So what are the practical steps? What are the considerations? What can you do?

So how to avoid probate if you own a co-op apartment. The reason we are talking about this today is because I had a couple of clients coming with exactly this question to me. And it happened in the past, and it takes a bit of back and forth thinking.

And obviously the best is to discuss it with an estate and trust attorney. But once again, this question very often pops up if there is a change in circumstances in a family who owns a co-op apartment, and people start to think about legacy, about their beneficiaries. And the most important question that pops up is, how can we simplify the process when we no longer there?”

“How can we make life easier for whoever takes over our co-op apartment? What can we do to make it more simple? So Dalia, who do we have as today’s guest, who will help us to talk about this?

Orsolya and I are so excited that joining us on our podcast today is our very favorite trust and estate attorney, Bracha Etengoff. She is a wonderful trust and estate attorney with a lot of knowledge, and she’s going to help us out today through this somewhat complex topic. Bracha can be contacted at her email, bracha at brachalaw.com.

And her phone number is 347-640-0993.

Of course, that is all on our website, and we have all the resources to get in touch with her if you have any issues or anything that you need to get in touch with her about regarding these topics. So we’re really excited to have her today because probate is sometimes a scary word for attorneys who don’t do probate, especially some real estate attorneys. So it’s great to have her with us to help us out with some of these topics.

Welcome, Bracha.

Thank you so much, Dalia. It’s great to be here.

“Bracha, so let’s dive in. So what is probate and what is the problem for a co-op apartment? So many New Yorkers own a co-op apartment.

Sometimes it’s the only ownership is a co-op apartment. So what it means for them if the apartment has to go through probate. Can you let us know?

Sure. So probate means taking a will to surrogate court to get it validated, kind of put into effect and getting an executor appointed to the estate. If you don’t have a will, there’s a very similar process called administration.

But either way, it does tend to take a long time. So what do I mean by that? Six months, a year in downstate New York, where we have most of our co-ops, we have a backlog in these surrogate courts.

And the problem we have with co-ops is that the shares are personal property. They’re not real estate. So a tool like a transfer on death deed that will apply to a house or a condo, and allow it to pass outside of probate, is not something that we can use for a co-op.

Interesting. Okay, good to know

“What happens now during the probate?

Like, can you sell the apartment? Can you rent it out? What are the beneficiaries’ obligations as far as like having to pay the charges?

You know, how does that all work?

So you can’t sell the apartment until that executor is appointed. And that happens when the surrogate court issues what’s called letters testamentary or letters of administration. Until you get those magical letters, you’re not selling your apartment.”

“You’re also not renting out a co-op with a fresh lease. On the other hand, if there’s a tenant living there already, they have the same rights as other tenants, you know, in New York state and New York city. And you’re not, you know, barring the door on them either and locking them out.

They can continue living there.

Dalia, now let’s crack this open. You are my favorite real estate attorney. So if we want to avoid probate, what are the options there?

What can our shareholder do?

Yes, I do love to avoid probate for my clients. So I might advise that during your lifetime, in order to avoid probate, a good way to do that is that you put your beneficiary on the stock and lease and make them a joint ownership and make it joint ownership with rights of survivorship, right? So this is the most common and effective tool to get out of probate.

“So this way, when one owner dies, the surviving joint tenant automatically becomes the full owner, bypassing probate entirely. And sometimes at a real estate closing or at the transfer of a co-op, you’ll see there’s on leases or on titles, we can name joint owners with rights of survivorship, or we can also name them as tenants in common. Now, tenants in common is if one owner passes, their share goes to their heirs.

This is a way you will not avoid probate because now a share has gone to an heir and now we’re in probate. So with joint ownership, with rights of survivorship, we get to bypass that.

That’s amazing. And how does this work in practice? Could you give us an example for it?

Yeah, yeah, absolutely. I know sometimes it’s kind of, it’s a little hard to explain. And sometimes I have to explain at closing when people want to decide, how do I want to take title here?

How do we want to own this, right? So let’s say a couple owns this; a husband and a wife, or a couple partner and a partner own it, and one of them passes away? Okay, now the surviving partner starts thinking about legacy, right?

Maybe they have an adult child, and the current shareholder during their time, what they can do is gift a small percentage of their shares, let’s say 10% to that beneficiary. So they become joint tenants with rights of survivorship now as well. So when the shareholder passes away, the beneficiary automatically inherits the remaining 90%, also avoiding probate.

Okay, so let’s say you have a couple, one partner passes away, the surviving partner starts thinking about legacy. Let’s say they have one adult daughter. So now there’s a mother who owns 100% of the shares, and she’s wanting to pass that down to her daughter, but without probate.

So during her lifetime, she may gift, say, 10% of the shares to her daughter, the beneficiary. So now they become joint tenants with rights of survivorship. So when the shareholder passes away, the mother, the beneficiary, which is the daughter, automatically inherits the remaining 90%, avoiding probate altogether.”

“Orsolya, let me ask you. Now in my example, I gave the mother giving the daughter 10%. Why only 10%?

How does this relate to capital gains, taxes, how is that calculated, how does that all come into play when we’re talking about this sort of transfer of shares?

Thanks, Dalia, and it’s a great example. And I’m not going to answer this question by myself because it’s a very complex one. And again, any tax related questions should be discussed with your CPA.

But just to give you an insight why we are talking about gifting 10% to future beneficiaries or even less than 10% to future beneficiaries. So let me start explaining and I will pull both of you into this conversation because because I need your brains to answer this question very clearly. So in our example, let’s say that the mother decides to put the daughter on the stock and lease in 2025 and gifts the daughter 10% ownership on the stock and lease.”
“The daughter and the mother, neither of them will have to pay anything in 2025 because we are talking here about a gift. However, when the mother passes, let’s say in 10 years, in 20 years or 100 years, then the co-op’s apartment value will be significantly higher than at the time the gift was made. So the tax authorities and the tax obligation will be looking at capital gains tax basis, which will be the time of gifting and at the time of selling off the apartment.”

“Obviously, if the daughter decides to move into the apartment, into the co-op apartment and live out her life there, there won’t be any capital gains taxes because she will be at the time of the mother’s passing 100 percent owner of the apartment. But in case the daughter says, I don’t need my mother’s apartment and I would like to put it up on the market as soon as possible, then capital gains taxes will be the difference between she received the apartment as a gift, the 10 percent and the time she is selling. But the basis for the capital gains taxes will be only the 10 percent value that she received.

Because for the remaining 90 percent, there will be a so-called step up basis. Look at that. Bracha, help me.

Step up basis. What does that mean?”

“So a step up in basis means if you inherit the apartment. So let’s talk about that 90 percent that the daughter will be inheriting. Instead of the tax authorities looking back at 2025, when they’re comparing the value between the time of acquisition and the time of sale, they’re going to look at the date of death of the mother because that is when the transfer occurred.

So you said the mother dies in 2035. Let’s say the daughter sells the apartment in 2037. There really should not be, even in New York City, a tremendous amount of change in that small time, not enough to trigger capital gains tax, probably on that 90% at least.

Right. So basically what we want to do is, at the time the gifting is happening between the shareholder and the future beneficiary, you want to give the future beneficiary as little percentage as possible in order to avoid capital gains taxes in the future. What is critically important is that you want to avoid probate.”

“You do this whole process to avoid probate, and because of that, you just give a very small percentage to the future beneficiary. So that’s the key, and that’s the takeaway in terms of all this taxes, step-up basis and capital gains taxes.

These are things that it’s really good to know, because avoiding probate is going to save you money, save you time. Avoiding capital gains tax is also going to, you know, save you a lot of money, because that’s a really large percentage here in New York. So these are really small things that you can do with your attorney to avoid a lot of problems in the future.

So I think this topic is really important.”

“I’ll just note, Dalia, you see how we talked about this and how complex it is and how many factors you’re taking into consideration. This is, you know, cops, I understand, don’t have deeds, but similar, the stock and leases. It’s not as simple as, I’ll just put my child on the deed.

I’ll just put my child on the stock and leases. No, this is an entire analysis that should be done that looks at all the potential ramifications, including tax.

Yeah, absolutely.

Correct.

So now let’s turn into the practicalities. Dalia, how is this process? What does this whole process entail?

How do we put the beneficiary, the daughter on the stock and lease?

Okay. So this really all depends on the co-op, the management and the board. And so for every co-op, it’s going to be different.

If you’ve ever spoken to someone who lives in a co-op apartment building or two people, they have totally different experiences, right? You know, their board might be one way, their management might be another way. So it’s very dependent on that.”

“So when you buy or sell a co-op apartment in New York City, you don’t just hand over the keys, kind of like you would outside of the city, like in Long Island, where we just, you know, hand over keys, here’s the deed, here’s the keys. What really happens behind the scenes is a transfer application, right? Because we’re not selling real property, we’re selling shares.

So a transfer application is the, or we’re transferring shares. So transfer application is the formal submission that allows the co-op corporation to review and approve the transfer of ownership from one tenant to another, or in some cases, a rental or a refinance. So in a co-op, you aren’t buying real estate, you’re buying the shares in a co-op, in a corporation.

So the board has the legal right to approve or reject any new shareholders. And that approval process begins with this transfer application. And I know that Orsolya and I have another podcast somewhere in our history, where we go over that sort of transfer application process.”

