[music] Welcome to Mobile Estate Planning with your host, Michael Bailey. Over a decade ago, attorney Michael Bailey turned his attention to a state law after he recognized the unacceptable number of adults without proper end-of-life planning. Michael recognizes that many of his clients have difficulty finding the time for making a proper estate plan. That’s why he became the Mobile Estate Planner. He will go to wherever you are to assist you with your estate planning, including writing wills, trusts, and giving you the information you need to avoid probate. Now, ATX, Ask the Experts, presents Mobile Estate Planning with your host, Michael Bailey. [music] Good afternoon. Welcome to Mobile Estate Planning with Michael Bailey so we can do something besides just leave your family alone. Listening to 560KLZ or 100.7 FM or possibly on the KLZ 560 radio app. Phone number to talk to me on the air is 303-477-5600. And once again, that’s 303-477-5600. And my direct line is 720-394-6887. One more time, that’s 720-394-6887. So the state planning, always an exciting, fun and dynamic topic, has to be all three, otherwise we couldn’t talk about it, it’s just how it goes. Now, we don’t ever talk about anything boring here on Michael Bailey on Mobile Estate Planning. We don’t ever talk about things that are really quite the stretch that they apply to a state planning or maybe we do those things all the time. But I had a client yesterday who said, “So at what point will this all be legally binding? Is it legally binding now that we’ve told you or when is it?” And I said, “Well, I would love to think that I’m powerful enough that if you just tell me something that I can go into a court and say, “Oh, hold on, they told me this, I have notes, I can read back to you and tell you all of the things that you want to know so that we’ll have everything all set up and then everything will be great.” But I’m just not that powerful. And it’s, I don’t know if it’s a misunderstanding of what attorneys do or what we’re capable of doing, but I’m not powerful enough and I’m not important enough that when you, if you have a, if you tell me what you want to do in a state plan that I will then magically be able to get it all, have everything be done just because you told me. If those were the rules and the rules were set up that way, that all you needed to do was to tell an attorney what you want to do and then the attorney could relay that to the courts, that would be great. That would mean I would probably have to make sure that I take now incredibly detailed notes on every single thing so that we don’t lose any nuance. But that’s also the problem of just telling me as an attorney. The thing is that if you told me something you wanted and I turned around and said, “Hey, this is what we want,” then that would be, that would be great. Except for sometimes there’s misunderstanding, sometimes there’s miscommunications, sometimes what you tell me, I either don’t quite understand or I don’t, you know, I, I miss something or it’s possible that I misinterpret something, you know, all of those are possible. And so once you tell me things, I will put them together in written form. I send them out to you for review so we make sure that the written form is in fact conveying what you want it to convey. And then those written instructions, the written record of what you want to have done needs to be signed, witness, notarized and properly executed so that we know it’s what you want and not necessarily just what I want. And or if I miss it, understand something or misinterpret something, you know, and that’s happened from time to time. And I mean, it’s not quite as, you know, not too often, but often enough. And I mean, I can’t, you know, an example from the law doesn’t quite come spring to mind, but several years ago I was referring a basketball game. And we had a play right around mid court where a couple of players collided with each other. And I came together with my partner and I said, okay, so what do you have, you said, I have an intentional file. So I’ve got an intentional file too. I said, cool. So I said, I’ll go ahead report. He says, that sounds great. And so I went and I reported the file on the team with the white jerseys. And at half time he said, well, I had the intentional file on the team with the blue jerseys. So we each had an intentional file, we just had it against the opposite teams from the way we saw it. And we communicated, we said the exact same thing. We have an intentional file. We didn’t happen to say on which team. So really what we should have had was a double file where both players were assessed the file and then the ball was placed in play at the point of interruption. But instead we had a misunderstanding of who was going to call what and it resulted, I mean, what I called was in fact correct. There was an intentional file on the team that I called it on. But my partner also had an intentional file on the other team, just the direction and the angle with which we saw things, we saw them differently. And so we had, we thought we’d communicated. We thought we had it figured out, but we had a misunderstanding and a miscommunication. And so that misunderstanding, that miscommunication resulted in one team being penalized and not the other. And as a referee I try to avoid that, but it did happen. But I can see how if people thought that just telling me as an attorney what they want to do would be enough, then you’re putting an awful lot of faith in an awful lot of just kind of belief and understanding in me as an attorney that I’ll be able to then pass that along to the next to the court. And that type of thing is very much open for misunderstanding or open for disagreements or open for all sorts of things. So if a parent tells their kids one thing and the parents hear, and so the kids hear what the parents had to say and they understand it or interpret it in a certain way and then the parent