeing on things that's pretty good.

>> Yeah.

OK, we do have another call coming in right now from Ben and I'll wait just a moment here till Matt comes across the screen and I'll I'll ask you about that.

Meanwhile, Jessica, what's the difference between an executor and a personal representative?

>> Is there any difference?

Not not really.

So Indiana uses the terminology personal representative.

Other states may use the term executor but essentially that is the same role.

It is a fiduciary role.

Your job is to make sure that you are collecting the assets, recognizing the debts, notifying the proper parties about what is happening and really truly following the statute to make sure that you are fulfilling your fiduciary duty and that you're not taking the money and go on gambling or going on a vacation or things of that nature.

>> I think I think the terminology came an executor is the historical term that's that's the male the masculine form executrix is for female personal representative executrix.

>> Why not like that for personal representative is gender neutral and so I think that's the terminology that's used in the statute.

>> I never knew that that's pretty and that fascinating me.

Mm.

I'm telling you it's great.

>> I always had something really fascinating to tell us.

In fact I wonder if you'll share with people what you think it is in terms of like what people should should should we use the courts to do that because we have one right here.

>> Let's talk about that.

>> I've heard people so often say I want to avoid probate and are not in this.

>> This is a famous book Moses Norman Dacey came out in nineteen sixty five How to Avoid Probate and I'll try and go through this quickly.

I said we've got some other calls but it really started what as it amounts it's not a cottage industry.

>> It's a huge industry of everyone thinking they need to avoid probate.

Yes but in most people if you asked them and really dug into it they don't even really know why they would say oh it's I've heard people say I'm avoiding expenses, I'm avoiding delays.

Trust me, there are situations where avoiding probate may make some sense.

There are some privacy issues sometimes but generally probate probate in the way it's configured today in the state of Indiana.

>> It's very private.

Yes.

If you have to come into court, none of the information relating assets is available.

The cost to set up interviews, trusts and things of that nature.

If you want to avoid probate there's going to be a cost involved during your lifetime.

You lose control of the assets.

>> Probate is a pretty good system of getting moving assets around.

>> But Dacey who got an injunction against him for practicing law for writing this book The Guy this is not it wasn't even an attorney.

>> You weren't even an attorney.

But there are a lot of stuff in here.

>> You do it yourself all these forms but it's sold millions of copies and it's been updated.

>> I don't know if if they've updated it recently there's more other probate.

He's probably still being sued maybe but it's the whole idea of avoiding probate.

I think you really need to think about that.

It's not as bad and the things that Dacey says in this book I don't care if you want to avoid probate then I got less business and I'm OK with that.

I got plenty of business so I don't I don't really have dog in this fight but probate pretty good system of transferring those assets and we see Jessica you do too.

>> You see people all the time so worried so worried about probate.

>> They get fixed it as they age particularly.

Yes.

We get so fixated on this issue I got to avoid probate.

I'm so worried about this.

Well, why it's not that bad folks.

You just you know, tell us what you say to a client in that situation.

>> I definitely say why are you wanting to avoid probate?

Let's talk about what your goals are, what your assets are because that may not be the best situation for you.

There are many circumstances where going through the probate process may actually be the cheapest and simplest way for your family to handle your assets.

It is so case specific that it really isn't one size fits all.

>> You can't always follow books like these because we've got to get down and into the into the weeds so to speak and really know about your assets and your goals that you're trying to accomplish and your family dynamics.

So let's have a twenty minute conversation about that and figure out what really is your biggest concern.

Why do you feel you need to avoid it and then let's figure out the best plan for you.

>> How about the issue of speed?

That's what I said.

Oh, it's going to be tied up in probate.

It'll last forever.

>> Yeah people do say that you don't want that to happen.

Very, very rarely am I having estates open for years and years and years now when we used to back prior to 2013 when we had inheritance tax there was a little bit of a delay because the Department of Revenue had to review all of those returns and so there could be delays in that regard.

But since 2013 our estates are administered very promptly.

Oftentimes the biggest issue isn't necessarily whether you're in probate or will it's do you have a complicated asset?

>> Do you have a house that is just not selling something that needs to be sold?

Exactly.

>> Those are not specific to probate or a trust that is specific to that particular asset.

>> DeLay would occur even if exactly and did before you could distribute it out so and I characterize this in speeches I've given in the past over the years you can pay me or pay me later.

>> Yeah.

If you want if during your life if you want to pay a lawyer to set up some complex estate plan that gives everything away before you die you have at it right.

And I've also shared with families it's a question of do you want to do the work or do you want your children to do the work because oftentimes those trusts that's that's a lot of management during your lifetime.

I love to do trust but you do have to recognize again you can't just do it and forget about it.

>> That's a living thing that you have to manage is giving somebody probably around the job then of caretaking that forever perhaps or as long as the trust is still it's a job and personal repr being a personal representative is a job and sometimes people fight over and say Oh I want to be the person.

>> Well maybe you do or maybe that's something I'll just order that in there because it's work if there's some work involved and even if it's a small state it's still work to do.

You've got to pay the debts, got to identify the debts.

You've got to pay those debts and you've got to liquidate assets.

>> You've got to clean out closets and all that stuff.

Yes, it's so hold your hand up necessarily.

>> Right.

Well, what happens if no one is willing to be a personal representative a I'll say well there's there's usually some inertia.

I mean if there's when I say inertia that means somebody is going to want to get the assets administered and maybe they don't and if they don't then things will sit there.

>> OK, that's true.

>> But that that's a real rare occurrence.

