The Generations Legal Group Podcast
“Aging” or “Growing Old” has to be better than dying young, right?? Join Certified Elder Law Attorney, Todd Whatley, Founder of Generations Legal Group as he dives deep into the complexities, sensitive topics, and how-to’s of becoming an “aging individual” or caregiver of an aging loved one. This podcast covers senior-related caregiving issues, legal/financial issues, when to stop driving, late in life marriages, grief, death, and other end of life concerns. If you struggle with what to do next, how to cope, or simply the basics on what lies ahead as you or your loved one ages, this podcast provides solutions to your questions.
The Generations Legal Group Podcast
Mastering Modern Estate Planning: Updates, Strategies, and Avoiding Pitfalls
Is your estate plan up to date with your current life changes? Join me, Todd Whatley, as we navigate the complexities of modern estate planning, ensuring your assets are securely aligned with your future goals. This episode is your opportunity to master the art of estate planning by understanding the necessity of revisiting and updating your documents amidst changes in your relationships, health, and financial circumstances. You'll gain insights into the potential pitfalls of an outdated plan and learn why having a professional review is crucial for avoiding unintended consequences. Our office's malpractice policy and trust amendment practices underscore this importance, highlighting the need for a thorough update while preserving the integrity of your existing trust.
We'll unlock strategic tips to safeguard your legacy for future generations. Discover why leaving money outright to children can be fraught with risks and the benefits of setting up trusts with specific terms. With upcoming changes to the estate tax exemption in 2026, I'll emphasize the importance of proactive updates to mitigate tax liabilities. Beyond financials, we'll discuss reviewing healthcare decisions, keeping appointed agents in line with your current wishes, and the essential steps of conducting an inventory check and updating beneficiaries. Engaging family members and setting deadlines are key strategies for clarity in planning, leading to peace of mind and the celebration of a well-rounded estate plan. Don't miss the announcement of our upcoming series addressing 100 common estate planning questions, designed to equip you with all you need for future planning decisions.
Information to help you answer all of your questions about aging.
Welcome to Answers on Aging, the podcast dedicated to helping you navigate the complexities of growing older. Your host is Todd Whatley, a certified elder law attorney with a passion for empowering the aging community and their families, From finances and legal matters to health, long-term care and beyond. We've got you covered, Because every question you have we aim to answer. Dive into today's episode and let's uncover the truth about aging together.
Speaker 2:That's right. This is Todd Whatley with Generations Legal Group Answers on Aging podcast, and I am so glad that you're here and in my new effort to try to be more consistent in recording podcasts for y'all so that we can get information out there. I love questions, I love topics. If there's a topic that you want me to cover, please let us know. Office, probably tricia, at generationslegalgroupcom is a great place to email with podcast topic suggestions and I will do my best to do those, and so I'm recording this.
Speaker 2:Middle of December, end of 2024, and I think the new year is a good time to just kind of set goals and to start fresh. I know I'm going to hit my diet hard again the holidays have been rough in that way and so it seems like January. You're through the holidays, you're ready to make some changes and do some things that are beneficial, and so I want to talk to you about one thing that I would suggest, and I'm going to give you reasons for it. It probably sounds a little self-serving, but it's going to give you tremendous peace of mind and know that things are taken care of, and it's why the new year is the perfect time to revisit your estate plan. Okay, revisit your estate plan. Okay, you know I do a lot of presentations out at the Schmieding Center at Rogers Wellness and people always say, you know they'll ask well, I need to update this. Do I have to go back to the other attorney or can I use you? And you can use any attorney that you want to. And I would be most honored if you chose to bring your estate plan to us and let us look at it and get it updated. Okay, and I will do a podcast just on this topic, because it is a new change in our office procedure and it's you know it.
Speaker 2:It may sound bad, but just please understand, our malpractice carrier does not allow us to make amendments to trust that we did not create. Okay, I know I've done it in the past. So if you're listening to this and it's like, oh well, you amended mine, well, through a number of situations, we didn't get sued. I just became aware of this in other areas, mainly Facebook. Some attorneys on Facebook were like don't amend trust that were done by other attorneys, because if there is a lawsuit because I amended your trust, the lawsuit will basically allege that I looked at everything in your trust and I approved everything in your trust other than the few changes that I made, and that's not what I'm doing. Okay, I am, you know, making the changes that you suggest. But if there are things in the trust that I did not see, I was not asked to look at and I didn't charge you to look at, I could get sued on there being issues in that trust for a trust that I did not write and my malpractice carrier is not going to cover me for work that I did not do.
