I'm glad you're joining us this evening here on PBS for waiting for life ahead.

If you've watched this regularly, you know that our show is intended to give you information and education to help you with choices or decisions you have to make in your LIFE Ahead.

Well, maybe it's a legal thing that you have to deal with and I have the guy here that can give you some guidance.

His name is Brian Nugent.

Brian, you're right here.

Thank you for coming.

Thank you, Sanjay.

I appreciate it.

Brian, if you watch us regularly, you've seen just about every month for a number of years.

>> That's right.

And Brian, you specialize in elder law.

That's correct.

>> OK, so now if you have some questions for Brian, this is your opportunity to get some complimentary advice here.

>> He's he loves to do that.

The number is (969) forty seven twenty twenty seven point 27 twenty and we have a phone operator in the control room that will answer and talk to you for a minute.

Take your question and if you don't talk live to us right here on the air that's wonderful because then if Brian needs to ask something back, you're right there on the phone.

If not, you can leave your question and then I'll get that out here to the studio to me and I'll ask Brian for you.

Meanwhile, Brian, let's talk about probate tonight.

Yes, ma'am.

OK, well let's start I always like to start simple as we can.

Let's get a definition of probate what it is and why we even are talking about it.

>> So probate is a process whereby when one passes away if they have a will or even if they pass away without will, if they have assets that are over a certain value they haven't designated for someone to receive those when they pass with a beneficiary designation or by use of a trust there's a process whereby we open an estate with a court.

There's an advertising that we do in the newspaper to tell the world this person passed away and if you believe that they owed you money you are able to file a claim on that estate.

>> The court appoint someone called a personal representative to administer the estate and to make sure that those debts that are appropriate are satisfied and to distribute assets to those individuals that should be getting them through either who the deceased designated in their will, their last will and testament or through intestate succession.

The person didn't have their will so that process itself is called probate and we have court involvement and filings in that process.

>> It's not hard for it to take a year so seriously.

It does.

Yes.

In sometimes if there's disputes in families or arguments that are going on it could take longer and sometimes there are assets that are a little bit more complicated.

Maybe there's real estate that's a little tougher to sell.

We're struggling to liquidate an asset sometimes that stretches out that probate process as well.

>> Does everybody have to go through probate?

You only have to go through probate if you have assets that are that don't have a beneficiary on them that aren't jointly owned with someone else above a certain dollar amount, then you have to go through not not designate and for a certain person or a certain trust or whatever and then who makes the final decision on where it goes?

>> Yeah, well hopefully the individuals prepared something called a last will and testament if they have prepared a will we follow the terms of that will for those assets that don't have beneficiaries on them that aren't jointly owned, that are outside of a trust the will itself designates where those assets go.

If we don't prepare a will then there is something called intestate secession.

So I die without a will.

I died intestate and if you if that's the case there's a statute every state has a statute that indicates where funds are distributed should someone pass without a well.

So for example, if I married some may go to my spouse if I have children some of my children it's possible actually for parents to receive as well through intestate succession.

So if we don't have something in place, the state through its laws determines where the money goes and you can't really change that.

>> I mean you can't change the state Lister's the list.

>> That's the way that you got and now the people that are that may be beneficiaries through that intestate secession statute, they could agree for it to be for us to have a deviation what the statute states but no without folks agreeing to that deviation we follow that list exactly what if there's a disruption in the family and you mentioned sometimes it might be sibling rivalry or somebody says No.

Five years ago my mom or mom promised I would get that.

>> But if it's not in writing what happens mom's promises or sometimes people will say I've put stickers on the bottom of things in my house and that's how things are to be distributed or I promised my child they would get this or that and the kids are relying on that.

That doesn't have a lot of enforceability.

OK, if somebody relied on something to their detriment, maybe there's an argument that could be made that there do that.

Yeah, but generally no without it being in writing the fact that mom promised something it's unlikely that you're going to be receiving that you don't it seems like a modern trend because people seem to have so much stuff.

Are you listening?

I bet you to I think we spend half our life acquiring and the other half trying to get rid of what we've acquired.

>> But anyway, it seems like a popular thing now is to have estate sales because so many people are working now maybe the kids are scattered out in different states and it's just too hard to try to sell things or get rid of things one at a time.

If so, they'll hire companies and there are several of them here in Fort Wayne even that will bring a Kerrianne and go through your whole house organized everything to put it out on display prices.

>> Yeah.

How does that work?

Well, so somebody could take those items of personal property as their portion of the estate.

