In this hour, Elder Law and special needs attorney Jim Koewler talks with Suzanne Newman about how to appoint people to represent you in situations where you’re unable to act for yourself – a who’s who of people who should be involved in your estate plan. We’ve been talking about powers of attorney and living wills. This segment focuses on after you pass away.
You can choose between a will-based estate plan or a trust-based estate plan. Even if you do a trust, make a will, which will catch anything forgotten in the trust. In the will, you name an executor, who is in charge of handling the will (or lack of a will) in probate court. The executor would be the most business-focused person we talk about in this hour. The job of the will is to handle your affairs and close up shop, and your stuff goes where you want it to go, strictly a business transaction. But the executor has to take it through the probate court process.
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*The following is the output of transcribing from an audio recording. Although the transcription is largely accurate, in some cases it is incomplete or inaccurate due to inaudible passages or transcription errors.
The following podcast is by Mr Jim Koewler, elder law and special needs attorney, helping and protecting those who need long term care. And welcome back everyone to answer for elders radio network. And we are here again with Jim Koewler, attorney at law specializing an elder law and Jim obviously is a nail, a member, and one of the things before we’ve talked about. I know we’ve given this website out, but just so everybody knows, Jim Practices in the state of Ohio and I just want to make sure if you’re outside of the state of Ohio and we’re talking about these concepts, you can find an elder law attorney by going to NAELA and NAELA DOT ORG and NAELA stands for the National Academy of Elder Law Attorneys and they, you know, will have a listing of elder law attorneys for your state. There’s one in every state, I know on this website, so certain sometimes several in every state. So please look for a good elder law attorney that is a member and good standing with Nayla and you should probably be able to find one that is absolutely competent to handle your your business, whatever you need to have done, and we’ve been talking this hour about who should you appoint, and this is an important thing to think about. Ya and Jim e’ve been so helpful in helping me think. You know, wow, this is important stuff to think about, because you’re right, it’s not just cut and dried of who should be who. You know, like you said, it’s really not. And we obviously been talking about you know, your power of attorney when you’re when you’re starting, you know when you can’t competently act for yourself. But then you move into a whole aspect of you know, a living will and do not resuscitate orders and things like that we talked about. So let’s move on to now, after you pass away. There’s a whole other individual, isn’t there? That needs to be involved. Yes, now most people can choose between a will based state plan. Remember, I don’t do a state plans, but I hung out, I hang out a plenty of state planning attorneys. Right, I tried it. I didn’t care for the work. God bless those who do that stuff. So I don’t have to, but I but I rob elbows with the plenty and it. I do some as I mentioned in a prior segment, I do estate planning for people with special needs or for families who have someone with special needs in it, because that is special needs law right. But it but it crashes into a state planning. But don’t do a state planning just for anybody here and there, because’s not my thing. But that so in thinking about this in a special needs context cause me to bring all these thoughts together. Who’s who and where the personality traits? So with a will? Now, okay, I’ve mentioned you can have a will based estate plan or a trust based estate plan. Okay, even if you use a trust, and trust helps you avoid have to go to probate court. Is the big thing about a trust. Makes it very private. Still have a will. They’re probably some things you cannot conveniently put into the trust. There’s some things you may forget to put in the trust. The will is the backstop anything you forgot. Remember you’re dead now it’s too late to change it here. It’s too late to add that dining room set into your trust. Okay, the dining room set that came over on the mayflower. Okay. So so have a will. No matter what you can you can be as simple as you want, and it’s. But it’s there to catch anything that missed the trust. Okay. And if you’re using a will based plan that definitely use. Get a will. Okay. If you’re doing neither, shame on you. So, okay, in the will you name an executor or executrics or administrator, depends on your state’s terminology. Okay. This is someone who is in charge of handling the affairs of the will in probate court or the lack of a will in probate court. Okay. And if you’re you don’t have a will, then you haven’t named anybody. Again, shame on you. But as long as you’re writing a will, one the things you want to do is name your executor. I’m just going to use o highest term, executor. We have the same term here. So, but you know, different states of these are again like powers of journey. These are state things. So Tennessee could be different. Sure, just pick it on Tennessee for whatever reason. Natually, I know I am, just because I’m then somebody who’s kid is in Tennessee that went to school with my son and just it’s stuck in my head. And but the the executor is high, the most business focused person anywhere on this list. Okay, we’re not worried about care here. You’ve died. Sorry, Miss You. Hope the hope, the wake was nice, but you have died and the job of the executor, the job of the will, is to simply handle your business affairs and close up shop correct so that everyone can move on with your stuff. It ends up where you wanted it to go, Yep, but the executor has to take it through the probate court process correct a State Administration is what I’m assuming it is going, okay, and what you want as your executor. Now, most people name their spouses first, and that’s fine, no big deal. Okay, if your spouse really can handle not handle the pressure, then fine, just tell your spouse I’m not naming you, sweetheart. I don’t think you want this, and they may say thank you for not naming me. But after your spouse, whether you name your spouse or not, then whoever’s next, and you again, like with the parers of Turney, wouldn’t name success for is if my if spouse chooses not to do it or is asked away before me, then this son or that daughter or whatever you want. The one who is most likely to follow the rules, get the paperwork done, jam it through and not cave to pressure from the other airs. Okay, that you want someone whose job is just to push this through with the court. Yeah, you don’t want someone who’s going to fight the court. The court’s tougher than this person. But it’s so interesting that you say that, because I did a weekend seminar one time with Susie Ormond, if you remember her, susy, she’s awesome, but one of the