“And it usually includes submitting financial statements, tax returns, reference letters, purchase contract, various disclosures. And all these things are reviewed by managing agents. And then by the board itself.

So you may also hear a second term called the sale application. Now these two often get used interchangeably, but there is a distinction. So the sales application refers specifically to the situation where somebody is selling their shares to a new purchaser, right?

So they’re moving out, they’ve got a real estate agent who’s found a brand new purchaser, and here we have a sale application. Okay? A transfer application is more broad.

It can also apply to sublets, gifting shares to a family member, like the example that I gave earlier, estate transfers or even refinancing your loan. Okay? So all these would be a transfer application.

You’re always going to have to go through the co-op, the board, the management to do these things. Anytime the board needs to approve a change involving the shares of the co-op or the proprietary lease. So while every single sale triggers a transfer application, it’s not the case in a transfer application.”
“And it usually includes submitting financial statements, tax returns, reference letters, purchase contract, various disclosures. And all these things are reviewed by managing agents. And then by the board itself.

So you may also hear a second term called the sale application. Now these two often get used interchangeably, but there is a distinction. So the sales application refers specifically to the situation where somebody is selling their shares to a new purchaser, right?

So they’re moving out, they’ve got a real estate agent who’s found a brand new purchaser, and here we have a sale application. Okay? A transfer application is more broad.

It can also apply to sublets, gifting shares to a family member, like the example that I gave earlier, estate transfers or even refinancing your loan. Okay? So all these would be a transfer application.

You’re always going to have to go through the co-op, the board, the management to do these things. Anytime the board needs to approve a change involving the shares of the co-op or the proprietary lease. So while every single sale triggers a transfer application, it’s not the case in a transfer application.”

“So the lender is securing the collateral, so the money that they gave against the stock and lease. So they sort of also have to approve that there is a new incoming person. But again, the good news is that the current shareholder will remain on the mortgage note.

So the lenders are usually favorable and approve the new incoming beneficiary, as we have been calling this new owner. So lenders are more favorable approving new owners. And it’s usually a smooth process.”
“The way it’s done, that you have to contact the current lender of the shareholder and request an application for a mortgage modification. A mortgage modification will require the new person who will be added to the stock and lease to provide a financial information, anything that’s required by the lender. Once that has been submitted and reviewed by the lender and the board approved the new shareholder to be added to the lease and stock, once you provide the board approval letter, then usually the mortgage modification is granted, and the stock and lease can be changed, and the new shareholder can be added as a joint tenant with rights of survivorship to the existing stock and lease.

So that’s the little curve ball that also needs to be done, in addition to be added to the stock and lease.”

“All right, sounds good, I mean, it’s definitely something that people want to consider. So Bracha, let me ask you, do you feel like this is a solution for everyone? I mean, you have a lot of experience seeing things that go into probate, and how to avoid that.

Have we covered it?

Can this go for everyone?

Well, my approach is always to look at specific family situations and tailor the planning. So this is really good for family, like the example you gave, where there is one child. That example had an adult daughter, right?

Because we don’t like leaving things outright to minors. We’re assuming that adult daughter isn’t receiving any government benefits that this outright inheritance would endanger. We’re assuming that adult daughter is going to have kind of common sense and the ability to hire a lawyer and a broker, and maybe not be a spendthrift and waste the proceeds from the sale.

Otherwise, we might want to look at a trust for somebody who is not fitting into this very specific box that I’m talking about.”

“Makes sense. Makes sense. And I guess if there’s other children to consider or situations where there could be like family disputes, then maybe there’s another way to go to, right?

Yeah. Well, when there’s more than one child, A, you have the potential for disputes, but B, you know, this is a nice planning technique, but it doesn’t do the same thing as a will usually does, which says, I have child A and child B, but if either of them pass before me, I want their share to go to their kids. This doesn’t do that.

If one of your children passes before you and you have two kids on the release, it’s just going to go to the surviving child, and that’s not the outcome most people want.

That’s a really good example, Bracha.

Thank you.

Orsolya, how long does this process usually take and what does it cost?

Okay.

Approximately. I know you’re not going to give us any real numbers, but what’s involved here? Okay.

The process might be daunting, but believe me, it’s done very often. So here is an answer to your question in terms of timeline. It depends how quickly your management, your call board, how quickly they are responding to any kind of requests.

Some call boards are faster, some others are slower. I would say the moment you submit an application for a transfer of ownership or modification on your stock and lease, once you submit that application, usually management takes two weeks to review, then another four to six weeks, still the board reviews it, conducts the interview with the incoming new shareholder. So about six, seven weeks, six to eight weeks, let’s put it at six to eight weeks.”

“At the same time, you can simultaneously run the process with the existing lender, which process should not prolong the six to eight weeks. But again, these are timelines given to you as an estimate, and it very much depends on the building board and management. In terms of costs, for example, many real estate attorneys will be working on a flat rate, because we understand the process, we know how to run the process.

But in addition to that, there will be very often, not always, application fees with your co-op board, the same as a sales application, which might be a couple of hundred dollars, again, as much as the board is charging. There might be some fees involved if there is a lender. Obviously, if there is no lender, then there are no fees.”

“Again, think about application, although it’s just a modification of the mortgage modification. Again, there might be some fees, which are going at the end, add up. But at the end of the day, you will save a significant amount of money because going through probate may cost just as much or even more than adding someone on the lease.

But you definitely save time.

Sounds good. Well, I hope that this episode was helpful to all our listeners. We thank you so much for listening and joining us.

And we also thank our special guest today, Bracha Etengoff. And like I said, her information will be on the website. And so always reach out, leave a comment if you have any questions.

And we thank you so much again. We’ll see you next time on the next episode of Rock the Closing.

Thank you for tuning in to Rock the Closing. This podcast is hosted by real estate attorneys who offer valuable insights. Please remember that the content is for educational purposes only and does not constitute legal advice.”

“Always consult a qualified professional before making any decisions. This podcast is copyrighted by Rock the Closing, and any reproduction, syndication, or rebroadcasting of the content requires written permission.”

The post Episode 24: How to Avoid Probate In Case of Co-Op Apartment Ownership appeared first on Law & Mediation Office of Bracha Etengoff.

Katherine: Interesting question. By definition:

Noun: A person who is employed to provide financial services or guidance to clients

By my definition, it is someone who focuses on Life Goal Planning, Investment Management, Financial Planning, Family Legacy Planning, and looking at the client’s overall financial picture to guide the client to fulfill their life goals.

Bracha: What motivated you to become a financial advisor?

Katherine: Money is a complicated subject. So, at a very early age, I was aware of the conflict and resolution money can fulfill. It’s our means of exchange, and therefore not going away. And from the time I was in elementary school, I lived in a home where the stock market ticker went across the screen. Our dinner conversations were about building wealth, investing in real estate and business opportunities.

I knew that money afforded access – and I also didn’t have a ton of modeling of women talking about money. Even in High School I can remember my focus on wanting to build wealth and a freedom lifestyle. After finishing a 5-year Marine Biology program in 4 years, I graduated college, and within a year stepped into the financial services industry. I wanted to break glass ceilings and show other women that they could build their own wealth.

For over 25 years in this industry, I’ve often been – and still am – one of the only women that sits around the tables talking about investing, and breaking financial limits along with the status quo. This creates a large part of my drive as a financial advisor.

Bracha: Are financial planners and wealth managers the same professionals as financial advisors?

Katherine: There are financial advisors that “sell” products. And there are also financial advisors that holistically look at your overall financial life, set up a financial plan, and then offer advice from that standpoint. I fall into the latter category.

Our financial lives are complex, from earning an income, to owning homes, to retirement planning. I would be remiss to say that there is a one-size-fits-all plan. It’s imperative that when I work with my clients, I have details about their financial life now, what they are planning on in the next 3-5 years, and the long-term plan. Everyone has different goals and financial achievements in their lives, and uncovering all of that is what allows me to guide my clients.

Bracha: What educational qualifications should executors look for in a financial advisor?

Katherine: That is a great question – you can google “financial advisor” and come up with all different credentials, or no additional credentials at all. I can speak to the reason I went ahead of my securities licenses and MBA to obtain the CERTIFIED FINANCIAL PLANNER® certification.

As someone who values education and continuing the pursuit of excellence, it was important to me to pursue what the CFP Board calls, “The Standard of Excellence. For 50 years, CERTIFIED FINANCIAL PLANNER® certification has been the standard of excellence for financial planners. CFP® professionals have met extensive training and experience requirements and commit to CFP Board’s ethical standards that require them to put their clients’ interests first.”

In addition, if I were looking for a firm to work with alongside a financial advisor, it would be important to me to look for a Registered Investor Advisor (RIA). An RIA is a financial professional firm that advise clients on securities investment and may manage their investment portfolios. RIAs have fiduciary obligations to their clients, which may mean they have a fundamental duty to always and only provide investment advice that is in the best interests of their clients.

Bracha: If a client passes away, when should the family contact you?

Katherine: First, when you become an executor, it can be overwhelming, and there are numerous people to reach out to. One of the first phone calls made by the family and executor should be to the financial advisor in charge of the deceased accounts. It’s important that the financial advisor knows of the passing of the client. There are processes that need to be followed upon the passing of a client. This is one of the main reasons that at Opal Wealth Advisor we have a document called “The Financial Life Organizer,” which we request to be kept with the client’s estate planning documents. That way, the executor knows who should be contacted at the time of their death.

