Ask Jonathan Anything: Part 4

Raena: [00:00:00] What is probate?

Jonathan Breeden: Probate is when you have died and you have a will or don’t have a will,

and the courts are tasked with dividing up what you had,

either via your will, how you wanted it done in the will, And if you don’t have a will, that means you died intestate without a will.

And there are statutes that say what happens to your property if you die without a will. And for all of you that are married with children, it doesn’t all go to your spouse. You know, keep that in mind that ultimately the first line of Intestacy is the spouse gets half and the kids get half.

and it’s complicated Once again going to a lot more than that,

but get a will if you don’t have one

you know, make sure it’s clear is what you want to happen

Narrator: Welcome to another episode of Best of Johnston County, brought to you by Breeden Law Office. Our host, Jonathan Breeden, an experienced family lawyer with a deep connection to the [00:01:00] community, is ready to take you on a journey through the area that he has called home for over 20 years. Whether it’s a deep dive into the love locals have for the county or unraveling the complexities of family law, Best of Johnston County presents an authentic slice of this unique community.

Jonathan Breeden: Hello and welcome to another edition of the Best of Johnston County podcast. I’m your host, Jonathan Breeden. And today we’re going to do a segment. We call Ask Jonathan Breeden Anything.

Our normal format is where I, Jonathan Breeden interview, interesting guests, community leaders, politicians and stuff throughout Johnston County and other business leaders in Johnston County and bring you their stories and why they love Johnston County.

And every once in a while, we do one of these episodes. Episodes where we just sort of ask me anything. And these questions often revolve around family law, which we do estate planning and stuff like that. So this is gonna be one of those episodes called Ask Jonathan Breeden Anything.

We have our social media [00:02:00] coordinator, Raena Burch here. She’s going to ask me a series of questions. I am not absolutely sure what the questions are, but hopefully I’ll be able to get the questions right and maybe you’ll learn something and maybe we’ll learn something together. Welcome Raena.

Thank

Raena: you. All right. Are we ready to get going?

Jonathan Breeden: I’m ready.

Raena: Okay. First question. What is estate planning?

Jonathan Breeden: A estate planning. I think a lot of people think of it is just their will, but it’s so much more than a will. And there’s so many complexities to it that I think a lot of people don’t understand. So when I hear the word estate planning, I’m thinking of the total thing you need while you’re alive and while you are dead.

So when I’m thinking of doing estate planning and we do estate planning here at the Breeden Law Office, we’re looking at definitely a will which most everybody needs.

But we also include with that, what we call these living documents, a healthcare power of attorney, a [00:03:00] durable power attorney, a living will, an advanced I mean, the health care is like an advanced health care directive. There’s a HIPAA waiver you can do that allows other family members and stuff to be able to get information about you and not have to worry about HIPAA. You’re like somebody who’s like a special person that they could share information with.

So we try to do all of that and I don’t think everybody thinks about that when they think about a state planning. I think people are thinking, okay, I need a will and they’re often not thinking about these other documents that we call the living documents because they’re documents that the one of the once we talk about as a healthcare power of attorney.

This allows you to appoint somebody to make healthcare decisions for you if you are unable to do so because you are in a coma, you’re unconscious, you’re just not in your right mind.

is, I guess, the best way to write it, to say it and you’re saying, [00:04:00] okay, if this happens, I want you Raena to make medical decisions for me, Jonathan, and those are given to your doctors in advance.

And you also keep one at your house and that your family members know where it is because you never know when you’re going to need to use it. A healthcare private attorney allows somebody to consent to medical treatment on your behalf, can consent to you having a limb removed if that needed to be what happened.

It also allows them to especially with older people who are not good with paperwork and stuff, it allows you to sign them in and out of the hospital and bind the patient to pay the bill. It also gives the hospital and the doctor some protection that you cannot sue them based on the decision, the healthcare power of attorney made, if you come back to life, you heal and think, well, I don’t like that decision.

Now, they’re still,

liable for any general negligence they may have committed in the act, but like, if you [00:05:00] wake up and say, I didn’t want my leg taken off. Well, sorry about that, your healthcare directive said that this person can make the decision and given everything they thought that was the best thing we could do to save your life.