So let's say that I am sitting on this sofa and I want that sofa but the moms will didn't indicate that I was to receive that I could take the value of the sofa as my portion I'm supposed to get fifty percent of the estate so some of my estate could be recognized that I'm receiving as the beneficiary.

This sofa could be a part of that but it's very common actually that as folks are aging they assume that our children are going to want to have all of these items of personal property and so forth.

But the children have already they purchased those items that they want.

They have their home fulfilled.

So waiting until we pass to distribute those things isn't maybe as appreciated as it could if the recipients were just a little bit younger.

>> So I encourage folks to consider there's something in your attic if there's something in a closet that you aren't using, you're downsizing to distribute those things that you can enjoy other people using them you can enjoy what your children are using the grandchildren, using them etc.

But yes, there are times when we have assets in the state that we need to dispose of that no one that's able to inherit once those items.

So we will bring in companies like you're referencing that will indicate they'll itemize each item they'll take photographs of it.

At the beginning of my career we did live auctions where oftentimes you set up a tent in the front yard of the house of the individual that has an estate auction in that sense but we don't see that very often anymore.

Typically all of our auctioning for estates for trusts, it's happening online.

So those companies you were referring to Sandy , they'll itemize everything, they'll publish them online, they'll be online bidding, et cetera and that's how we dispose of those items.

And frankly I've been familiar with the states where people couldn't agree on the value of personal property.

They couldn't agree how much something is worth.

So how do we break that tie?

We'll auction it.

You can auction, you can bid against the rest the world and whatever it is that that value brings it, the auction is what you're going to be paying for it and sometimes folks are pleasantly surprised it didn't bring us high of a bid as they thought it might so get that item for lesser value and but everybody in the family can be very comfortable knowing it truly was an auction.

That's the fair market value.

That's what the marketplace was willing to pay for it.

So it was sold appropriately.

>> But yes, those companies are used on a regular basis and I know that they're very knowledgeable and qualified to do the pricing.

But if they aren't sure about something especially if it's like a collector item or a piece of art or something, they have resources where they can go to get definitely a professional quote from what that might be.

I've had art appraised in Chicago.

I've had art appraised in Florida so for sure we use appraisals to do that on a regular basis.

>> We have a caller OK, great.

>> Anne-Marie is watching us here this evening.

Thank you so much for watching your life .

I had it.

You have a question for our guest this evening for Brian Nugent.

>> Yes.

Hi, Brian.

I know you're Brian.

>> Go ahead.

OK, I have some money coming.

We'll leave interest-bearing accounts at high interest on it.

Can I put when I retired will this money to my kids and put them on a budget this morning so that's a year.

>> Yeah that's a great question.

You sure can put your kids on a budget.

We don't we don't call it that if you want to control something after you pass we typically use something called >> So in that you could say I'm going to put this money that you're receiving into a trust and I like to say to folks whatever you can dream up your attorney can put that in writing for you and you could do a trust and for each if he has more or one child for each of the children.

>> Yes.

OK, so I could do an individual trust for each child and I could say the child is to receive a certain percentage of that amount every year.

I could say that the child children are supposed to receive a certain dollar amount every year.

I could indicate that that the money is available to them if they need it and they demonstrate a need however they can't just get the money outright perhaps until certain ages so that we might do a distribution age.

>> Thirty five.

Forty five fifty five.

I've seen instances where as you're referencing Edwin, folks are concerned that if I give them money, if I give my kids money will be spent very quickly so they'll hold the money they'll allow it to grow during the child's lifetime and they may give it to them in a more mature age.

Sixty sixty five the thought process is if you get a little bit later in life I'm creating a retirement for you and so that's growing over time and you'll be able to enjoy that in retirement.

You're also not inclined to not work because you think Oh I've got some money coming.

I've got this money from Dad so I don't need to work as hard.

I've got that that pile of cash sitting out.

So most definitely when we can control how the money is used for your children or whoever else you want to remember by using trusts so you would be the set settler the grantor, the maker of that trust.

We have someone that manages the money called a trustee and then we have someone that's enjoying the money, that beneficiary.

So in this instance your children would be the beneficiary or beneficiaries and whatever you can dream up your attorney can help you are reduced to writing and make sure that that money is controlled and money isn't spent foolishly.

>> I think I'm using your words but it has to be a legal document for be there's a hole you couldn't for example to your point you couldn't put on a piece of lined paper.

This is what I want to have done.

It would need to be reduced to writing.