The executor would work with the financial advisor and their office to distribute the funds according to the deceased client’s wishes. As a financial advisor, we adhere to the estate planning documents and wishes of the deceased. Initially, the executor needs to work directly with the financial advisor that has the accounts. Once the accounts are distributed, it is up to the beneficiaries to pick the financial advisor they would like to work with, moving forward.

Bracha: What documents and information will you need from the family?

Katherine: The documents that we would need are the death certificate, and depending on the type of accounts, we may need originals.

• Quick Tip: It’s important to order more than one original death certificate upon the person’s passing.

We would also need a copy of the Will, Trust(s), or additional legal documents with proof of the executor for the client’s estate.

On retirement accounts, we would work directly with the beneficiaries to collect the required information.

Bracha: Can you illustrate your work with the estate of a former client with a case study?

Katherine: I’ll give you two examples:

1. First, let’s take the example of working with a couple, and one spouse passes away.

And the spouse that passes is the one that is the predominant “financial” partner in the relationship. As a financial advisor and CFP®, it’s important that when working with clients we involve both spouses in the conversation. Not to say that one isn’t the key person in the relationship with the financial advisor, but one is just more involved in the day-to-day.

At Opal, we utilize different tools to assist the client’s overall financial well-being, including ensuring beneficiaries are up to date, that non-retirement accounts are titled correctly, and that assets are to be distributed as the client wishes.

In this example, one client becomes a widow and isn’t sure how to manage all the paperwork, financials, and steps moving forward. And this is a very emotional and stressful time for the widow. So we work with the widow through the process of ensuring the accounts are retitled, assets are moved according to the paperwork that has been put into place, and the beneficiaries are updated according to the living spouse’s wishes.

Most importantly, we guide the widow during this stressful time to ensure that moving forward they are comfortable with the process, with how we are working together now, and that they have the support they need through the process – and beyond.

2. A second example would be a client that had a business alongside their personal investments.

This client had one child, and no partners within the business. All their legal estate planning documents were set up, and the child was unaware of the assets their parent had accumulated. This client’s daughter was in her early 20’s and wasn’t quite sure how to navigate everything, and there was a third-party executor. We worked alongside the executor to distribute the assets according to the client’s wishes, while educating the daughter to move forward. It was important to guide and take the time to understand the beneficiary’s (the deceased client’s daughter) goals, her initial needs, and her future needs. There were many outstanding issues, such as:

• Who would be taking over the business?
• Would the business be sold?
• How to navigate not only the personal investments, but also the business as an asset?
• How to follow the instructions of the deceased, according to the legal parameters set up in her documents?

The moral of the story is that when working with clients, one of the first questions I ask when we are in the discovery meeting is whether they have updated estate planning documents. It’s great to accumulate assets throughout your lifetime, but if you ��Dz�’t have your directives in order, the state will decide for you.

Bracha: What additional challenges do people who choose to hire a financial advisor for the first time when they inherit assets face?

Katherine: I’d recommend that someone who has come into an inheritance do their due diligence, and speak to a few financial advisors to see who fits your goals and needs. Find out how they work with clients and the resources they have to help you create the financial plan and goals you may not even realize at the time you’re looking for. Ask specific questions, and have them review their financial planning and investment management process. ask about their credentials, who is their ideal client, learn about the firm they are working with, and what additional resources do they have for you to learn about investment management and financial planning.

Don’t be afraid to ask questions – and the financial advisor should be transparent about fees and their relationship with clients.

When you inherit assets, you initially start working with the advisor where the investment accounts are held, but that doesn’t mean you need to stay working with that financial advisor.

Bracha: How can you prepare family members in advance to make the transition smoother, when your clients’ relatives who inherited assets want to keep working with you?

Katherine: As part of my practice, I take pride in meeting the extended family of my clients. They join us for events and webinars to become educated, and they can reach out and ask questions for themselves about their financial future. Some of the biggest challenges that I see with clients who inherit assets arise because the family or decedent hasn’t let them know they will be inheriting, or what the amount will be.

The conversation starts with the advisor encouraging an open dialogue before the client passes. This creates a legacy conversation that is important for those inheriting. It avoids the challenges that those inheriting may face because they are already in an emotional state, and knowing the financial advisor can limit the stress and the transitional period.

Bracha: What resources would you recommend to people who want to increase their financial literacy?

Katherine: There is an abundance of knowledge, books, podcasts, and blogs, which can actually be overwhelming. The first place to start is learning the basics about investment management, the different types of investments, and financial planning. You really can get so in depth that you go down the rabbit hole, so stick to financial planning and investment basics to start. If you choose to hire a financial advisor, he or she can recommend more resources as you build that relationship with them over time, and obtain investment and planning knowledge.

Money is confronting, and most often a source of stress. Give yourself grace when beginning the process of learning about financial planning and investment management.

Katherine M. Dean is a CERTIFIED FINANCIAL PLANNER professional, Financial Advisor, and founder of OpalWomen at Opal Wealth Advisors. She is also an international speaker and financial advocate, with more than 20 years of experience in the wealth management industry.

Katherine works with couples, widows, executives and women business owners to achieve financial peace of mind. Through the Opal Way, we establish meaningful goals and actions, then we develop a winning financial formula and provide personalized attention to stay on track. To learn more, connect with Katherine on Linked , set up your complimentary consultation here / and checkout her complimentary webinar, Smart Money Moves For Women

**Please see important disclosure information at

The post The Financial Advisor’s Role in Inheritance appeared first on Law & Mediation Office of Bracha Etengoff.

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I joined Bill Gross on The Executorium Podcast to discuss Mediation for Executors. I hope you find it useful.

Bill: Welcome to the Executorium Podcast. I’m your host, Bill Gross, at Bill Gross Probate, where we interview services and vendors that can help executives be more effective as they handle the task of managing an estate – a trustee estate, probate estate, whatever it might be.

One of the common themes that people find when they get involved, particularly when there’s a lot of money involved or a lot of assets involved, is conflict. And you really have two ways.

One is you go to court, which is kind of like shooting nuclear weapons at each other until somebody dies and you destroy the land they’re on. The other option or alternative is mediation.

I’m really excited to have today a practicing attorney who also is a mediator, a practicing mediator, Bracha Etengoff. Thank you so much for joining us again, Bracha.

Bracha: Thank you for having me, Bill. And I am happy at any time to talk about mediation, so I’m real excited to be here.

Bill: So as I sit back as a real estate broker in the probate space and trust litigation space, I just see oftentimes it feels like a World War I battle, where there’s trenches and they’re just shooting each other and there’s all kinds of bodies and blood everywhere, when they go to court. And mediation is an opportunity to avoid it.

Talk about the alternative or the possibilities that mediation presents to an estate that’s in some sort of a conflict.

Bracha: Ideally, we can get there before people dig into the trenches. Once they’ve dug into those trenches, it gets harder, but we can still settle conflicts even after they’ve gone to court.

But let’s talk about the ideal situation where we see there’s this dispute brewing. And people are at the courthouse steps. But people don’t want to sue family members usually.

And they don’t want their privacy invaded by those court proceedings.

And it’s really hard to sit across from anyone at a Christmas dinner or a Hanukkah dinner while you are suing them.

Not to mention the expense – like you said, it just drains away the estate assets.

So mediation is a really great alternative. Mediation involves a neutral facilitator who comes in and tries to help the parties reach agreement. Unlike a judge or even an arbitrator, we don’t impose our decisions on the parties.

So they have a lot of agency to craft solutions that are really the best for them, and that they can say, “This is really what we decided on.”

Which then have a better chance of actually working, right? Because if you and I are fighting and we decide together with someone’s help, this is how we’re going to resolve it, often that will prevent further disputes.

If some other third party came in and said, “Here’s what you’re going to do” – maybe we’ll keep fighting, right?

Bill: You know, as a real estate broker, I often come in, in the middle of a conflict that hasn’t set the trenches yet. And I’ll call one party or the other – somebody’s in charge, they want to sell the house – or the other party, for whatever reason, I’m talking to them.

And the attorney – sometimes I find from the beginning, is already attacking me where I have no dog in the hunt. Just somebody called me who wants to sell a house – you know, I’m glad to help them.

Now I think I’m good at walking through that. But what I find is that oftentimes attorneys, once they’re hired by a client, feel like they’re already fighting for them – as opposed to maybe just listening and assessing what the best solution is. Maybe the best solution is not fighting.

It’s kind of like – do you want to hire a bodyguard who’s armed?

Or maybe you should hire somebody who in those circumstances can help you assess: if you need a bodyguard, hire one, if you don’t though – here’s a way out.

And you must make those same phone calls – those same attorneys that I talked to who are just  guns are blazing from phone call one. How do you get them to just stop for a second and say, “Let’s assess this before we assume that somebody’s right or wrong, or there’s only one solution.”

Bracha: You’ve probably found that in some of the cases it’s bluster, and attorneys feel like if they don’t come in with the guns blazing, the other party is going to think they’re weak. But when it comes down to it, they’re actually on the settlement train and they want to do what’s best for their clients.

There are unfortunately the other types.

Sometimes I see requests for an attorney, “Oh, I need a pit bull.” Whenever I see animals involved, I say “Let’s take a step back and be human beings. To each other and for our clients.”

