By the year 2030, one in five Americans will be of retirement age.

Beers Mallers - elder law attorneys counsel individuals regarding matters of setting up estates, trusts and help navigate difficult family situations.

Beers Mallers, attorneys at law with offices in Fort Wayne, LaGrange, and on the web at BeersMallers.com.

Good evening and welcome to PBS Fort Wayne.

The show tonight is LIFE Ahead.

We have this show every Wednesday night at 7:30 and every Wednesday night we change topics and we change guests so that throughout the year we're able to provide you with a lot of education and information on topics that might help you with choices you have to make in your LIFE Ahead.

That's the name of the show.

Now, this evening, we're going to be talking with two attorneys.

Not unusual for us here on LIFE Ahead.

So this is a good opportunity for you to get some good legal advice.

Jesica Thorson is with me this evening.

Nice to have you back, Jesica.

Great to be back, especially specializing in elder law.

And with you, Ryan Garner.

Nice to have you.

You've been here many times.

A number of times.

A good handful.

I should make him stand up.

It's intimidating.

He's like 65”, you know, And big guy.

Big guy.

So watch what you're doing over there, Jesica.

I didn't want him that close to me here.

I'm on my P's and Q's.

Are you specializing in elder law or what is your specialty?

I'm more of a trial attorney.

Okay, so the contested side of elder law probate litigation is really what I'm here for tonight.

And but my practice is it goes beyond that as well.

Of course, it does and probate, by the way, is the main area we're going to be talking about here this evening.

And to start us like have you, Jesica, explain about a will.

What is a will and what do you do with it?

As soon as someone dies, where will it be?

And then what do you do?

Sure.

So a will is just a document that is going to provide for who should handle your final affairs as well as where your assets in your possession should go.

So when somebody passes away, generally we start with a telephone call or some sort of meeting to just go over what a person's assets are.

How are they held?

Are they held in that person's name alone?

Do they have a beneficiary?

Is there a joint owner?

For those assets that are in an individual's name alone, what we do is we have to look at the will then to determine where it goes.

Yeah.

So determining where it goes is just part of the problem.

We then have to figure out the value of those assets on that particular day that that person passed, because the value will determine whether or not we can go through an informal probate process or a formal probate process.

You said you have to figure out the value of the date that person passes away.

Correct.

Even if you're not getting to it for another couple of weeks.

Exactly.

Okay.

Why is that?

Because the value of it depends on which process will go.

So in the state of Indiana, if the value of those assets is less than $100,000, we can go through an informal process.

We do not have to have a personal representative formally appointed by the court, and we can kind of go through a shortened, simpler version.

If the value of the assets are over $100,000, we have to go through the formal probate process where we have to put a notice in the newspaper.

We have to have the court designate you as the personal representative, and we have to kind of go through this particular process to administer the assets and get the funds to the heirs.

And that's where Ryan comes in.

Yeah.

Well, probate.

What's that?

What's the maybe whether or not you have to go to probate?

Well, whether or not all the beneficiaries agree on where those assets are going to be distributed.

Okay.

Always a big controversy.

What would you say percentage wise, Ryan?

People that you clients that you've had through the years that will appeal or resist in some way?

So the term we would use is contest.

Contest.

Contest a will or or challenge the distribution through probate or a non probate asset in some cases.

I would say that the percentage where there is a conflict or a contest is is less than ten.

That's good.

That's good.

And that's a full blown dispute.

Right.

There's always these little squabbles that come up because let's be honest, family disputes are not uncommon for any family, really.

And so it's those families that are usually disjointed where you may have one child who fell out of touch for a while and then shows back up at the end to say, I don't agree with how those assets are going to be distributed.

What do you do?

What's the next step for you as an attorney to do for them or with them?

Well, the first thing I do is I go to the will.

We need to figure out whether or not that will that that mom or dad or whoever is leaving use something, filled it out in a valid manner.

Right.

And so in Indiana, there are a lot of finite steps to properly executing a will usually done by a great estate planner, by Jesica.