comes and tells me, they may tell me the exact same thing, but I could hear or interpret it or misunderstand it in a different way from what the kids do. And then if a parent comes and tells me and then they go and they tell their kids something different, then if I’m the one that’s going to the court and says, “Oh, hey, this is what they said, this is how things should go, this is what we’re trying to do.” That’s great right up to the point where we have a misunderstanding or somebody doesn’t like what we’re doing and then we have problems and it is very problematic to get all of the things done. And then I’m at odds with the kids and the kids are at odds with me and the kids are saying, “Oh, well, this is what our parents told us and I say, well, I’ve got my notes and I’ve got my wrote down so that’s what they told me. And if they don’t agree, then suddenly we have angry kids versus an attorney and an attorney saying, “Hey, I’m just going with what they told me.” So that’s not how the system was set up. It’s not set up so that if you tell me something that I can go tell the court about it and the court will be like, “Okay, well, we believe you. We’ll just go with what you say. I’m just not that powerful.” So instead we have to do things the right way. We have to follow the proper protocols and I can’t just make everything up and solve everything for you. As much as I would like to be able to do that, it’s just not how the system set up. So you are listening to mobile estate planning with Michael Bailey here on 560 AM. Also heard on 100.7 FM. No number to talk to me on the air is 303-477-5600. My direct line is 720-3946-887. Once again, that’s 720-3946-887. The point at which you tell me what you want to do is not when it’s all said and done and everything is finished off and figured out that’s not how it works. As unfortunate as it is, I would like to be that powerful. That would give me the ability to help people. Then we could have deathbed type of estate planning, whereas somebody is dying. They can tell me what it is they want and I can take notes. I suppose in our technological age we could record everything and then have an audio playback of everything they wanted. That would be awesome. But that’s not how things are set up. I do think you… I can see a couple of problems that might come within. Audio recording of somebody, or even a video recording, you know, the joy of deep fake videos and things like that. Not that I have any clue how to do that, but people can and make you believe things. If you’re an audio recording, and if I was meeting with somebody and they’re like, you know, Michael, I’ve worked all my life. I have $100 million. It’s really awesome. I want to give it all to Luke. I’m like, cool. Then I come in and person dies and I go and I play the recording. They’re like, oh, we need to give $100 million to Luke. Now I think Luke would be happy about that. Is that correct, Luke? I’d be ecstatic, Michael. Do you really think anybody out there would just leave you $100 million because they listen to my show? I don’t think so. No, weird. I can almost say with absolute certainty that that would never happen. Right. So, when they say, I want to leave it to Luke, I mean, do they mean you Luke? Do they mean Luke Skywalker? Do they mean cool hand Luke? Do they mean my friend Luke from junior high or my friend Luke from senior year of college? I mean, there’s just so many different options. They might have been meant my friend Dr. Stephen Garrett Luke because he has cooler than us. He has three first names. I don’t have three first names. He does. But that’s why he became a, it’s probably not why he became a doctor. And now that he is Dr. Stephen Garrett Luke, Dr. Psychology, then we can, but, or somebody says, oh yeah, you know, I want to leave all the, I want to leave all the farmland to the youngins. Who are the youngins? Is that be the children? Is it the newborn farm animals? Is it the grandchildren? It’s hard to know. So even if we had an audio recording or a video recording, you know, it’s, it’s there for interpretation. You know, you go back to some of the things where they’re like, oh, this crime was caught on video. There’s no way they could possibly be exonerated. And you’re like, well, there’s legal theories that are involved. There’s mitigating circumstances. There’s any number of things that might be involved. And, you know, that’s kind of what happened. Go all the way back to the Rodney King trial and, you know, caught on tape. And oh my gosh, how can we possibly, you know, say that this isn’t what happened? We’re like, well, what preceded it? What made it happen? And, you know, then the riots after the Rodney King verdict. And, you know, I remember a truck driver, a regional denny got pulled out of a truck and beaten by the mobs that were there. And, you know, these things are caught on video. And you’re like, well, if it’s caught on video, then it’s got to be as clear as possible. I’m like, well, have you ever watched an NFL game or a basketball, an NBA or a, I guess, the insidivle to now too? And you watch, you know, you watch a play in real time. You’re like, okay. And then you take it and you start to break it down. You go in super slow mode and you go frame by frame. And you can see that this guy was reaching for the basketball and you can see that it brushed like one hair on his, you know, he had a long hair on his forearm that it brushed. And it’s like, ah, look, it was off him. So we’re going to the opposite team. And you’re like, you know, even sometimes there, you know, like unless you have like super HD cameras with the perfect, you know, you get down to it. And you’re like, oh, video may not be quite as precise as we would love for it to be. An audio might not be quite as precise as we would love for it to be. Even written words aren’t necessarily always quite as precise as we would want them to be. You know, different things like, so my