And you’ve really hit on a point because we have a duty to be zealous advocates for our clients. But what does that mean? Do we zealously advocate into the dust for only our clients who get the best share of the pie?

Or maybe we have a client who says, “I want a fair solution for everyone. I want this wrapped up quickly. What can you do for me?” Then we’re supposed to be advocating for those interests.

And as somebody who’s a probate professional, you can raise this. I have encountered many attorneys who are not aware that mediation can be used in the estate space. So if you brought it up, I’d be curious to see what reactions you get.

Bill: In Los Angeles there is a free program where attorneys and retired judges volunteer time – a certain amount, obviously limited in what they’re going to do. And like everything else in life, I want to say you get what you pay for because you’re getting an attorney’s time and not paying much for it, but you also aren’t going to get much, right?

And the question I always ask is – is there a track record of success? Are you going to a mediator who historically has been able to bring people together, or are you going to a mediator who just grinds through the cases, and it’s just another step in the litigation process?

And so how do you share your success and your skills without bragging? I want to hire you to solve the problem. So how do you get across to prospective attorneys who come to you or executors that you have a track record, or you have the skills to help them get the job done that they want?

Bracha: I suppose that without too many identifying details, I can talk about a case that I have been able to settle previously, and let people kind of draw the comparisons and analogies to themselves, for themselves.

I think also when you speak to someone and they’re knowledgeable and effective – it could be bluster, but sometimes the truth of it does come across. As attorneys, we have become very good at sussing out, “Is this person just kind of selling this or, or do they really have something may be a track record of success?”

I can’t put names of cases I’ve settled on my website. Confidentiality (and the way I want to treat my clients anyway) preclude me from doing that. But I can certainly talk about cases with some identifying details changed, and people get the sense that she’s not just making up this very detailed story.

Bill: Right, I’m kind of the same way. I’ve had people ask me sometimes, “Can I get references of some clients you sold houses for?”

And I said, “To be honest I’d rather not bother them. If you don’t get that I’m good for you by now, that’s okay, I have other phone calls to make about the business.” I’m not disrespectful – I would like to help you – but what I don’t want to do is bother my past clients with phone calls about my business. Nobody signed up for that.

And again, I think it comes across, if you talk about their case and the problem and you do it effectively, they’re gonna be interested.

And so I think the first step is just to talk to the parties and get a sense. So let’s say that an executor’s interested in mediation. Of course they’re on one side – there’s another side.

Or they have an attorney and their sense is the attorneys are just battling and running up the fee, and they want to find out about the opportunity for mediation.

Do you do consults with executives or attorneys before you take on a case?

Bracha: I do. The first person who calls me, I’ll usually speak with for about half an hour because people need to be briefed. What is this mediation business?

It’s different than what my lawyer is doing for me – really getting the point across that I don’t represent any party as a mediator. So it’s very different than an attorney, actually.

And we have a challenge. We have a natural bias towards, “Let’s advocate for someone.” And we have to get out of that headspace as mediators.

So when somebody comes to me, I explain basically what mediation is and what the process looks like. People generally ask for some sense of what it might cost, and I talk to them about the factors.

And at that point, they really need to call whoever it is that needs to get on board with this idea on the other side, and find out if they’d consider mediation.

And occasionally somebody comes to me and they’ve done that step already. And I can just  straight off meet with both parties, and have a very productive and substantial first session.

More often I get a call like, “I heard about this” or “I saw it on your website – and what exactly does that even mean?”

And you’ve identified some of the challenges right there. I also practice prenup mediation, and like estate mediation a lot of people don’t know that that’s an option. What you’ve identified as being in the adversarial mindset and getting all the best for their clients – sometimes people walk into prenups with that same mindset.

But really, this is a time when people love each other. And sometimes the spouse with more means wants to make sure the other person is taken care of – not give them as little as possible to still get that person to marry them. So it’s actually a prime candidate for mediation.

And then we have what’s called review attorneys. Each party gets an attorney to review the ultimate prenup draft.

But besides that, I do spend a lot of time in the estate and elder mediation space. Estate mediation has its challenges all of its own – because siblings, right? Often we’ve got siblings inheriting, and siblings kind of do not have to resolve their problems.

So it’s true that some people stay married and don’t resolve anything, but often things are pushed to a head. Because maybe they’re raising kids together, or they’re just spending so much time with each other.

And siblings may have these deep-seated issues – and believe me, I see them come out in mediation. But you’re able to just maybe spend some holidays all at mom’s house, and then everyone goes home, and maybe you do it again next year.

Or you saw each other at the funeral, but now what?

I think that because it doesn’t have to be such a close relationship, that creates challenges all of its own, when you need to do something so personal and reach agreement on splitting up assets.

Bill: Yeah, I think generally speaking, people feel the need to maintain a relationship with parents. And I do myself – I have two siblings, one of each. I feel the need to continue the relationship with them at all costs, and work through whatever it is.

But many people don’t. It’s like – that’s just my brother. And we didn’t get along when we were kids.

Well, that’s a choice. That’s not my choice – I think that’s a mistake. And obviously in any mediation when you go into it with “this relationship is not of value to me,” you’re going to be a lot harder to work with than if you appreciate the relationship. Then then you have to make some sacrifice to keep the relationship, and there’s value there that you have to work towards, and so let’s talk.

What do you think is the biggest mistake that leads to conflict that you as a mediator help unwind? Like what is it that you bring?

Bracha: In a recent estate mediation, I had two siblings, a brother and a sister. And the sister brought up an issue in a session and said, “I feel safe bringing this up because Bracha is here.”

And I know everyone wants to know settlement stats – but to me, that’s actually as meaningful, that’s very high praise.

That’s quite as important to me as: Did the case actually get settled? Because in order to even get there, people have to be somewhat free to open up.

Bill: In my experience, when I’ll have somebody like yelling at me or very upset, I say “Do you mind if either we take this conversation to text or email, so we have a record? Or can I record this?

Because what I don’t want is a lack of accountability. I find that when people are arguing with each other, they can say whatever they want, because it kind of disappears in the ether. But when the third person’s in the room, they know now they’re accountable for what they say to some degree. You’re paying attention.

And I think sometimes, rather than record the conversation, bring a third party in. Bring some accountability to one’s positions, and one’s logic, and one’s decisions. And I think that’s why I think one of the biggest things a mediator does is to add some accountability to the process.

Bracha: Oh, a hundred percent! I started off my mediation career in foreclosure mediation during the housing crisis, way back in ‘08. Really half of the purpose was – let’s set a schedule.

So I was mediating for the New Jersey courts. And as I’m sure you know, being in this space, people were sending documents that banks requested, and banks didn’t get it and or banks didn’t process it in time. And by the time the bank processed it, they said, oh, no, no, no. We need your most recent paycheck. That paycheck is too old. But when you sent the paycheck again to the bank, it’s again too old.

So a large portion of it is, yes, by the next mediation session you will have explored, for example, creative mortgage alternatives. I give you someone that you can call who works with people.

Let’s say you don’t have a lot of income showing on the books. Let’s say you’ve got bad credit history. Well, there are still loans that you can get, not like loan sharks, but real loans. They will be at higher interest rates.

But at the end of the day, the person who I’m speaking with does have to make that call. So with mediation, there is an element of – I can hold you accountable. But again, because I’m not the judge, I can’t sanction you if you didn’t make that call.

But ultimately, if both parties aren’t fully participating in the process, then that tells us what we need to know – that one or both are not really willing to resolve this. And the other person may have no choice but to bring a partition action, because they would like some portion of their inheritance while they can still enjoy it.

Maybe they haven’t been able to buy a home of their own. A lot of people, when they inherit half of their parents’ home, for example, that’s when they can finally become homeowners themselves. So I sympathize with that completely. People can’t wait forever.

So both parties really have to be committed to finding a solution.

Bill: Yeah, I find often as a real estate agent, when people have inherited with multiple siblings, there’s the one sibling who’s holding up the sale. Sometimes the other sibling, the “good guy” or “good gal,” just doesn’t believe that the brother is willing to be dishonest and continue holding up the sale for no reason.

And I think getting it to a conclusion – say, he’s not willing to meet any reasonable standard of solution here – it gives them clarity, at least to now move forward with the difficult choices. But at least with the conviction of knowing you’ve done everything you can.

Bracha: I had a case exactly like that. And from the beginning, the other sibling said, “If I didn’t love you, if I didn’t care, I would have been in court a few years back. I would have brought a partition action. That’s what all the lawyers tell me to do. But this is my last shot with you.”

And that was actually the client who wouldn’t make the call. He wouldn’t call about the creative mortgage solutions that he needed. I called ahead to that professional. But ultimately, you have to make the call.

And ultimately his sister had to realize he is not on board. And she had to get to a place where she felt, “I did all I could I want to be a good sibling, but you can’t wait forever.”

So I love that you brought that up because everyone wants to settle, of course, and that’s our ideal solution as well. But sometimes that reality testing, and that feeling like “I’ve gotten to the end of the road, I’ve done everything I could,” is a success in itself.

Bill: And I also think for the “bad sibling” (meaning living there forever, not being responsible, not paying for anything, really stealing from their siblings without their choice)…the sibling didn’t say, “We’re gonna agree to pay you a thousand dollars a month of value living here free.” We didn’t have that discussion. We didn’t have that agreement. I just don’t think it’s healthy spiritually for that bad sibling.