Speaker 2:So I will do a whole podcast on that and explain that. But so just understand, I would love to look at your trust and I would love to update it, and as we go through some of these things, I'm going to talk about things that need to be changed. That I probably do different than other attorneys, and it's a good idea to completely revamp this Now. When I say completely revamp, if you have a trust right now, we will not change the name of it, which means you do not have to change your deed, your bank accounts, anything like that. We'll keep the same name, but the trust underneath that will be completely new and updated and have the language in there that I think is most important, and I'll brush by those, but I'll probably do a podcast just on that.
Speaker 2:By the way, I am doing 100 questions, so over the next few months we'll be slowly putting out quick. I think the longest one's like 12 minutes, most of them are five minutes. That will answer questions. You know 100 questions that I will answer, and one of those is about different parts of the trust that I do differently than others. That I think is important. Okay.
Speaker 2:So, number one new year, new beginnings. Okay, it's the new year, it's time to kind of look at things and be up to date, and so the new year is a natural time for reflection and goal setting. Okay, it's also an ideal moment to ensure that your estate plan aligns with your current life and future goals goes. So, first of the year, we kind of re-look at things and it's just, you know, make one of your resolutions to get your estate plan up to date, get it absolutely correct, get it. You know where you want it to be. The importance of that is outdated documents can lead to unintended consequences.
Speaker 2:So, you know, five years ago, 10 years, 20 years ago, when you did this, you probably had in mind who gets what at that point in time. Well, now it's 20 years later. Probably those people are different. Those people have grown, those people have made good or bad financial decisions which could affect how you want to leave them assets, and I think it's. You know, this is just a good time to sit down with an attorney ideally the attorneys at Generation Legal Group to figure out, you know, what needs to be done differently. Okay, you know, think about it and, and you know, figure out exactly who should get what at this point in time, not 20 years ago.
Speaker 2:And healthcare okay, your health is probably different now than it was 20 years ago, and the people that you want making healthcare decisions may be different now than it was 20 years ago. And so you know new laws, family changes, shifts in your financial situation. You know you're hopefully you're better off now than you were 20 years ago, and your money may be different and you may want to benefit different people, and so just getting all of that together into your estate plan is important, and the first of the year seems to be a great time to do that. All right, I want to give you some signs that it's time to update your estate plan. So some things that have happened, or just let me give you signs, no-transcript one passing away who was named in your plan. That can be a concern. So if someone close to you has passed away, it's time to look at your trust and say, well, how does my trust treat the death of this person? Does their share go to someone else or does their share come back and equally divided between other people, possibly leaving someone out, that you now want to change Divorce? Okay, you've really. I highly recommend that as soon as you get through the divorce with your divorce attorney, you need to seek the advice of an estate planning attorney so that you can make sure your estate plan now goes the way that you want it to go.
Speaker 2:Some of the most awkward situations are when a man dies. He has a new wife, new family, new kids and his life insurance policy pays to his ex-wife and it wasn't meant to do that. Okay, that's the problem is, you know, sometimes in the divorce decree that's required. Okay, great, we understand that. But if it's a mistake in that life insurance, life insurance policy was supposed to go to the new wife, new kids and it doesn't bad. So great time to sit down and figure that out. Okay, I will say there haven't been substantial changes in the laws. I mean there's been no, you know earth shattering law changes to say, oh, you absolutely need to change your trust. That occurred back in 2005 with the Uniform Trust Code being passed, but since then there's not been major things. But there are, you know there's still situations occur that you know we just need to look at your trust and just make sure that your trust follows the current federal laws.
Speaker 2:Okay, and that's where you know we use software. Okay, we use a software program that we put in. It asks us questions and we put information in there and the information we put in changes. The next question and information we put there changes and it's very much customized to you. But the reason we do this is my software company has a team of lawyers out there looking at law changes, court cases, trends, different things going on, and our software probably gets updated no more than every two weeks and almost always they're like, hey, there's new changes. You know this has been addressed, this has been addressed based on this case law or this new and even trends in other states. We can take advantage of that in Arkansas to say, hey, if you know Oregon's doing this, chances are the you know our state's going to make those changes also, okay, and so you know it's important to have software that does that and keeps everybody up to date, keeps me up to date and make sure that everything's up there, all right Up to date.
Speaker 2:So family dynamics, family dynamics always change and you know things are probably different now than they were when you. You did your trust, and so make note of that. Think about it, your trust, and so make note of that. Think about it, and we can definitely get that in and get that looked at and make sure that your trust plan now fits with the family dynamics and new relationships. Have your kids gotten a divorce? Have your kids gotten married? Think about that.