daughter, her is my middle daughter, Allison. She’s the one that’s the volleyball player. She played on a volleyball team with another girl whose nickname was, whose name was Ali. So we had an Ali G and for me, we had an Ali B. We’re like, well, Ali G Ali B is going to be really hard to distinguish too. So everybody on the team called her Allison, my daughter. Now, she doesn’t necessarily go by Allison, you know, we call her Ali sometime when we can call her Allison. We used to nickname her the alligator because, you know, we’ve got an Ali and we’ve got an Ali Gator. But you know, that wasn’t necessarily what that was like her nickname as a little kid, not as a 15 year old volleyball player who would have it be terminally uncool to be known as the Ali Gator apparently unless she wanted a bad ass her nickname. And then it would be ridiculously cool. So it’s all in the eye to be holder. You can have misunderstandings there. You know, when I say I want to leave my assets to Caitlin Bailey, Allison Bailey and Carter Bailey, those are my three kids. So it would make sense. People would be able to understand Caitlin, Allison and Carter Bailey. But I’m guessing that somewhere in the United States among the 330 million people that are out there, there might be another Caitlin Bailey. It’s possible there’s another Allison Bailey. And my guess is there’s another Carter Bailey out there. So in my will and my trust, it’s a, you know, I’m pretty sure that I am referring to my three children to receive assets if my wife and I were to pass away. And it’s just, it makes sense. But you know, we’re going to leave $100 million to Luke. Luke, who, you know, Luke the producer, you know, they’re running back from my days at BOU, Mr. Luke Staley. I mean, you know, which Luke are we talking about? There’s lots of Luke’s, you know, like I said, I like Luke Skywalker. I would bet that Mark Campbell would be, he’s like, well, you know, I’m Mark Campbell. I’m not really Luke Skywalker. I’m going to go, you can’t, can you leave money to a fictional character? Probably not. But, you know, those are the, those are the type of things where when we say something, it always seems fairly obvious to us what we’re saying. But that communication of what we say isn’t always received perfectly by the other party. And that’s not because we’re necessarily trying to be confusing. It’s not because we’re necessarily trying to be deceptive. It’s just because sometimes we have different point of references and different things that we’re saying, different things that we understand. You know, if I say something like, well, you know, I need, you know, we need to work on a living will. To me, a living will has a very specific definition of being also known as an advanced directive and being the document that is kind of for the end of life. And when somebody is on life support and do they want life support to be continued if there’s no hope or what would they like to have happen there. For me, that’s a very specific definition of a living will. But when somebody calls me and says, yeah, you know, I need to set up my living will. I’ll usually, I don’t want to assume that they mean just a will or a living trust or a living will like I understand. I say, okay, let’s see what are you looking for? Well, I need a living will, okay, you’re just looking for something to give away your stuff when you die. They’re like, yeah, I’m like, okay. So I just refer to that as just a will because a living will has a different definition. But now we’re aligned on the same page and the same understanding of what we’re doing, which is good because then we can actually go ahead and do it as opposed to me saying, like, well, I’ve got to live. We have a living will. This is what happens when you die. You know, if you’re on life support and you want to be disconnected, we can do this. Yes, but what happens in my stuff when I die? Oh, you want to do a will. Well, yeah, this is just a look and they say, if they say, well, it’s a living will. I’m like, well, there’s a difference there. Sometimes people will say living will and mean living trust or a revocable trust. So I want it just because there’s a difference in the methodology and how we set things up. I have to try to clarify that with them so that we have an understanding of what we’re doing. So whether it’s spoken language or written language, an audio recording, a video recording, we need to make sure we understand what each other is saying and doing so that we can carry out the instructions. We are listening to, listening to mobile estate planning here on 560 AM KLC, also heard on 100.7 FM. Phone number to talk to me on the air is 303 47756000. And again, that’s 303 47756000. And my direct line is 720 394 6887. So you may wonder, why is it that with all the wonderful technology that we have of audio recording and video recording and why don’t we just put a video camera in front of somebody and say, okay, just go ahead and tell us what you want. Go ahead and tell us what you want to have happen to your assets and just let them talk and tell us what it is they want to do. And the correct answer is we don’t do that because that’s not the way the rules were set up. I’ve had people who tell me what they want and then they write it down on my intake worksheet and still I sit down with them and I’m like, okay, let me see if I understand this. And then we have to, I ask, clarify in question so that we can figure out what it is we want to do because sometimes we may not just what you are saying and what I’m hearing aren’t quite driving or aren’t quite exactly what we want. So we ask clarification questions. And if we just had a video recording and then that video recording were to be played and people are like, oh, well, we’d like to ask some clarifying questions. Like, well, the person in the video has passed on. So we’re going to have trouble asking clarifying questions of the person who has passed on. I