They have a chance. If they sell their share, they can move to a cheaper area, find a roommate, live on the money – there’s a lot of options there. But the option of “I’m just going to steal from my siblings” is, I think, inherently bad. And I think getting the siblings who want to resolve things at least the clarity – even if you don’t resolve the matter with the brother, resolving it can be he doesn’t want to resolve it. He wants to live for free, he wants to live on your good graces forever.

And that’s not really a good option for you, and for your kids, and your family. That clarity at the end of the mediation, even if it fails to resolve the matter, is a resolution that helps people.

Bracha: Absolutely. I do guardianships as well when an elder needs protection. And I do elder mediation: Can we form a caregiving plan for this person with different people in the family contributing that’s going to be sufficient, so that we don’t need that removal of independence that guardianship implies?

And I had really excellent trainers for that, and they said, “There is a reason that guardianships exist. There is a reason we have courts.” And there is.

So not every case, unfortunately, can be resolved through mediation. We do tell people that. That said, I have been able to resolve quite a few, and I’m happy about that.

Bill: And you’re right that there are other options. You could find a roommate, you can downgrade.

Bracha: I don’t usually see the person who’s living in that house that they inherited only a share of wanting to do that. I hear, “I want to stay here,” and not a recognition of, “Okay, I’m single. I have only one income and this house is in a pricey area. And if I were starting to look for something tomorrow, I know I couldn’t afford that.”

Or this feeling of, “But I have to live in this expensive area of the city! What else could I do? And of course, I need three bedrooms.”

So people have gotten used to a certain standard. And what I see is that a lot of people have a lot of difficulty with that shift in mindset, and just facing that reality of, “I can’t have the life that I’ve been used to having anymore.”

Bill: Well, they were never launched a responsible adults. And so now either this changes them, or if they don’t change, they’re not responsible. They don’t have the ability to see life as, “I need to take care of myself.” They’re just used to mom and dad letting them stay for free and that’s never ending.

For those who are interested in following up on mediation alternatives, and/or estate questions in general, guardianships/conservatorships, the Law and Mediation Office of Bracha Etengoff phone number is (347) 640-0993.

And the website is . And if you go there, you’ll see a nice picture of her as well as a description of her legal services. And then also the top right corner is a click phone call, and you can get in touch with her as well.

And then Bracha, thank you so much for your time today.

Bracha: I really appreciate being on. I hope I didn’t overstay my welcome, because I could talk about this forever! But thank you so much for raising awareness.

Bill: It’s me. I enjoy this topic a lot. And I’m in this space a lot where there’s a conflict and I wish more people turned to mediation. So I think my goal here is to try to advocate, hey, explore this alternative.

If you’re an executor, if you’re an attorney, why don’t you see if you can’t bring another third party in that can help avoid litigation?

Because litigation is a no-win. As a realtor, my house doesn’t sell. But more than that, my customer doesn’t get the money. The person living in the house who’s living there for free, it’s not really good for them spiritually. I can say that on a personal level. It’s just not good.

And so if we can resolve these matters more often, great. And, Bracha, you’re a resource to do that.

So thank you so much for being on with us today. Alright, you have a great day there.

And for everybody else, this is the Executorium Podcast. We get together every week and interview vendors and providers of services from the program: is the website.

If you go there, you have a directory of services, government resources, articles, and learning. If you go to the Browse button and put in your county, you get a list of various vendors: probate attorneys, and people who dispose of items, people who help you, grief support, legacy management, all kinds.

And then here we have, under probate attorneys, Bracha, who also is under mediation, the only person listed under mediation in New York County.

It’s just a great resource – these other tabs as well: government resources for free forms and such, and then the articles and learning on the subject.

So again, I’m Bill Gross at Bill Gross Probate, your host on Executorium. We do have a new episode every week.

Thank you so much for joining us – as always, make today your best day ever. Thanks so much.

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A lot of people think, “A trust – why is that something that I would need? I am not an extremely wealthy person. There’s nothing fancy about me.”

But even if you have only $5,000, your five-year-old cannot manage $5,000 by herself. She can’t manage $5, or $5,000, or $500,000, or $5 million. It really doesn’t matter – she’s five.

So as soon as you have a minor child, for example, you do need a trust.

How we draft it, whether we put it in the will or you need a separate document – that’s something you can discuss with your attorney. But you shouldn’t leave anything outright to a child.

Instead, somebody needs to be in an arrangement where they’re managing the asset for that child – for that beneficiary. And that’s exactly what a trust is.

And in terms of life insurance, that’s a time where ordinary people find themselves in a situation where estate tax actually might apply to them.

I have found that when I ask clients about their assets, many times what gets forgotten is life insurance. And people will ask me, is that an asset? And I’ll say yes, indeed it is. And that may be the one that you’re not thinking of, but we have to especially plan for it.

So in one case, I had a lovely young couple. They owned an apartment. They had a second one in another country. They both had good jobs. The apartments were going to appreciate – this is New York, and the one in a foreign country was in a desirable location as well. They also had some bank accounts.

But it was still not enough money for me to say, “Right now, you need a complex estate plan, you need a trust.”

Then she got pregnant – mazel tov, really wonderful. Our whole planning changed, which is fine.

But then she bought four million dollars in life insurance. So once we have a number like that, then I’m looking at the value of the apartments, and I’m looking at their income and how I expected hers at least to increase over the years.

And then I said to myself, here’s the threshold at which an estate gets taxed in New York – at that point, close to six million.

Once you’ve got four million in life insurance, does it help you now in your life? No, but she and her husband had purchased that so if neither of them are there anymore, there would be money to raise the child. Of course, that is why everyone buys it.

And what I can do to help is put that life insurance in a special trust – in a way that takes it out of the value of the estate completely.

So now a trust owns that life insurance policy instead of my clients directly.

And the trustees – the people who are going to make decisions about those life insurance policies – those are people who are separate from my clients: a sister and a brother.

So this is actually another illustration of why working with an attorney closely is so important, and why choosing someone who’s going to follow up is very important.

Because I worked closely with the with the insurance agent to make sure that the policies were now retitled in the name of the trust – which they did not do right the first time.

I always say, you don’t want to be your doctor or your lawyer’s interesting case.

We don’t want to get to the other end of things and find that the life insurance policy wasn’t quite titled properly in the trust, and have the IRS say, “Well, we don’t really think you should get the tax benefits,” and have a little fight.

And that would be really interesting to me! But that is not what we’re here for. We are here to make things smooth for our clients. And I don’t want any of my “interesting cases” to be ones that I planned.

So that’s one example of a trust. It’s often this legal arrangement whereby the person who’s benefiting is not the same person as the person who’s managing the assets.

The life insurance trust here is an example of one of the purposes of a trust, and that’s tax savings. That saved the estate from being subject to estate tax.

There are other purposes, and different kinds of trusts offer different kinds of protection and benefits, but also different kinds of limitations.

A trust may offer asset protection – it may be able to shield your assets from creditors. But it may not.

Certainly a trust is the most complex document we’ve talked about here. Please don’t download and sign anything online.

The other most important value of a trust to many people is that it can streamline the distribution of assets.

In New York State, we have tremendous backlog downstate for probate.

So remember, that’s the process by which someone takes the will after someone passes and files it in court. You need to prepare a petition, and that comes along with waivers from different family members. And that does take some time for even the best lawyer to gather all the required documents, get you to sign and notarize, get it filed properly.

Unfortunately, now the situation in downstate New York is even once we do that, the court may not do anything for six months. In a case in the Bronx recently – for a year.

It just sat there. And during that time, nothing could be done about the house that needs to pass through the will. So the house can’t be sold. The property taxes need to be paid. If the market was good, we might be missing the market. New York real estate, we turn on a dime here – you want to be nimble, you want to be able to catch the market. So what’s the alternative?

The alternative is to put the house in a form of trust called a “revocable trust,” meaning it can be revoked, it can be changed.

But that trust is a separate entity. It is now holding the house in a way that lets it pass to the next generation, to whoever the beneficiaries are, totally separate from whatever process is going on in court.

So if you’ve appointed a trustee who will take care of that house after you pass, that trustee can step right into your shoes. That trustee can make nimble decisions about when is the right time to sell.

And that is just not something that we can offer clients through wills anymore. And there are so many attorneys like myself who don’t believe in overcomplicating things.

But I also don’t believe in not showing clients the full range of options. And I believe that plans do need to be as complex as is beneficial for the client.

So this is actually not a very complex estate plan or an expensive estate plan necessarily. It’s something that Dalia and Orsolya and myself would love to combine our expertise, to offer clients at a really affordable price point. It’s something that we’re all very passionate about.

Because of our joint expertise, how can we do this for you in a way that you’ll be able to access and your family will be able to benefit from for the next generation?

A couple other types of trusts here that we’ll just go over quickly:

This is unfortunately confusing because the alternative to a revocable living trust is an irrevocable trust, which means the opposite. It cannot be changed.

And this is the type of trust where you start seeing tax benefits. This is the type of trust that a life insurance trust that I talked about earlier fits into. And this is where you’re going to find your Medicaid trust.

People say, “I need a trust to qualify me for Medicaid.” That works because you’ve made an irrevocable transfer of your house into it. Usually you retain the right to live there during your lifetime, but that house has actually been transferred.