Speaker 2:Estate planning documents typically don't expire as such, but I will tell you that a power of attorney that is more than 10 years old is going to cause trouble for your agent. When your agent walks into the bank with a power of attorney that is over 10 years old, it's going to be a problem, and you don't want problems when you're now truly incapacitated and we're relying on this document for the agent to do things. You don't want it. You don't want the bank to say man, we just you know, we know this doesn't expire, but it's old and we're not going to take it. Or you're going to have to do this and this and this to make us happy to take it. Now that's all not following the law. But if it's over 10 years old, if you did a document with me that hasn't been updated for 10 years, I will defend it. But I will probably charge for that, for the time that it takes for me to call the bank and get them to take your document, whereas that can all be avoided is if you'll just update it no more than every five years, and ideally every two to three years. Get it updated so that it's always fresh, always new, and there's no question.
Speaker 2:And people lose documents. Okay, so there can be missing documents that you thought was there, but somehow you took it out to make a copy of it and you never put it back. It's just there's so many things that can be messed up and you just want to make sure that it's done, okay. So what are the risks of procrastination? What if you're like well, todd, I'm just going to wait a little bit more? Well, the risk with that is unintended consequences. I just I encourage you to get your trust out now, look at it and make sure that it's doing what you want it to do, because if assets are distributed to the wrong individuals or under outdated terms, that's going to be a problem. And let me just say real quick, if you're still with me on this, there's two things that my trust do differently than most other, even well-known, established estate planning attorneys do, and it's absolutely worth amending. Estate planning attorneys do, and it's absolutely worth amending.
Speaker 2:Number one is notice how does the transfer of power occur between you as trustee and the successor trustee, which is probably your kid? How does that transfer of power occur? Okay, does it require you to resign? Does it require a doctor or two doctors', letters? Or does it require court? Okay, it can require those three things. Those are three valid ways to do it, but chances are you may end up in court to get that transfer of power to occur, particularly with the doctor. If you refuse to go to the doctor and if you're having some dementia, you're very paranoid, you're afraid people are trying to throw you into the nursing home, and so you're very hesitant to go to the doctor because you don't want to give up power. But you need to give up power and if you refuse to go, the only way we can do that is to go to court. With that other option, what I do in my documents is I flip the responsibility from your kids proving that you are incapacitated to you proving that you're not, and that way when the kids claim you're incapacitated, that they have to go to your doctor and prove that you're not incapacitated. Or if you refuse to go to the doctor, then 30 days later your successor trustee comes into power and we do that to keep you out of court. You don't want to be in court and the whole goal of a trust is to avoid probate. But if worded soon, it can avoid having to go to court to get you to get your successor trustee up to being the trustee.
Speaker 2:Oh, and the other thing is how do you leave money to your kids? Is it outright? If in your trust it doesn't say I leave it to my children in trust, you're leaving it to them outright. And if the kids go through bankruptcy, divorce or lawsuit they can lose the money that you just left them. And so my trust always leaves it to the kid in trust and there's terms for that trust so that those assets are protected, particularly from bankruptcy, divorce and lawsuits, and many trusts don't have that. Even trusts done by estate planning attorneys do not have that language in there, and I think it's imperative that that language be in there.
Speaker 2:Think about the financial impact that your estate planning is going to have. One of the risks of procrastination is like I just talked about. If you're leaving money outright to your children, it could have a substantial financial impact in that they could lose all the money that you just left them, and that's not good. That's not what you want, and so we need to take steps to make sure that the money will benefit your child and not be subject to those things. And if your estate has grown, in 2025, we're still at almost $14 million estate exemption per person, but January 1st of 2026, unless Congress makes some changes that number is going down to about $5 million. And if you have an estate that's at or approaching $5 million, there's some major tax issues that you need to be aware of, and we can help you with that. Your estate plan should take that into account and needs to be adjusted.
Speaker 2:Okay, and then think about healthcare decisions. Do your kids or do your agents that you listed under your healthcare documents a long time ago. Are those still the same people that you listed under your health care documents a long time ago? Are those still the same people that you want to make health care decisions today? Chances are they're not, and you want to make sure that someone who agrees with your end-of-life decisions is the one making those decisions, and so that needs to be updated.