And when you have a good lawyer, you usually don't need the trial attorney in the context where I would usually step in because if all the T's are crossed and the eyes are dotted, that instrument usually cannot be challenged or really should not be challenged.

So when people challenge a will, is it a long process to get it figured out and tune it out?

Or.

Or does the probate judge judge make the decisions?

It is a long process.

Oh, is it?

Like, what's the long I would say best case scenario, six months.

But that is absolutely best case scenario.

I would say realistically, 1 to 2 years would be the normal course for a will contest from start to finish.

And that finishes a trial in front of a judge or sometimes a jury even to determine whether or not that will is a valid instrument.

Now, that's interesting to me in front of a jury, I guess like a doctor of that.

Is that a frequent or infrequent?

It is infrequent that a will contest would go all the way to a jury trial.

But in Indiana, you can request a jury to make that determination of whether or not the person who filled out the will filled it out accurately and without coercion, duress or a lack of what's called testamentary capacity.

And that's a fancy way of saying whether or not the person knew what they were doing when they did it.

These are TV show things that you're talking about.

I mean, yeah, a case where yeah, one of the relatives contests the will and and they say, yeah, well mom promised me this and she wasn't sound mind that day, you know, that hour that she did.

And how do you prove those things?

Sometimes it's not possible to prove it.

Sometimes it's not possible to disprove it.

And so in usually that's the harder thing to do is to prove that whoever mom, dad, your loved one, didn't have that capacity.

Often we go back to the lawyer who was there who helped prepare the document with the the decedent.

A lot of times we go back and we review medical records.

Did they have a medical connection at that point in time that may cause their capacity to be put into question?

Would you need a doctor's written, not prescription, but written opinion?

Yeah.

Yeah, That's somebody has Alzheimer's or dementia and they may be not in sound mind to do it.

Well, I would say as an attorney and Jesica, feel free to jump in since you're the the preparer of these types of documents more than me.

It's a very good practice point for an attorney who has concerns for their client before they execute a will to say, hey, why don't we reach out to your physician?

I'd like to get an opinion letter from him or her to help me feel better about what we're doing here.

So and really, that's a nice way of saying you seem a little confused.

Let's make sure you're not.

Let's go get a letter from your doctor.

Yeah.

Generally, in the planning process, I'm trying to meet with an individual two, maybe three times, depending on the circumstances.

One is a general conversation about your family dynamics.

One is it's conversation about your assets.

We're trying to just get to know you and what your family is like.

And are you talking about the person with the representative?

No, I'm talking about the person who's making the will.

Okay.

So in that planning process, I'm really trying to just have a conversation because as you can imagine, some people who have Alzheimer's or dementia, they can't track a conversation for very long.

Right.

And so that initial conversation is really just for me not only to get to know your family, but, as Ryan mentioned, to see, okay, are you confused?

Do you have the capacity to make this well?

Can you make that judgment?

Well, I can at least start to maybe question some things and ask for a doctor's opinion, because I am trying to accomplish maybe what they're asking me to do.

And if I feel that they don't have the capacity ethically, I can't have them sign a will.

And so then I have the second meeting where we actually go over the document, and I'm pointing things out in the document and confirming that this is their wishes.

Again.

A lot of that's just a conversation to make sure they have capacity.

And if at any point during that process, I am questioning that I'm going to put a time out on the meeting and I'm going to say I think we maybe need to get a little bit more information.

Let's talk to our doctor or let's make sure that we are have the full capacity to to sign this will, because I don't want to create a problem for his family down the road.

Well, when you make a will for somebody, you know, somebody calls to make their appointment to come and see you, should they bring another person or not?

Generally, I don't advise it.

Couples, of course, come together.

But there are many times, especially if we're talking about some really difficult family dynamics, there are times people will bring people into a meeting with an attorney, and there are times that I'm going to say I'm going to have these individuals step out for right now so that you and I can just have a conversation.