We consider all the different types of taxes, the implications that may have on the capital gains tax, the estate tax – these are very complex decisions. And when it’s irrevocable, as you might imagine, it’s even more important to make the right decision the first time, because you’ve now done something that cannot be changed.

You might have heard of a special needs trust, and that’s something that we have to do often for persons with disabilities so that they can continue to qualify for government benefits while we provide separate funds – private funds from the family for basically everything that the government benefits will not provide.

So we don’t interfere. We say, these funds can only be used for things that the government benefits won’t pay for. And then the government looks at it and says, okay, you’re not giving us any resources for what we would pay for. And therefore, we’ll keep paying. That’s the general idea.

I wish it didn’t have to be so complicated, honestly. I wish that the benefits could just be given to the people in need, and we did not have to play this game, but you do. So for persons with disabilities, it’s important that we have this mechanism.

I think I’ve covered the ones that apply to most people. Most people don’t really have the sorts of estates where they’re setting up their own charitable trust. There are pet trusts – as a proud pet parent of a cat, I could talk about that one forever. That is a separate webinar!

So we’ve reached the end here, and I do want to invite people to submit questions, comments – anything that we could use the remaining time for, in a way that would most benefit you.

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Even more importantly – who �ɴDz�’t you choose to host Thanksgiving?

This is no small decision.

Maybe a central location is best? But since you all had to fly or drive to Seattle last year, it’s really your turn to sit pretty in your Manhattan apartment.

Your apartment has only two bedrooms though, and one’s your work from home office with just a pull-out couch. Your neighbors tactfully decline to host your brother from Michigan and his two sets of twins under 5, let alone the rest of your family. And hotel prices will be astronomical.

So your sister in Long Island offers to host instead. Still convenient by LIRR for you, and it’ll be easy to pick up family from JFK Airport.

But your sister – God bless her – can’t cook to save her life. She thinks she can, which only makes it worse. Her turkey’s always tasteless and dry. Even her sweet potatoes are dry – and how is that even possible? No one will agree to pretend to eat her Thanksgiving dinner ever again.

You consider the remaining candidates. Your brother’s in a starter house which is bursting at the seams already – and he hasn’t fixed the leaky roof yet. So that’s a no.

Your mom’s still in the family home in Holyoke, Massachusetts, even though it’s just her now. She’s just beginning to consider the senior community you toured with her. But for now, she’s got four bedrooms, a finished basement with an extra fridge, and a wrap-around porch where you all can sit out while the kids run around the lawn.

There’s lots to do for everyone in the area too. Theater, a great children’s museum, and some easy hiking… It was a great place to grow up, and you’re pretty sure you could all enjoy a weekend there again.

Your logistical analysis, however, is not complete. You finally persuaded your mom to hire great cleaning help last year, so she �ɴDz�’t have to get the house ready. But you can’t burden her to cook a holiday weekend’s meals for the whole family.

Whenever you suggest slowing down, though, your mom snaps “Stop treating me like a child!” And no one in this lifetime or the next will ever convince Mom to get takeout.

In contrast, most of the restaurants within a 20-block radius of your apartment know you by name. But when Dad passed, it really hit home that your time with his generation is limited and precious. And you have some use-it-or-lose-it vacation days left.

So you volunteer to come on Sunday to be Mom’s sous chef. You tell her you’ll cook some food with her that freezes well, ahead of the rest of the family’s arrival. You ��Dz�’t tell her you’ll also hide some takeout in the basement fridge.

But you’re not done yet. You also research the best restaurants within an hour radius (your specialty!), and share the menus with your siblings. Because of your sister’s recent promotion, you ask her to pick up the tab for everyone for a few meals. And you’re pleased to discover she’s actually really happy to find a way to contribute.

Labor Day has come and gone now (how did that happen?). But there’s still plenty of time for everyone to book plane tickets, arrange time off, and otherwise coordinate their return to your ancestral home.

You send up a silent prayer that your siblings will follow through promptly, so you can get back to your life – unlike last year…and the year before….Somehow, you always get stuck with the Thanksgiving logistics and inevitable trouble shooting.

By now, you’ve accepted your fate – but this year, someone better say they’re thankful to you!

Now, what can we learn from this story about designating an executor?

TOP 6 FACTORS FOR CHOOSING AN EXECUTOR:

1. The List Maker

• The same way you choose a Thanksgiving host who can cook, you choose an executor who is practical and organized. For example:
  • Who makes lists – and actually checks off items, and follows up when people ��Dz�’t call back?
  • Who can not only open a bank account, but also keep track of expenditures and reimbursements?

2. Location Matters

• Every state has different rules about who can serve as executor. One common criterion is location. Keep in mind that even if your state allows an out of state or international executor, it may not be ideal because:
  • A court interview may be required.
  • Attendance at a closing may be required.
  • Financial institutions may require documents to be notarized in the U.S.

3. Who Gets Along?

• Siblings who rarely speak may have seen each other for the first time in years at a parent’s funeral. And money can bring out the worst in people.
• Ask yourself who is most likely to get along with everyone else, and keep the peace.
• Consider a neutral executor, like an attorney or accountant, if family dynamics are very contentious.

4. Technological Proficiency

• Your lawyer and their staff will likely have a great deal of back and forth with your executor before the job is done, and email is usually the most efficient means of communications. Important documents may need to be scanned.
• No need for a Steve Jobs – but choose someone who will check their email frequently and is computer proficient.

5. Who’s Got the Time?

• Maybe you’re thinking, “Great, I’ll name my daughter. She’s a lawyer, that’ll help.” But if your daughter’s already working 60 hours/week, maybe she can’t quickly review documents, call banks, and respond to the estate attorney and accountant.
• Estate administration is usually a marathon, not a sprint.
• And being an executor is a part time job. Ask yourself – who has time for it?

6. Your Mission – If You Choose to Accept It

• Finally, you ��Dz�’t just show up on the doorstep for Thanksgiving and yell, “Surprise!”
• Remember to ask your candidates for executor – and all other personal representatives in your estate plan – if they’re willing to take on the job.

Beyond wishing you good luck, I hope you’ll put yourself in good hands. A careful estate planning attorney should work with you to help you think through these factors to choose the best executor for your and your family’s needs.

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Cocktail napkins, scraps of paper, and yellow legal pads – that’s how Executorium began.

But the first spark was lit when estate executor George Compton searched for resources to understand the job – and found nothing. Meanwhile, those scraps of paper and “e-mails to self” accumulated.

“An executor ought to know…Wish I’d known that…Where was this when I was executor?”

Communicating, educating, and disseminating information were already my professional skills, since I was then the Executive Director of an association of construction professionals. My personal experience as an executor and professional background converged, and Executorium began to take form.

I knew it had to be executor-facing, and it had to be simple. Most of all, it had to provide a view of the landscape, so executors could get their heads around the job at hand.

“I felt like the new guy.  It was a lot of responsibility. Lots of unfamiliar, disparate tasks in a new environment. It was an emotional time, and it can take hundreds of hours.”

“Executors walk away from the graveside with a briefcase and a life to unravel. Poof! You’re the executor. Good luck!”

Hence, Executorium.com!

Executorium’s Mission

The mission of Executorium is to be a Resource for Executors and Estates. How?

• Stand in an executor’s shoes
• Assume no prior estate knowledge
• Provide visibility of resources: local, state, and national – both private and government
• Flatten the learning curve
• Provide context and experience.

seeks to clarify many of the real-time experiences an executor may face. It shines a light on the work within an estate, the responsibilities of an executor, and the challenges of estate administration and settlement.

An Open Resource for Executors and Estates

We’re a resource for Executors and Administrators, as well as “Personal Representatives.”

Executorium.com is open access.  No login, no paywall, no registration!

Our website includes:

• Articles addressing common estate issues and learning opportunities.
• References to vital estate information.
• Directories of local estate service providers and government pages (federal, state, and county), laying out essential government probate and estate resources.

We strive to make the executor’s duties more familiar, because awareness and information visibility is key to a successful estate administration.

Poof! You’re an Executor…

Now what?  Well, every estate is different.  Every family is different.  And every state is different.

“Give me six hours to chop down a tree and I will spend the first four sharpening the axe.”

• Abraham Lincoln

But we know executors are busy enough jumping from task to task to spend much time learning the job. So, we relay fundamentals, practical information, and context quickly and efficiently.  It is designed so a browse through the site provides exposure to estate administration’s many new experiences.

Executorium.com is organized into four sections:

• – Articles across the scope of estate administration, from guest authors and the publishers of Executorium.
• – Resources and references across the estate administration environment.
• – Professionals that service the needs of executors and estates, organized by profession, state, and county.
• – Selected federal, state, and local resources to guide and assist executors.

Executorium even features advertisers with purpose: those whose products and services attend to the needs of an estate. Our ads put resources on executors’ radars – and pay the bills. Two birds; one stone!

Finally, our social media channels curate and share executor-facing content.

Facebook:

LinkedIn:

YouTube:

Instagram:

X:

Provide a View of the Landscape

One of my hardest executor’s lessons was that after it was over, I realized, “Huh. If I ever had to do that again, I’d be a lot better at it.” I had made mistakes. I had missed stuff. Now I had all this experience, but that was it – never again. But I wasn’t the new guy anymore.