It is it is really rare.

I will say I do face that sometimes when we are dealing with the planning situation because families are living further apart.

Maybe people have smaller families and so the struggle sometimes with even getting people to come and to do these documents is they don't know who to designate.

>> So but I would rather you come in before something happens to you and let's have a discussion about all of the options that are available so that you know that it isn't just going to sit there and those final wishes are going to be honored.

So I definitely see it from the planning side of things but very rarely do things just sit there are things to ways I should say to to keep things moving.

>> I think we have been on a line.

>> Is that correct?

Ben, are you on the line with us?

Yes, I'm here.

OK, great.

What is your question for us, Ben?

My my father died a little bit over ten years ago without Will and he had a house you know, paid for there was no mortgage on it and as me and my two younger brothers OK that are Fisher he my youngest brother with me and my other brother made a deal with him.

>> He was supposed to basically pay us some Paice for it over time but he never made one payment.

He's never done anything.

And my other brother and I we basically would like our cut what you know what do we do?

>> Well, I'll yeah, I'll say one thing and get this started and that is that probate there is no statute of limitations on it and any time any place that needs to be administered it can be administered and occasionally that happens years and years and years after somebody passes away.

>> So what would you do in this specific case do Jessica?

So I would want to have a meeting really with all three of you to make sure that we understand what's happening and is it my understanding that you're all living in the house or is just one of you living in the house?

>> It's it's just my youngest brother and he's basically trying to avoid we're trying you know, we he's basically saying, you know, forget you guys.

>> This is my place now, right or wrong.

Yeah.

And so this is a situation where probate is actually going to help.

So Indiana does have mechanisms to transfer property outside of probate.

But this situation because you've got somebody who is being a bit uncooperative probate is actually going to help you so that we can kind of push the issues along and actually get things to where they're supposed to be.

>> OK, does that help been yeah.

>> Yeah.

And you know, just one more question where where would I start to you know I mean should I call you guys or where would I start to get the ball rolling ?

>> Yeah.

So an elder law attorney could help you open the estate.

They would help you get all the necessary information to actually file the documents needed with the court.

I do believe there is some information out there in the Internet world but I don't know kind of what your thoughts are on that without an attorney involved.

>> I think particularly in the situation you've described, you're probably going to need some legal advice.

Yeah, and and if you know a lawyer great.

>> Even if they're not a probate lawyer, talk to them.

They'll refer you to somebody that can do this because they wouldn't need a lawyer before they could even come to you.

>> Oh yeah.

And and that's absolutely well before to file anything with our court and but or you can call the Allen County Bar Association they have a lawyer referral service.

Just look up the Allen County Bar Association called our office.

There's a nominal charge to get referred to a lawyer and for that charge you'll be able to sit down with the lawyer for a half hour and just get the basics of what's going on.

So that's a good place to start.

They'll get you to somebody that practices probate law.

>> Sounds like good advice.

OK, good luck with that band.

We'd love for you to come back some time and let us know how that worked out for you.

Leonard, I believe it's on the line with us now.

>> And what is your question, Leonard?

No, not on the line for Kirk.

I do have is yeah, I have his question here.

>> Leonard says four car titles in Indiana.

>> Can you put on the title transfer at time of death?

>> Yeah, it makes sense.

Yes, it does.

Yes.

So there is a way to make vehicles or things that the DMV manages.

I think it's all of like mobile homes, RVs, all of those type of things.

OK, there is a transfer on death document that you can file with them so that it can be you can do that any time when you buy the car camper or whatever any time you as long as you own it.

>> Yeah, You can give it away as long as you have that title.

>> Yes.

And a lot of people I think I think we've talked about this before may put that in there will if they want to say donate their vehicle you're looking at me like oh you could do that.

>> Yeah, you could do that.

You can you can say I want my vehicle to go to cars for kids.

>> OK, yeah.

Yeah.

Commercializes right.

>> Well we know that commercial the kids right OK I can't understand the one girl what she's doing so I don't think they're really playing those instruments.

>> I think they are but they wear a lot of pink and black and white and commercial.

>> You all know what we're talking about.

I'm sure last bits of advice because we're getting toward the end of the show.

>> Unfortunately, Magistrate, I in you can't come to my office to get advice folks.

A lot of people do and I feel bad for them because somebody says oh, just go down to the courthouse and they'll help you out.

>> We can't give legal advice basically.

So I really suggest that if you have questions of that sort, ask anybody but me because I ethically I'm just going to say I can't talk to you.

>> You have to be neutral anyway.

I'm sure that's that's where the ethics come in.

>> So look at the material when it comes to you that's that's a judge's job.

>> Jessica, you know, plan early I know that there's a lot of people who get very nervous about speaking with an attorney.

It's it's very one it's a lot of big questions that I'm going to ask difficult things that you may have to think about.

But the more you plan ahead and the more you plan early, the better your family is going to be prepared for what it is that you want.

They're not going to be second guessing themselves.

They're going to know that they are honoring your wishes so so plan ahead.

Things go a lot smoother when you do.

>> All right.

Good advice.

All right.

They always give us such good advice here on my life and also by the way, remember we showed you this book if you see this at a garage sale, don't buy it because it might be a collector's item.

>> But I don't think it gave a lot of great advice keeping in mind that it's not really a legal document at all.

OK, thank you all for watching us here tonight on LIFE Ahead.

We always enjoy your company and we'll see you back here again next Wednesday night on LIFE Ahead at seven thirty eight .

Meanwhile, have a great evening and stay safe.

Stay healthy