Or maybe I'll turn it into an introductory, just a kind of meet and greet, answer questions type of meeting, and then I will specifically say, okay, well, when you come back, I really just need to see you.

And so there are lots of little ways that I can make that happen where I make sure that we're not being influenced by outside individuals.

And you have such a lovely personality and smile.

I doubt that you make them angry by asking them to do certain things.

Yeah, I try not to, but sometimes obviously when you have to measure Alzheimer's and somebody may be questioning your capacity, they can get a little agitated.

And so you just try to find soft ways to say, well, I just want to make sure that your family is not going to be fighting when you're gone.

I want to try to make this as smooth as possible for you.

Would you work, Ryan, with personal representatives in in preparing your probate case or.

I don't I'm not sure the legal term.

Yeah.

Certain that when you've taken care of those things.

Well, the personal representative would be a party to any case, whether that's with or without a contest.

The personal representative is a party.

But if it is a will contest, if somebody is challenging the validity of the document, the personal representative usually plays a key role in that either purely by just running the administration, the estate, because that administration still has to go on while we're litigating the case.

But oftentimes the personal representatives, a family member, a beneficiary themselves, and usually because they're appointed as the personal representative, they were that person's trusted advisor, confidant, someone very, very close to them.

So they usually have the vast majority of the information that we really need in either defending or litigating a will contest.

Okay.

All right.

If you have a very complicated case, and I'm sure you've had plenty of those.

Again, talking about a time frame, let's say it.

I think this happens.

I'm guessing more frequently because people are spread apart now.

And it used to be the whole family would live within 20 miles of each other.

But now they're all across the country.

So it might make it more difficult for the attorney to communicate with everybody in the family or everybody to make a decision.

Do you find that's the case and what do you do?

How do you counsel them or do you?

Yeah.

Nowadays, thanks to technology, geographic proximity isn't as big of a hurdle as it used to be.

You can face time email.

We set up video conferences quite often called conferences.

In-person is still I know my preference just because I feel like you can really get more done.

You can look at the same piece of paper.

You can make sure you have someone's undivided attention.

I can't tell you how many times someone's been on a video conference and a small child runs in the room or a dog is barking in the background.

And and that's that's life.

And that's obviously understandable, but in-person is certainly preferred.

Sure.

And I think being able to read body language in a meeting sometimes because oftentimes some of these will contest and some of these family disputes are ultimately over personal property.

It's that cookie jar that's been in the family for 100 years.

I remember making cookies with grandma.

This was our special time together.

I really want that.

Well, my brother or my sister may have the exact same memory, so we're trying to argue over.

Still wants that.

So sometimes being in the same room gives you a little bit more opportunity to solve some of those little minor things that are maybe going to manifest into something bigger over time.

Yeah.

And so if you have a couple of those meetings like that, you can kind of maybe settle some things down to where it doesn't become this full blown contest, know, legal dispute.

Okay.

You talked about the cookie jar of magistrate.

Feel like it's been on our show a number of times and I love what he says as the probate judge, if you will.

But a lot of times the decisions he has to make aren't over who gets the lake cottage or the existing home or the car or those major things.

He may have to decide who gets the let's see, the key set from Niagara Falls that grandma bought back in 1943.

You know, and just again, sentimental value.

Yes.

Ryan, do these clients of yours, would they come to you with those kind of situations to iron it out before they'd have to go to court?

Yeah, that's a very common problem for most families.

And I'll tell you what I try to counsel people to do is work it out with your fellow beneficiaries, usually your siblings or family members.

Try to work it out.

There's a lot of creative solutions we can try to come up with.

I refer to it as a snake draft.

Flip a coin, somebody goes first and then it's every paper, scissors.

Rock, paper, scissors.

Exactly.

I mean, they may be adult children, but they're their children in these situations and they buy trinkets.

And it's it is economically a poor choice to go to trial, pay multiple lawyers to fight over the cookie jars and the Cutco knife sets and things like that, because you're going to lose out on the value of it.

Now, of course, there are those heirloom type items which truly are irreplaceable, which sometimes you just can't avoid the fight.