It needs to be notarized.

There are things that we want to have in that trust.

I would encourage you to speak with counsel and make sure that that's put in place appropriately.

But most definitely you can achieve that and I'm assuming that you can do different amounts if you want for if you've got three children it could be different it could be different times that you give them access to those funds.

>> Yep.

So sometimes what we'll see is if one child maybe we've helped them more during our lifetime.

So at the time of our passing we may think I'm not going to give them an equal amount because I've already recognized them during during my lifetime and it wouldn't be fair for me then to divide everything equally at the time of my passing.

>> You could to Sanjay's point you could say I'm going to give 10 percent of this money at a particular age increase it by twenty five percent another age thirty five percent the remainder to fourth date.

So again, whatever it is that you think is appropriate, you're able to reduce that to writing in the form of a trust and take care of it.

And I would encourage you when you're working with counsel let them help you or guide you to some different options that you may have.

They may be able to come up with some options you didn't even consider.

But thanks for the call and I really appreciate it.

>> I have a good explanation and I bet that happens a lot to people.

Well, Edwin might have inspired Terry.

He called in and Terry, you have a conversation or a question for Brian as well.

>> What is that Terry?

I yes, my sister in law was executor of her mother's estate and when she's the only daughter that lived here in the city, she had two sisters who lived at the city.

Well, when her mother died she went to go you know, do what she's supposed to do and here come to find out what the sisters from out of town came in.

You know, anybody and took her mom's lawyer and got herself made the executor of the state .

Now this one is this legal or if it is is there anything like if they're wills to be changed the executor of the state should be notified that she's being replaced because sure her mother was getting in that scene always had that car taken away from across.

>> Remember it was in that and I just didn't think that's right.

Well, you're on the edge of what my answer is going to be, which is what was her competency at the time that she signed the document?

>> Did she have dementia?

Well, there are something called testamentary capacity which is sometimes a little confusing.

So despite someone having a diagnosis of a dementia, it doesn't mean that they don't have testamentary capacity, that they can't sign a will assuming they understand who they are, they understand they're objects of their bounty, who it is that's going to be receiving the money generally their wealth and what's going on with that in the moment if they understand those things and the attorney that's preparing the documents believes that they are competent at that time they have that testamentary capacity, it would be OK for the client to sign now if the your mother in law didn't understand what she was signing or somebody misled her into signing something that she didn't understand what was happening, that's a very different situation.

So somebody wasn't being honest with her.

Somebody didn't explain the document she was signing that that causes some concern.

You asked also in your question if the initial personal representative that was appointed in the will if they have to be notified when there's a change in the position and the answer is no, they don't have to be notified.

>> So nothing there was nothing that was done incorrectly by not notifying your wife the question would be was your mother in law competent?

Did you have testamentary capacity at the time she was signing and testamentary capacity is different than competency and like I may not be able to have competency to enter to a contract but but I have testamentary capacity to be able to put my estate planning documents in place.

The courts want you to be able to determine who it is that's going to be handling things on your behalf.

The courts want to be able to determine where your wealth goes.

>> I would be more concerned if the how the money is distributed is really radically different if someone is serving as a personal representative in an estate and they're taking money or they're doing things that are inappropriate, you can always ask the court to remove their appointment as a personal representative.

>> The question would be in the will that your mother in law wrote did she radically change how the money was being divided and maybe favor this the sister in law that was from out of town that might raise a red flag more so than somebody else being appointed as a personal representative?

>> Well, now you said that you have to determine whether there what was the word you testamentary capacity, battery capacity.

>> Does a doctor decide that or how can you decide whether so normally if there's a question regarding someone if someone does or does not have testamentary capacity, the attorney most likely will speak with the client.

They have someone else accompany him or her to speak with the client may speak with a client on more than one occasion to make sure that they're consistent with what they're saying, that they're consistent with what they want.

If if there is insecurity surrounding all of that, we can seek a doctor's letter or indication the person has tested testamentary capacity.

But what has to we need to make sure that Dr.

understands that we're looking at testamentary capacity, not capacity in a broader sense.

So sometimes we do consult doctors, not always.

It's not a bad thing to have a doctor's letter to indicate that someone has testamentary capacity but it's not necessary it's not a requirement to have it.

OK, well we have another caller that's sending a question to us here and this is from Sam by the way.

Here's here's a question for you, Brian.

He said Sam Sam said my dad died what, 16 years ago and he left me everything but I haven't done anything about it.