So there’s a durable power of attorney which allows somebody to be you financially if you were unable to do that. that can kick in when two medical professionals say that you’re unable to make your own decisions, because you, whether it be dementia, or Alzheimer’s, which I’m terrible at saying that word.

You know, that type of stuff just being some senility, where you’re unable to make decisions financially. This is, pay your bills, pay your mortgage, receive your social security, pay your taxes, file a tax return ,do banking, all these things that you just do, but somebody has to do that for you because you’re unable to do it. You don’t understand the nature of, of your money or what your bills are, and you need somebody to do [00:06:00] that for you.

And so if that happens, if you have a durable private attorney, which you can only do any of these documents when you are competent and we could do two podcasts on whether you’re competent or not. Okay.

But you have to be competent to grant any of these will power of attorney or whatever, so you do these in advance. So if something were to happen and you would be unable to make decisions for yourself, your healthcare decisions is one thing, your financial decision another.

A durable power of attorney could sell your house, could buy and sell stocks, whatever they could do that’s got to be in the best interest of you. There’s a fiduciary duty there, they can’t steal the money. All that stuff they have to do. Right, Right. And unfortunately you do this long enough and I’ve seen a little bit of everything, but they’re not supposed to.

And then there’s the living will and the living will is a directive. Once again, it’s another advanced directive that you make while you’re confident where you’re instructing that your doctors that if you are being kept alive by artificial hydration or [00:07:00] oxygen or right, I get it all mixed up, but basically they’re artificially feeding you.

You’re artificially being kept alive by a breath machine, you’re in a vegetative state. Right. You want them to discontinue extraordinary means and let you go ahead and pass away. And a living will does not come into effect or where it’s really needed in all that many deaths because there’s not, it’s not often that people are essentially brain dead. You know what I mean?

That’s just not always how it goes and what I try to tell people is when you talk about a living will, the key thing there is it’s not a do not resuscitate, it’s not a DNR that where you are. if you have cancer or some sort of terminal illness and you’ve called in hospice and it’s just a matter of time and when it is your [00:08:00] time, you’re ready to go and you don’t want them to come in and do CPR and the defibrillators on you and all that, you just want to go on home.

That’s not a living will because in that scenario you still have your faculties almost always. You’re often, you can be having a conversation, you can be sleeping a lot, you could, you know, maybe have a heart attack you know, at some point, particularly when you’re right, you’re aware of what’s happening, you know, so you’re not in a vegetative state, you’re not being kept alive by artificial means. Now, if you do not have a and DNRs are do not resuscitate things, they’re separate, they’re not the living will.

Most of the time attorneys don’t do those, hospice nurses are the ones that do them mainly. And I think that’s important for people to understand because a lot of people think because they have a living will that will protect them from them trying to revive them if they pass away at home or whatever and that’s not what it does. And so, [00:09:00] I want you take nothing else out of this podcast, know that a living will and a do not resuscitate are two different things.

The living will, if you know, and so where you see a living will come in is if somebody has been in a bad car accident and they’re in a vegetative state or they’ve coded, they’ve had a heart attack and they’ve sort of been brought back but they lost enough oxygen to where they don’t have a lot of brain function, that’s when you see most of the living will type situations come in.

But you should have one, even though it doesn’t come in effect in the vast majority of deaths in the ones that do. It’s very important because that is telling the doctors what your wishes are and that is you speaking to them, even though you’re not able to speak to them, and I think that’s important. So I think everybody should have a healthcare power of attorney, a durable power of attorney, and a living will, which are these living documents along with a will.

Raena: I agree. And also, you know, when it comes to like the healthcare power of attorney, whatnot, like don’t wait until you’re 70 years, like anybody of any age should probably [00:10:00] have a healthcare power of attorney just in case.

Jonathan Breeden: Correct. And, one that we do a lot of and for parents out there that are listening to this podcast, when your child goes to college as an adult. They are adult, yeah, they’re your child and you’re paying for them to go to college, but you have no access to their medical records. You have no access to their educational records either. You know, My parents used to say, well, I pay the bill, we’re going to see your GPA, but they did not have the right to access and they don’t have the right to make health care decisions for you.