And that is understandable, of course.

But when it comes to the everyday household, personal property items, you really need to stress to beneficiaries.

We need to find a solution other than going to court, because the ultimate risk when you go to court over something like that is the judge may just decide nobody's going to get it, it will all be sold and then everybody will get a check based upon their percentage pursuant to that.

The judge can do that, certainly.

And I would say that's the most common outcome.

Why are you fighting over household personal property items?

I live realize that.

Oh, no wonder you're saying try to work it out with your siblings 100%.

Economically, it makes sense.

You could be losing relationships and many families do.

Yes, many families are completely torn apart after this.

And so not only is it just from a financial standpoint, you really could be losing a relationship with not just only your sibling, but your nieces and nephews and things of that nature.

And so try really hard to work those things out.

And use them and use a relationship, you know, on down the line.

And that carries even into the next generation.

Well, my mom had one sister who hid this or that or, you know, not good not.

Yeah.

Okay.

Let's talk about beneficiaries a little bit.

We obviously have addressed that here on LIFE Ahead.

As we've talked about our making a will and protecting your assets.

Jesica, you're the attorney here, so you take this question.

Let's say somebody who's passed away, you have the paperwork, you have the will and list of their assets.

And so you have a list that says, okay, Suzy is supposed to get the proceeds from this IRA, but all of a sudden, Matt, second cousin stepped in and said, no, She promised me that when we had lunch together a couple of months ago.

What do you do?

So really, we look at the documents, so oftentimes IRAs, annuities, life insurance, those things have beneficiaries which are actually things that are going to go outside of the will.

So when I'm counseling clients about their estate planning, I'm not only looking at the assets that could flow through the will, but the assets that are going to be going through beneficiary designations.

This is where most people are going to choose to have all of that match.

They want everything at the end of the day to go to the same individuals.

They're just going to happen through different mechanisms.

Yeah, but every once in a while we will have some people say, I really want this pot of money that has a beneficiary on it to go to this person in honor of all the what they did for me during my life, they took care of me when I was sick and whatever other reasons it was for, well, that beneficiary designation, because it's like a contract with the company that you have that account at that beneficiary designation holds.

So at the end of the day, it trumps the will.

It?

Yes, sort of in the sense that that is going to be governed by that beneficiary designation.

And the will is it it just doesn't matter in regards to that particular account.

Okay.

You people understand this or do they think that if it's if she told me that I was a beneficiary or it was in the will, that I should get it regardless?

Unfortunately, that does happen.

We've had cases where throughout somebody's lifetime they have said, oh, this bucket's going to go to you.

This this life insurance is it.

It's just they've said it over and over again.

Either they didn't do their own diligence to confirm beneficiaries were correct, or maybe they were just telling them a lie.

That does happen and it is unfortunate.

But at the end of the day, what's on those documents is what is going to control.

Okay, let's go back to probate.

That's exhausting to think about.

But, you know, this is like a part of the things that you're going to have to face or or your parents or neighbors or whatever.

So you often find yourself in conversations about this topic.

Let's go back to you, Ryan Probate.

Tell me a couple of the things that are typical, but you have to deal with typical situations.

Typical situations as far as contests, yeah, at the very beginning, sometimes there's a fight over who is going to be the personal representative, who's the who will be that person who's if they haven't been named by the the person who passed away.

Sometimes, even if there's a named personal representative in Indiana, the law says that the court can even go against the will and and appoint the best suited person, basically.

Yeah.

And the named person is not always the best suited person.

So that's that's sometimes a common fight, probably not that common, but it comes up.

Other than that, the day to day administration usually is not a huge issue.

It's that fight over this stuff.

Stuff that's stuff That's right.

Everybody wants the best or the most.

That's the most common issue when we're dealing with probate contest issues, in my opinion.

Yeah.

Yeah.

Are you agreeing with that?

Do you does that come to you or is that something that passes on to a probate attorney?

So generally it will start with me oftentimes because I will be talking with somebody immediately after they pass.