things she said, one of the things you should never do, and she put capital letters, is never make one of your airs an executor. And I thought, wow, I didn’t even realize that. But there that your’s exactly what you’re saying. It’s like, you know, you don’t want to be in the middle of you know, this is mine and that’s yours. Yeah, now it’s okay if you do, because then you can probably go without having to pay the executor if it’s a family member, because a a non family member executor is probably do some piece of the estate just for getting a job done. Sure, but but I understand where she’s coming from. This person doesn’t want to be fighting with siblings. Okay, and that’s fine. That’s a perfectly valid way to do as long as you realize it’s going to cost extra money to do that, and that’s okay. You it’s your choice, okay. And but I can understand where SUSI’s coming from, but you want someone who can just jam the thing through. So if you’re going to use someone who’s not a family member, then I would say using an estate administration attorney. So when it does, probably it all the time. Yep, they know the courts, they know how the court wants things done. I actually had a had a noontime conference, car zoom call today. We have one every month with estate planning and probate attorneys. They talk a lot of probate, but plenty of Medicaid comes up. So that’s why I’m hanging out there for potential referrals. Okay, and you know, they just we had a discussion today on rogue courts where the court is a local court is leaving and taking a path different than the state, than the state model. Okay, sure, well, that’s like that’s a court problem. Okay, but the An, a State Administration attorney, at probate attorney, is going to know when a court is going rogue and know how to deal with it. Okay, and these are just where they decide to go rogue, not on one case, but just oh, we’re going to do it this way in my court. Okay, okay, fine. The judges like the captain of the ship. That and that court room is the ship. The judge to the side. You can appeal, but why bother with appeal? I just cost money and hassle and heartache. And okay. So, if you’re going to go outside the family, yeah, and name a probate attorney as the executor, okay. If you’re going to stay inside the family or or dam a friend, stick with someone who will get the job done. And that’s that’s what’s going on here. This is the get the job done job. Okay, niceties aren’t necessarily an issue. Caring for someone isn’t an issue because they ain’t nobody to care for you died. This is simply clean up the the financial stuff, pack up the boxes, get it done so everyone can just say we’re done and move on. Yeah, yeah, this is strictly a business transaction and I’m assuming just if you’re in your like you know, maybe in your hearing, your s or whatever. The Nice thing about having an like a State Administration Organization doing it is you don’t have to worry about like if you have a family friend, that friend friend might be your same age and die before you. You know what I say. I guess my question would be is having an institution of some sort. It isn’t one individual, but it’s something that is a procedure. Is that craft? Yeah, now, states may not want you to name organization, but you can’t. If you’re going to go to a law firm, you can name the probate attorney to whom you’re closest and then name the associate. Just in case, we did FRENEY has retired or died or is ill or has cold or whatever at the time, you ass away. Okay, so again, like with the powers of her, name successors. But if you want to use a professional find the just name professionals in the firm of your choice. Right, if it’s a if it’s a solo line, then name a different solo as their back up. Right right. Go Out and meet these people that’ll be glad to talk to you. But because if they’re going to be named in the will, they’ve got a shot at getting a piece of the action, and if they don’t get a beast action, they probably have to do any work. So if they’re the first successor and never comes to them, fine, yeah, because it didn’t putting time into it. My father had a trust in, you know, a trust Rivy, a bank within a trust, our trust within a bank, and that bank or institution turned into being his executor. Yeah, and that, and upon his death he was they pay. I think his estate paid them so much a month while they were cleaning it up. So that’s what it was. It was real a simple, you know, like you said, very impersonal. It’s like it is, this is what’s going on, and that is in personal is. Okay, this isn’t strictly business there now, okay, yeah, if if there’s going to be fights over the seminal stuff, there was going to be fights whether you had a good executor or not, because it’s the airs they’re going to fight. It’s not the executive fighting. And we did oh so and you know. And if you got a fights over money, it’s because it that’s how your family operates. It’s all about the money. I’m sorry for your family if that’s the way it is. But but if you fights over sentimental stuff. No, mom promised me that painting that she did and at class. No, she promised it to me. Then go by what the will says. If it’s silent in the wheel, oh good luck. Yeah, exactly, because they ain’t a good way around it if it’s not in the will or the trust. Exactly, and I think that’s where you need to communicate to your yourloved one early if it’s if you want that painting, you should tell them in advance some day. You know, I would love it if you left that to me or something like is. Those problems there that caused me not to do a State Administration and not to do wills and trusts. I didn’t want to deal with that. Okay, I know, but it’s something looming care. You can be special needs. We’ve got a crisis. The crisis controls everything. Nothing what I want and I’m willing to fight over it. Yeah, I know, I can handle open because it takes the emotion out of it. It takes the next motion of decision making. But there’s plenty of emotion floating around and it’s it’s more I can do trying to help people not feel so bad. Okay, but if I have a family fighting over someone in long term care, I’ll say I’ll give mom or money back. You guys can go handle this and I’ll they’ll look at me like Oh, con’s know it as yeah, I got the leverage back now, don’t I shut up and let me drive the bus. Yeah, but I can’t do that with State Administration or wise and trust, because it’s all the sentimental, emotional stuff and just yeah, no, I’m not. I’m not built for that. I’m sorry. Yeah, so in our next segment, Jim, we’re going to talk about I want you to talk about trusts. Specifically. We came. I know there’s two different types that we’re going to talk about today and also I’m going to touch on HIPPA. I hope you can do that in our next segment and Jim will be right back right after this. State of Ohio residents, you have a friend to help you navigate long term care while protecting your assets. You can reach Jim at wwwing Seniorscom or just email him at j Koewler afe. That’s J KAYLOR AFE at protecting Seniorscom.
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Originally published February 24, 2022