So every August we do a few normally health care by our attorneys for young men and women who are going off to college so that their parents can make healthcare decisions for them if they were to have an accident or get information from daughter’s offices or medical providers, because they could be a long way away. You know, And they want to be able to call and talk to the doctors and the nurses. And if they have that health care provider attorney, they’re able to do that.

Have family law questions? Need guidance to [00:11:00] navigate legal challenges? The compassionate team at Breeden Law Office is here to help. Visit us at www. breedenfirm. com for practical advice, resources, or to book a consultation. Remember, when life gets messy, you don’t have to face it alone.

Raena: All right, next one. What does my estate include?

Jonathan Breeden: Your estate includes, I guess the easiest way to say it is pretty much everything you own. When you die if we’re talking about in an estate planning situation, like you have a estate while you’re alive to whatever you’ve amassed

Raena: But if you see a house It’s no longer part of your estate

Jonathan Breeden: Right.

So I would say that the estate is what you have and the key thing about as far as the state planning is concerned is that people need to understand what is conveyed by will and what is not. So, wills are good for conveying real property, houses, [00:12:00] personal properties, cars, this chair, the table, the jewelry you’re wearing.

They also are good for sort of disposing of everything that you might have that you don’t know that you own sort of as a catch all phrase, sort of these intangibles that are out there. What wills do not include unless you specifically make them include it by making beneficiary is IRA’s, 401k’s and life insurance and most bank accounts.

And so people need to understand that you think, well, I got a will and it says everything to my wife and my wife predecessors me to my children, which is what the most will say. But those other, the IRA, the 401k, the life insurance, your stock account with ever Jones or Scott trade or whatever, all have their own beneficiaries [00:13:00] that are not part of the will.

If you would like those assets to go into the will and be distributed as the will says, you need to name your estate as the beneficiary of those policies. Because if not, those policies are going to pay out outside the will, which is fine too. It’s often cheaper and easier and can avoid some of the probate fees to do it that way.

But if you think that there’s a chance that a child may collect one of these policies, it is very crucial. Speaking of minor children, I believe to make the beneficiary your estate so that it will pay into the will and the will will dictate. when and how the child gets it and names a trustee for the child to manage these assets that the child may get.

Now the child’s probably only gonna get this if both parents were to die or if one parent dies in a divorce situation and they want to hold it for [00:14:00] the child when they get older that kind of stuff.

So you have to keep that in mind and I know it gets a long winded and confusing and I’m trying to do lawyer talk here. I’m trying to be, but that’s the thing. So your estate kind of is what you have, but as far as what the will is, does automatically. If you have a will, just keep in mind the 401k, the IRA, the stock accounts, they’re outside the will and you need to look at those beneficiaries.

And if you’ve not looked at your beneficiaries in a long time, you should look at those every five years is what I tell people because things change. Have you gotten divorced just because you got divorced? does not mean that the beneficiary of the life insurance changed. If you don’t change it and you die 20 years later, the first spouse is going to get the life insurance.

I get that call at least two times a year and have for the 23 years I’ve been practicing law. I mean, they just forgot so it’s not automatic. So you need to make those changes and review those beneficiaries. I know when I started out, I bought a life insurance policy [00:15:00] after I got married, I didn’t have any kids.

So it was my wife and then it was my niece and then after I had kids, I changed it to my wife and then to my estate so that if something were to happen to both of us, this money from this life insurance policy, we’d go in the will. The will says what’s going to happen, it says when the children get it, they get it at 25 I think is what I wrote.

Because if not, if you don’t do this, the children get whatever becomes theirs at 18. On their 18th birthday, they can go to the clerk of court who has held this money for them because that’s where it gets paid into and the clerk will write them a check. And I have seen where a 18 year old being handed a million dollars goes extremely badly. So please be thinking about these things.

Now, if you do not have a plan, if you don’t have a will, if you’ve not looked at your beneficiaries on any of these policies that you have in the last few years, do it right now. Make a note as you’re riding around, listening to this, ask Siri to make a reminder to [00:16:00] you or whatever, to look at your beneficiaries and see if you have these documents because it doesn’t matter till it matters and then it’s too late.

Raena: Yep. Exactly. All right. Next question. What is probate?