Generally speaking, people will called as soon as somebody passed within days.

And then we kind of work through some of the funeral issues and then we start talking about the will and the assets and how to proceed from there.

And so in those couple initial meetings, we are really chatting about the family and some of the issues that came up because a lot of issues come up at the funeral, high emotion and people haven't seen each other in a long time.

People are wondering what's happening to the house and the stuff in the house.

And so lots of different grief.

And so in those initial conversations, I'm kind of feeling out what maybe the issues are.

And sometimes I can see that the, you know, the writing on the wall, so to speak, that there's going to be a dispute here.

And so that's when I kind of alert Ryan to say, okay, I think this family may be going towards some fighting.

Here's the background.

Here's a picture of Ryan.

Well, a little bit.

I try to get, as Ryan says, we try really, really hard to counsel clients, to work it out and to really give it some space, give it some time.

These things really don't have to be done within a month of somebody passing or even right three months after somebody passes, you really can slow things down, let some of the emotions pass and then deal with it.

And so we really try to counsel all of that.

But there are times when I can just see that we're going down that road and there are certain timeframes that we do have to follow in an estate.

And so we got to make sure that we're at least keeping things somewhat moving.

Okay, Tough job that they have, certainly.

But and I think probably it's typical that people get impatient.

They think, well, you know, grandpa died three months ago.

Where's my money or where's my stuff?

You know, shouldn't this be settled by now?

It doesn't happen, does it, Ryan?

It happens in a lot of cases.

And it's sometimes they race to the courthouse, you know, going back to that fight over being the personal representative, some people want to race to file their petition first to ask the court to be appointed first.

And and the court usually doesn't know anything about that family, that situation.

Is there a will is or not a will?

They're dependent upon the information provided to them and so someone who doesn't have a copy of the will may not know better or may not want the court to know what the will says.

And then they petition to become the personal representative because they want that immediate power because of those immediate conflicts over what are we doing with the house and the stuff in it?

What do you do if down the line there's a dispute, maybe a relative, there's a personal representative that's been handling everything with the attorneys and maybe selling assets and kind of getting everything cleaned up, But then one member of the family comes up and says they did stuff wrong.

They aren't being honest.

I don't trust them.

What do you do, Ryan?

Well, personal representative is supposed to be providing information to the beneficiaries throughout the administration of the estate.

Some estates are what is called supervised, and that supervision is by the court, which really means you can't do anything as personal representative without the court's permission.

You can't sell assets, so you can handle the day to day paying bills and things like that without the judge's okay.

But when it comes to selling assets or making distributions, you have to have a court order before you do that.

Even in an unsupervised estate, a personal representative still has obligations to provide notice to the beneficiaries and ultimately then provide the court a final statement or accounting of, well, this is how I've distributed all of the stuff.

And it's at that point in time where a beneficiary or an interested party can step in and say, No, no, no, that's not right.

You know, and and you don't always have to wait till the end.

You can definitely do it before then, but usually that final accounting, that's the notice and the trigger for the if anyone has an objection to this, you better speak up.

Now.

If not, the judge may eventually then okay, that distribution, because again, the court only knows as much information as is provided to it.

Yeah.

So if nobody contests it or objects to it, the judge may not think there's anything wrong with what that person will represent.

And then you have to leave saying, well, we didn't do our jobs, but the judge spoke and that's it.

Thank you for coming and for sharing your information and education.

I hope you learned something.

I certainly did here.

And it's a very complicated did issue taking care of any probate cases or or winding up a will situation.

Meanwhile, we'll see you next Wednesday night right here at LIFE Ahead on PBS Fort Wayne.

Good night.

Beers Mallers - Elder law attorneys providing information on legal matters of guardianship and financial issues relating to nursing home care.

Beers Mallers attorneys can also assist with Medicaid requirements and help navigate difficult family situations.

Beers Mallers - Attorneys at law with offices in Fort Wayne, LaGrange and on the web at BeersMallers.com.