mean, that we could, that would be interesting if you’re, you talk about being powerful as an attorney. Oh, you tell me something. Now I can just tell the court. I understand it. Or, well, if you know, I’ll take a video and now we can just replay that back. Oh, we need clarification. Well, now as an attorney, I have to be powerful enough that I can communicate past the great beyond. I can communicate with the other side. And now that makes me some sort of like, you know, spiritual medium or some sort of, you know, I can hold say ounces or something like that. And that’s a different type of power. And not one that I particularly want to do, you know, I have a license that says I can practice law. I don’t, is there a licensing board for say ounces? I don’t think there is. I, you know, question the efficacy of a say on it’s anyway, but, you know, that’s just me. I mean, you know, to be clear, I do not own an OEG board. Luke, I know you’re going to ask. I was. Yeah. Thank you for clarifying that. Yeah, I know. I mean, I’ve seen them on movies. I’ve never actually seen one in real life. I mean, I imagine they exist. I just don’t have anything to do with them. Yes. Understandable. Looking to, you know, not looking to take on. So, you know, we’ve, so in the law, we’ve settled upon you have to write everything down and write it as clear as possible. And then once you have that written thing, it needs to be, I mean, I always make sure that my clients read and understand the documents and make sure that it’s doing what it says to, you know, as well as I can. I mean, I’m not going to, you know, sometimes I had a client this afternoon who was like, “Wait a minute. So what all these tax things mean?” I’m like, well, they mean that taxes can be collected on a tax income, an asset that has, you know, a taxable attribute to it and can be taxed either at the trust level or it can be, you know, instead of the tax being paid at the trust level, it could be passed on to the beneficiary. And then the beneficiary could pay the tax. Sometimes the tax rate of a trust can be higher than that of the individual. And so it makes sense to take whatever that asset is and pass it through a trust to the individual and let the individual pay a lower tax. So for instance, if a trust were at a 30% tax rate and the individual, when they receive this asset would only have to pay 10% tax. Why then? We’re saving 20% tax by distributing it out. It just makes sense. And this client asked me, “Well, you know, is that up to the trustee?” I’m like, “It is their decision, yes, but I would think that they would want to check with the beneficiaries to figure out which is the best way to do this because they are probably wanting to pass as much of your assets on as possible to the name of beneficiaries or the heirs instead of paying it over the government.” Now, I have no problem paying taxes to the government. I just don’t want to pay extra taxes to the government or more than what the government needs. The government appears to always come up with enough money. And I mean, it’s not 100% true sometimes. They have to borrow it and things like that. But, you know, the government tends to find ways to increase their tax revenue to pay for whatever the government wants to do. So I don’t feel the need to send them any extra. I don’t need to send them a voluntary donation. I’m like, “Hey, you know what? I’m feeling generous today. Why don’t I send the IRS an extra hundred bucks today?” Yeah, they could use it. I don’t think anybody’s ever actually had that conversation in a seriousness other than, you know, I added in a ridiculous example right here where everybody’s like, “No, he wouldn’t want to do that. That doesn’t make any sense.” But, you know, in the law, we’ve settled along having it written and having those written words being what controls instead of what somebody told somebody else in a different setting. And, you know, sometimes kids will be like, “Well, no. This isn’t what mom and dad told us. I’m like, “I’m sorry. I just, this is what they told me. And if they updated it with me, I would be happy to have the updated version. If they updated it with somebody else, then you need to find the updated version with somebody else.” And we need to, you know, this we’re going to, we go with that. And it needs to be signed, witness, notarize all those type of things. I had a gentleman who I was working with him several years ago and then I sent him draft copies for review and kept trying, I called him for probably six to nine months trying to get it all finished off and then one day I got a call from his brother. And apparently this gentleman had passed away. And before he passed away, he had sent his brother a text. And the text message says, “Hey, just so you know, everything that Michael Bailey wrote, you know, let this text serve as evidence that I want to do that and I’ve signed it and everything’s okay.” And so he called me and says, “Well, is that enough?” And I said, “No, it’s not. You need to have a signatory, you need a witness notarized.” I mean, you know, it just, it didn’t meet the technical requirements. And so, you know, unfortunately all the work that we’d put in to try and to get everything done because we didn’t finish it the right way and we didn’t follow the rules. It didn’t reach the level of being legally sufficient and legally effective enough for it to do what he wanted. So he ended up, yes, it’s ended up going through and being passed according to the Intestate Statute, which is when you die with how to will because we didn’t get it signed, witness, and notarize in the six to nine months I tried to track him down. So don’t let that be you. Get your state plan done. Call me if you want and I’ll be back next week to talk to you some more. Thanks and bye. [Music] Mobile estate planning with Michael Bailey will return to ATX next Wednesday at 230 here on KLZ 560, AM 560, FM 100.7 and online at klzradio.com.