Because of this realization, we endeavor to help executors see what’s out there. It does not matter if it’s on Executorium or elsewhere – as long as the executor has it on their radar.

For example, there are some very good ‘Guidelines for Executors’ out there. Don’t miss them.

Read them. Sharpen that axe!

• ���dz�’s
• The American Bar Association – 
• EstateExec:

These guides are symbolic of Executorium’s mission: showing executors where the help is – wherever it is, on-site or off – and sharing it openly to help estates move forward!

Executors Execute

An executor’s tasks involve the estate, probate, family, and legacy. Executorium endeavors to educate across many estate-related topics, and offer routes to solutions. We’re especially focused on shining light on those resources which may be unknown to executors, and which solve practical estate challenges or make the job easier. Some examples are:

• “What do I do with all these photos?”

: The Photo Managers

• “We have a lot of used medical equipment.  Can I donate?”

• “My dad owned many guns. I ��Dz�’t know a thing about guns.”

• “The thought of cleaning out everything is blowing my mind!”

• “What should I do with all the old books?”

• “I’m struggling with my grief.  This is harder than I thought.”

Please note the Learning Section, Articles, and Directories are constantly updated and revised. New content is added frequently.  Executorium is a constantly growing resource.

Conclusion

Executor of the Estate, Administrator, Personal Representative…while these terms sound fancy, they usually mean an individual that just lost a parent or other loved one – and the one who will clean out their dresser. They’ll spend hours and hours going through drawers, boxes, and memories. They’ll be working through paperwork, forms and records. And that’s just some parts of the job. There’s nothing fancy about estate administration and probate!

Executorium.com is a hub. At its center is the executor, endeavoring to navigate estate administration and probate. We just figured that job does not need to be harder – it needs to be easier. If Executorium can arrange resources and information around the hub that helps the executor move the estate forward, with less pain and frustration – we have accomplished our mission.

George Compton is the Publisher of Executorium.com.  He is on a mission to improve communication and visibility in the estate administration environment for executors and personal representatives.

The post It Took an Executor to Build Executorium.com appeared first on Law & Mediation Office of Bracha Etengoff.

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Transcript of our discussion:

Dalia: Hello, and welcome to another episode of Rock the Closing. Today is a very special episode. We are super excited to welcome another guest today – Bracha Etengoff. She is a trusts and estates attorney in New York City and Long Island. She does mediation of estate disputes too. And she’s going to be talking to us a little bit about how real estate and trusts and estate come together, how they can relate, how they can intersect, what some issues might be, problems, benefits, all the things.

So we’re very excited to have her. We will be posting her information on the website. Look out for that. And her website is һ��ݹ���

Orsolya: I am very excited, Bracha! Welcome to our show, and I think that you will have so much important information for our listeners. So what happens to the real estate when someone passes away?

Bracha: Thank you so much for having me, it’s a pleasure to be here. And I’d be happy to try to shed some light on this mysterious process. We can help people understand what happens, and the control that they have to make sure what they want to happen, happens – instead of just some default.
So what happens to real estate when someone passes, along with all their other possessions, is dependent on what plans they made during their life for their distribution.

Dalia: So that would be if somebody had thought ahead and planned ahead. But I feel like a lot of people are in this situation when they don’t have a plan, or they haven’t gotten around to putting it down on paper. Well, what happens then?

Bracha: In that case, the law has a default plan, and it might match your wishes – or it might not. But the law says, there has to be some rule about what happens if you didn’t tell us what you wanted. And here’s the way it often works. Say someone is married, with a wife and two children.

What the law will presume is that in most relationships, you would want your possessions to be divided between your spouse and your children. We also presume that you’d want your children’s share to be divided equally among them. So the law says all right, the first $50,000 in your estate goes to your wife.

After that, everything is divided half to your wife, half to your children. Now, the half that your children inherit, each one gets an equal share. So what ends up happening is: half to the wife, a quarter to your first child, and a quarter to your second child. That adds up to the whole of your estate.

Orsolya: But as I think all of us know, life is never so straightforward and people may want to make a decision that is not what the law prescribes. So could someone decide differently about the estate by writing a will? What could you achieve with the will, when it comes to real estate?

Bracha: The one thing to keep in mind – and this is something you would have to discuss with your estate planning attorney – is in New York and actually in all states in the nation, spouses do have inheritance rights. Your estate plan needs to either account for that, or you can have your spouse waive their rights. But I’m not going to tell you that you could do absolutely anything you want.

So leaving that aside, say you want to actually give everything to your spouse, because your children are 7 and 10 years old, and they won’t be able to manage their own money if they inherit it. At 7 and 10 years old, the court is going to say: We need to appoint someone to manage that money for them, and you can only access it with our oversight. And they’ll get it straight out when they turn 18.

There is really no 18-year-old who should be inheriting $1,000,000 – or even $100,000 – with no strings attached. You’re just not old enough to be able to make wise financial decisions on your own.

So often people say: “My spouse is also the mother of my two children. I’m confident that they will take care of my children, so I’d rather have everything go to my spouse.”

On the other hand, some people stay married for various reasons. Even if they’re not living together, even if the relationship has concluded, sometimes people stay married for another 10, 15, 20 years. For example, maybe you need your spouse’s health insurance, or maybe you don’t believe in divorce.

There could be any number of reasons you don’t want what is dictated to you in the statute to be the inheritance structure.

Dalia: Wow, that’s really interesting that you say that, because in my past life as a divorce attorney, I have met a lot of clients who stayed legally married to their spouse for many, many years after the relationship had basically ended. And I know for a fact they would have been really upset if they had passed, and their property and assets had passed to that spouse.

So it’s great to have a plan for each season of your life, because things change.

You definitely don’t want to work your whole life, then have what you worked so hard for not be distributed in the way you want.

I also get a lot of questions about putting property in a trust. I think a lot of times people don’t really understand what that is or how it works. So can you shed any light on what the benefit would be of including property in a trust?

Bracha: One incredible benefit of keeping property in a trust instead of passing it simply through your will is that the trustee – the person who you name to be in charge of the property in your trust – you can name someone to do that after you pass. So typically, people will often retain the power for themselves to act as trustee and manage all their property during their own lifetimes. But once they pass the “successor trustee” can take over.

So let’s compare a couple of situations. Say you put your house in a trust and upon your passing the trustee can say: “The market’s really good right now. I would like to be able to sell this house sooner rather than later so that my family can get the full benefit of their inheritance.” Or, “I don’t want to hold onto this property because none of us really want to live there.” For example, if one of the trustees is a child, and you’ve got a number of children who live in different parts of the country. And nobody wants to live in this family home they grew up in.

The longer you have to hold on to that house, the more your inheritance is frittered away.
Because for every day, every month, every year that you can’t sell that house, you are liable to keep paying for its utilities. And for the property taxes.

And the amount of money that you may be able to sell your house for now versus next year could be hundreds of thousands of dollars different, depending on what happens in the market.

Is it a seller’s market? Maybe now it is, but next year you’re going to get $200,000 less for this house because it hasn’t been able to be sold.
But if the house is in a trust instead, you can sell that house pretty much immediately.

Dalia: Wow. That’s really good information, because I feel like a lot of people just have this obscure idea of how a trust works or what’s involved, and they don’t have the real clear picture. So thank you for that.

Bracha: You have a trust that is separate from a will, it’s a separate way of owning property. Then you don’t have to wait for the courts to appoint someone under the will with authority to sell the house.

That house is happy living its own little separate life in that trust – far away from the courts, far away from waiting for the court to approve your will.

Dalia: It’s great to have to be able to have that control, to be able to manage your own property like that. So there is more than one kind of trust. Can you shed some light on that too?

Bracha: So usually we divide trusts into revocable and irrevocable trusts.

With a revocable trust, you can retain as much control as if you owned the property in your own name.

So typically, if you have a married couple, they will own that house together in the trust, the same way they would have both been on the deed in their personal names, and they may both be acting as trustees during their lifetime. They can do whatever they want with their house in that trust, the same way that they could do whatever they wanted if that house was in their personal names.
That’s usually what we use revocable trusts for – complete flexibility.

But an irrevocable trust means you have transferred ownership to someone else in an irrevocable manner, meaning it cannot be taken back.

You’ve made a permanent transfer, so it no longer mainly belongs to you, but you might be able to retain something like a life estate. Perhaps you would like to explain that to your listeners.

Dalia: Absolutely.

If you’re retaining a life estate in your property that’s in an irrevocable trust, then you are basically promised to be able to live there for the rest of your life.

Kind of like a lease that doesn’t run out until you pass away. So that’s a good way to make sure that you have the protections of a trust, but also the security that you won’t be booted from your house that you’ve put in this trust if the trustee is someone else. And so you at least have that ability to stay there.

Bracha: And often these are used for Medicaid planning purposes. Because even if Medicaid is going to let you keep your residence, after the person on Medicaid passes, the state may try to recover the money that they have expended for their care. And the state could put a lien against the house.

If this property is instead transferred to a Medicaid Trust, the house actually didn’t belong to that person on Medicaid anymore during their lifetime. It belonged to the children, and the person on Medicaid simply retained a life estate – a right to live there during their lifetime.

And this is not a simple concept, and it also is not something that should be done without a full consultation with a qualified attorney so that you can look out for the different tax consequences and really make the best decision for you.