Speaker 2:Now, how do you approach estate planning updates? So, basically, do an inventory check, review your assets, including real estate, bank accounts, investments and digital assets. Go in, add everything up together and see where you're at, and if you're I would say if you're at $3 million or approaching $3 million, with time and with the market, you're probably going to be at $5 million and possibly have a taxable estate come 2026. And so there needs to be some substantial changes to your estate plan. If you did not account for estate tax when you first did that, and then look at your beneficiaries, are they up to date on the accounts like life insurance, retirement plans? Are the addresses correct? If you have a daughter, did they get married and their name is now different? Daughter, did they get married and their name is now different? And you know that's not a legal issue with your estate plan because we basically know who that person is. But a lot of times people want their correct names in the document, particularly recognizing the fact that they've gotten married.
Speaker 2:Look at your current documents, read through them, look at them, make sure that they do exactly what you want. And then also look at those two things how does the successor trustee come into power? And also, how does your trust leave the money to those people? Is it outright If it's like the remainder estate will go to my children, period, that's outright. If it says it goes to my children free of trust, that's obviously not in a trust. It should say to my children in trust, with the terms of those trusts later on in the trust. That's what needs to be there in order to protect the assets from bankruptcy, divorce and lawsuits.
Speaker 2:And you know, I would suggest that if you are older if you're, I mean if you're young yes, please come see us. But if you're older, saying if you're pushing 70 or above, you really need to get the advice of an elder law attorney, someone who does elder law, who knows Medicaid, who works with people to get them long-term care because your estate, especially at that age late 60s, 70s needs to be worded and designed to help take into account long-term care. And if you're you know particularly older and you're not traveling as much, you're not going to be spending as much money as you did when you were younger. You really need to think about an irrevocable trust, and that's one thing that an elder law attorney can help you decide. Is that the right thing for you? Should you do an irrevocable trust to protect your assets if you were to need long-term care? That's a whole other podcast and we will address that later.
Speaker 2:Some of my tips on how to do this is set a deadline. Say, okay, I'm going to do this before March. Okay, we're going to get this done. Get it done. And if you call our office, we can definitely get this done in January, february and probably, if you work diligently with us, we can get it funded and make sure that everything is absolutely fixed by March 1st. Okay, but you've got to set a deadline. You've got to be serious. Let us know what your deadline is and we will do our best to fit within that deadline.
Speaker 2:Involve your family okay, let your family know what you're doing, and now that they're older and you know they've they may be middle-aged adults by now. We can include them, we can make sure that they understand what's going on and have open conversations with them about what your wishes are, particularly health care, if you don't want to be kept alive, if you want no resuscitation, you want no life-sustaining treatments. Your kids need to know that. They need to hear that coming from your mouth when you sign these documents, so that they know what's happening.
Speaker 2:Okay, and then, finally, once you do this, you can celebrate. All right, you can celebrate the accomplishment, knowing that you've done it. You can rest easier at night. You have peace of mind, knowing that it's absolutely up to date and it's going to do exactly what you want to do. God forbid if something were to happen soon. All right, and it's just. It allows you to have peace of mind and treat this as a major milestone.
Speaker 2:Okay, but hey, you set a goal, you did it and it's now taken care of. We would love to do that for you. Please call the office at 479-601-4119. We would love to work with you. We would love to help you get this taken care of. We've done this thousands of times. We know what to look for. We may ask you questions that you've never even thought about it, but it's going to give you that peace of mind to know that everything's taken care of and you have a team of lawyers who will back up these documents if that is ever needed.
Speaker 2:Okay, you don't get that from LegalZone. You don't get that from downloading a document from the internet. You know you want to make sure that you've done this correctly and that you've got someone there to fight with you to make sure this gets done, and so what this does basically is it sets a strong foundation for the future. You know it's done. Your foundation is there. This is going to go to the kids or the grandkids or to the charities that you want it to go to, and you know that it's going to be taken care of. All right, thank you so much for listening, thank you for joining us today and please share this. Okay, if you know someone who might enjoy this or has been thinking about it, I would be honored to be their attorney to help get this fixed, to get them back on track, okay, so thank you, please subscribe so that every time we put one of these up, you can be alerted and get some information and help yourself or help your friends. Okay, thank you all very much, and we'll see you next time.
Speaker 1:And that's a wrap for today's episode of Answers on Aging. Thank you for joining us on this journey of discovery and understanding. For more resources, detailed show notes and expert advice on the many facets of aging, don't forget to visit our website at wwwanswersonagingpodcastcom. Remember, growing older might be inevitable, but doing it with grace, knowledge and empowerment is a choice. Until next time, stay informed and keep those questions coming.