Jonathan Breeden: Probate is when you have died and you have a will or don’t have a will and the courts are tasked with dividing up what you had either via your will, how you wanted it done in the will, And if you don’t have a will, that means you died intestate without a will. And there are statutes that say what happens to your property if you die without a will.

And for all of you that are married with children, it doesn’t all go to your spouse. Keep that in mind that ultimately the first line of intestacy is the spouse gets half and the kids get half. And it’s complicated Once again going to a lot more than that, but get a [00:17:00] will if you don’t have one, make sure it’s clear is what you want to happen.

And then, if somebody dies whether they have a will or don’t have a will, if all of their stuff is not going to trust that’s a whole another debate than a somebody goes to the courthouse, you go to the clerk of court in your county and you open up an estate you know, and that’s when it starts to go into probate and they want to see if there’s a will, if there’s not a will, they got to figure out what to do with what there is.

The clerk will appoint a personal representative slash executor. It could be the person in the will if you don’t have a will, they’ll pick somebody to do that and that person’s supposed to amass everything and figure out what there is and who’s owed what. I mean, kind of, you know, what are the debts and what are the assets? And they go through that process.

Raena: Yeah, I know. And in my experience, I know like, obviously with my ex. He, I’m his even though he’s my ex and whatnot, I’m still his beneficiary because should he pre-decease me, like, still I’m gonna be raising the kids by myself at that point. Correct

So, we agreed that, you know, either way [00:18:00] that goes it’s just best to skip probate and just take care of the kids as whoever, they end up with.

Jonathan Breeden: Right. right, right. We got time for one more here.

Raena: All right. One more. What is a living trust?

Jonathan Breeden: A living trust is where you put your assets while you’re alive into a trust and the trust then becomes the owner of the assets and you’re alive and depending on which kind of trust you create, you can take assets in and out of it.

And then when you die, you can avoid probate largely because the trust survives, and the assets in the trust survive. So the trust doesn’t die, you die and so then the trust continues on and you can put your house in it, your cars, you put all kinds of stuff in it. And that way you then don’t have to either go through probate or the probate process is fairly simple because the trust continues on.

There’s a trustee to say [00:19:00] what happens to it, manages it, out what’s in it to whoever you wanted to have it when you created the trust and that kind of stuff. And living trusts are popular and they’re very helpful and they’re particularly helpful if you have a disabled child or a disabled adult and you want them to be taken care of it.

They’re not going to be able to manage this themselves later on. So, living trust are a tremendous asset and you can set them up where you have complete control and you can take stuff in and out, or you can set them up where you have very little control. And the trust is its own sort of thing.

You would need to talk to a state planning attorney about what would be best and whether a living trust or probate or whatever, I mean, a will or better for you. And they probably can help you out with that. But some people have found living trust to be extremely helpful.

Raena: End up. Alright!

Jonathan Breeden: All right. Well, thanks a lot. That’ll do it for this episode of the best of Johnson County podcast, a special edition, Ask Jonathan Breeden Anything where we talked about wills and [00:20:00] probate and living trust and stuff like that.

If you’ve enjoyed this podcast, if you would do us the favor of liking or following or subscribing to this podcast, where you’re watching it, whether it be on YouTube, Spotify, Apple podcast, or off of our website, that would be great.

So you’ll be aware of future episodes of The Best of Johnston County podcast. They come out every monday and we’ve got great guests, they’ve already been on. If you’ve not heard Adrian O’Neal, the parks and rec director for Johnston County, or Patrick Harris, one of the Johnston County commissioners, please go back and listen to some of the previous episodes.

I think you will find them enlightening, entertaining and educational and keep following us here. We’re going to have a lot of great guests coming on over the next few months. And I think you’ll learn a lot and you’ll learn as much as I’ve, learned a ton about what is so great about Johnston County.

And that’s why we’re doing this. Thanks a lot.

That’s the end of today’s episode of Best of Johnston County, a show brought to you by the trusted [00:21:00] team at Breeden Law Office. We thank you for joining us today and we look forward to sharing more interesting facets of this community next week. Every story, every viewpoint adds another thread to the rich tapestry of Johnston County.

If the legal aspects highlighted raised some questions, help is just around the corner at www. breedenfirm. com.