>> Do I want to.

>> Did I wait too long or what steps should I take now?

Well so Sam thanks for the question.

I do appreciate your calling in very much.

It's not too it's not too long of course we encourage folks to do that as quickly as possible after someone's passed you have three years to probate a will.

If you didn't if you didn't probate the will then we are going to go through intestate succession.

But when you say he's left everything to you, I'm not sure if you're indicating that you were designated as a beneficiary on the accounts if you were designated as a beneficiary in the accounts by all means go to the bank, go to the institution where those assets are, bring a death certificate your father and they'll give those assets to you if your if your father's will indicates that you're to receive everything, then we may be a little late to probate that well we'll have to go through something called intestate succession but it's not too late for you to get some or all the estate depending upon if your father's married, if there are other siblings etc.

If there are other siblings it may be too late for you to get one hundred percent though you know I can understand putting it off.

>> I mean it's a lot of work for not for you you know what you're talking about but you know for the ordinary person if you don't have legal background you don't really know where to begin and you just need to make sure that you get somebody that you trust.

Larry called in also and he said what are your thoughts?

Oh, I like this.

What are your thoughts on A I generated systems doing legal work on creating wills and trusts.

>> I knew that would come along.

That's a great question, Larry.

I think that we are starting to see I do those things.

>> I would be very hesitant to think that I is to a point where it would be able to do all that work for you like a live person could do that's been in this for a period of time.

>> It isn't always that what you know, Larry, it's oftentimes what you don't know.

So when you're speaking with an attorney, the attorney should be challenging you when you're thinking about what if I do this?

What if I do that and the attorney would be able to speak with you about there's nothing wrong with that.

But you understand the consequent consequence of that decision is a but if you take this path, the consequence is B is are we sure that we want to go towards A do you want to go toward B so I can't say that I would be very comfortable advising someone to use A I to do their estate planning and preparing the well or preparing a trust.

The documents may be fine.

I don't know.

I would be concerned about what you don't know to ask the EHI to generate for right so it might be a little early in my world I mean five years there may be a point where you actually I I spoke not too long ago to social workers and the same question came up and I understand that they're developing A.I.

so that you can have counseling with A.I.

So I challenge the social workers in that presentation.

>> So Councilor, how they're talking about using A.I.

for counseling.

So what do you folks think about that as social workers?

Do you think it would be appropriate for your clients to have counseling through a I no, no, no that's impossible.

So you can understand in my discipline how I may also think you know, at least at this point I don't know that it's far enough along it may get there but the question isn't how good will the document be?

>> It's you have to put the right information in to get the information out that you need to have the documents that you need and you have to have the education and the experience to know the true possibilities.

>> Yep, right.

Exactly right.

OK, all right.

>> We're running short on time now, Brian, but if you want to speak very quickly about trust sure trust.

So one of our earlier callers said one Edward So trusts it's a it's a written contract.

>> It's nothing to be concerned about.

In particular you've signed a lots and lots of contracts in your lifetime.

A trust has three different main parties in it trust maker that's the settler, the grantor, the person has the money that asked for that trust to be written.

We have someone called a trustee.

That's the one that manages the assets inside of the trust and then we have a beneficiary lifetime beneficiary and ultimate beneficiary.

So during the lifetime of the person that made the trust who gets the money and ultimate beneficiary who would get the money when the individual passes away.

The thing that's nice about trusts is that it allows us to avoid probate process that we were talking about at the top of the show so that trust is like a giant beneficiary designation and it indicates where the money goes.

And if you want your money to be distributed at particular ages if this child is passed it goes to this child or this grandchild.

The trust allows all of that to be written within that agreement that that contract.

>> So a trust allows you to avoid the probate process which we talked about earlier can be not it's not hard for it to be one year in length.

There are some expense involved in that.

Of course going through probate it's public, right?

I mean anyone can take a look at your will so trusts it's like that beneficiary designation on your 401K your IRA but so much more than just the beneficiary designation.

>> I get it.

And you know, there are many situations where you might find a trust the best way to go especially well next time you come we'll talk about this for special needs or situations special needs trust any number of different types of trust special needs trust someone that is unable to manage their money.

We want to protect our money but it only benefits them special needs trusts are very important.

>> All right.

Well, see you've heard it from the pro here.

>> Thank you all for watching this evening on LIFE Ahead and of course we'll be back next Wednesday night with a new topic for you to discuss.

That's LIFE Ahead Wednesday nights at seven Thirty.

Have a good night