Dalia: I know a lot of people have that concern when they own a house. As they get older, what’s going to happen to that house when they need medical attention or if they’re going into a home?

Orsolya: I’m just listening here and learning so much from you. There are so many considerations. And you mentioned something before which comes up very often in real estate transaction. And I’m talking about capital gains tax. Very often a young couple purchases a home, and they spend decades in that home. And then, as we know, in New York the market is really growing. Or perhaps you invested in a home 40 years ago, and then the price went so far up with the market changing that you might be exposed to capital gains tax.

Capital gains are the difference between the selling and the purchase price. When there is a huge surge in the market price for certain property, or when a family has owned the property for an extended amount of time, then we have to look into capital gains tax.

Then we do have to report that, and if capital gains taxes are due, the seller will have to pay a certain amount to the tax authorities. Would capital gains tax also be something that will apply if the buyers are putting the property in a trust?

Bracha: I’m going to continue to focus on what happens if your children receive that house after your passing. Depending on the plan that you’ve made, what could be the implications on capital gains taxes?

When someone inherits real property, they receive a benefit called the step up in basis when calculating capital gains taxes.

Say you’ve got a townhouse that was purchased in 1970 for $100,000 and today it’s worth three and a half million. Now, if you inherit this, then you receive the step up in basis. Instead of paying the difference between $100,000 and three and a half million dollars, instead of that being the basis of the calculation for whether you gained or lost money from this sale, the difference is calculated from the date of the person who passed.

So say the person passed when the house was worth 3.4 million. By the time you got around to selling it, it’s worth 3.6 million. Then the capital gains tax is calculated only on that $200,000 difference.
And that’s true if the property passed without a will, or through a will, or through a revocable trust.

Because remember, a revocable trust will allow you to retain total control during your lifetime. So it’s as if it was still owned by the person who passed in their own name. It is treated the same for the purposes of capital gains tax as well.

However, if that property had been transferred into an irrevocable trust such as a Medicaid trust, it is looked at as a gift made during their lifetime – not as an inheritance. And when you calculate capital gains tax, you are going to be responsible for the differential between $100,000 and $3.6 million.

I receive calls like, “Can you just put my son on the deed? I don’t want the house to go through probate.”
And that would have the same problem for capital gains taxes.
Because when people call me like that, I ask them: “What did you buy it for?
And they say things like: “$100,000 back in 1980.”
And I ask: “What is it worth now?”
And they say: “Oh, about a million.”

If their son would inherit that home, they would have the benefit of the step up in basis. And only pay the difference between $1,000,000 and what it sells for.

But if you put someone on the deed, then you are – without really thinking about it – creating a situation where half the transfer is done during their lifetime.

The main point is – ��Dz�’t make a decision like this just because a friend put their kid on the deed, or you heard that probate is something to avoid, or that a Medicaid trust is a good idea.

The way to make decisions like this is to consult someone who can guide you through the process and help you figure out, based on your circumstances, what’s best for you.

Maybe if you just bought the house yesterday, you don’t care as much, right? You bought the house yesterday. It was worth $700,000. And you expect that maybe when you pass, it’ll be worth $800,000. That’s a different calculation than our house in 1970 that was purchased for $100,000.

Dalia: Yeah, I get a lot of calls for people wanting to add someone to a deed or just change things up. They definitely think it’s like a one and done, quick thing that just needs to be filed with the clerk’s office. But there’s all these consequences, like Bracha just told us.
So what advice would you give for a first time buyer who asks:
“What should I do? Should I put this in my and my spouse’s name? Should we buy this in a trust? Should we buy it first and put it in a trust? Do we need a trust?”

Bracha: If you consult a trusts & estates attorney from the outset, you will be in a much better place – rather than you just want to get to the closing, you just want to buy the house, you’ll worry about it later. But it’s hard for later to actually happen.

Once you’re busy with your closing, packing, and moving – to later find another lawyer, and set up a trust, and transfer the house into a trust – that really may not get done at all.

And the other problem is, you’re going to have to pay title company fees and legal fees again.

Title company fees could be about $600. And you’re going to probably end up paying a thousand at least in legal fees, possibly a couple of thousand, because somebody has to trace back and look at:

• What kind of ownership is this?
• Did you buy it with your spouse or with someone else?
• What happened here and what kind of trust do I need to create?
• Do you want to carry through that form of ownership or change that form of ownership?

If you’ve identified a property that you want to buy, you can have your trusts and estates attorney work closely with your real estate attorney – you are much better off setting up a trust right then.

Your trusts and estates attorney can counsel you on which kind of trust is right for you.

And then you make sure that the property is actually put into the trust. Because it is not unusual for people to set up fancy trusts – but never actually put the property in them.

And unfortunately, that can even happen when lawyers do it, because it’s the kind of detail that sometimes gets forgotten. Unfortunately, we do see cases often when trusts have been set up for clients, and when someone passes, they come to our office and we check the deed. And the deed says that the house is still in the person’s personal name – it never made it into the trust.

So if you can have your players communicate with each other – your trusts and estates attorney and your real estate attorney – you’re usually going to get a better result.

You’re going to make sure it gets done, and you’re going to make sure it gets done right.

Orsolya: Bracha, thank you so much for this very interesting insight. I really enjoyed talking with you and receiving all this information that intersects with real estate. I would like to encourage all who listen to our podcast today that if you have any further questions, please feel free to reach out to Bracha. Her website is brachalaw.com
Both Dalia and myself are working with Bracha very closely. If you need a real estate attorney, rest assured that we can involve Bracha to give you more options, and vice versa.
So again, real estate attorneys and trusts and estates attorneys are often working together. And this is something that should be your final take away when you embark on a real estate transaction in your life.
Once again, thank you so much for chiming in for today’s Rock The Closing. I hope to see you in our next episode!

Dalia: Thank you for tuning in to Rock The Closing. This podcast is hosted by real estate attorneys who offer valuable insights. Please remember that the content is for educational purposes only and does not constitute legal advice. Always consult a qualified professional before making any decision. This podcast is copyrighted by Rock the Closing and any reproduction, syndication or rebroadcasting of the content requires written permission.

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The post Rock the Closing! Episode 17 Chat with a Trust & Estate Attorney: Highlights appeared first on Law & Mediation Office of Bracha Etengoff.

Sometimes when people are in the early stages of cognitive decline, no one realizes the impact it’s having —except scammers. Seniors who are already confused about financial matters are prime targets for fraudulent investment schemes. By the time they or their family realize what is happening, it’s often too late. People can lose most of their retirement funds and their financial security can be destroyed – along with their dreams of using their savings to make life easier for their children and grandchildren.

Financial exploitation often also occurs when a senior owns a two or three family house, lives in one apartment, and rents out the other(s). Tenants sometimes take advantage of a landlord’s dementia or hospital admission to stop paying rent. The landlord may not realize it, or even if s/he does, hiring a lawyer to bring an eviction proceeding may be overwhelming. On the other hand, people with dementia may not be able to fulfill their duties as landlords either. They’re likely to have trouble keeping up with the necessary home repairs, and paying the utilities and property taxes.

This illustrates another common problem: asset management. A multi-family home in New York is often a senior’s most valuable asset, but it requires maintenance. It should also be a major source of income. Certainly, if tenants stop paying rent, the home is no longer a source of income. But even if the tenants are paying, the rent may be stuck at the going rate a decade ago. A landlord with diminished financial capacity may not remember to renew the lease or raise the rent.

The other side of this coin is debt. Bills often pile up, followed by collection notices. Even if people have the assets and income to pay their bills, it doesn’t help if they no longer have the capacity to reliably do so and no one else is authorized to pay them instead.

The legal system may intervene through the appointment of a “guardian of the property” when people lose financial capacity and haven’t prepared adequately. A guardian of the property assumes the responsibility of managing the incapacitated person’s financial and legal affairs, making these decisions on their behalf. But guardianship proceedings are usually time-consuming and costly, and the person appointed may not align with the individual’s preferences.

Fortunately, we can maintain more control over our financial destinies even during times of diminished capacity through advance planning. Consider which of these proactive steps are right for you:

1. Add a Trusted Contact Person to Brokerage Accounts: If your broker suspects you’re being scammed or can’t reach you, they can contact this person.
2. Organize & Store Financial Documents Securely & Accessibly: Inform trusted loved ones of the location and/or provide them with copies.
3. Share Your Financial & Legal Professionals’ Contact Information: Include your financial adviser, estate planning attorney, and accountant.
4. Update Financial Account Information Regularly: Include new accounts and changes in trusted contacts.
5. Ask your Lawyer about a Durable Power of Attorney: Enable someone you trust to make financial and legal decisions if you cannot.
6. Utilize the Social Security Advance Designation: Name someone you trust to manage your benefits if you become unable to do so.
7. Review your Investment Portfolio: Ensure the risk level and allocations align with your age, financial and medical status, and potential increases in healthcare costs.

Keep in mind two caveats:

• You must have the necessary mental capacity for these steps.
• You should not be unduly influenced to take any of these steps. For example, sometimes unscrupulous people pressure relatives to sign powers of attorney.

For these reasons, if you reach out to a responsible estate planning lawyer on behalf of a family member, we’ll will want to speak with your relative alone. We do that to protect the privileged nature of attorney-client communications, but also to ensure the person really wants to do the planning. Similarly, even if your family has already discussed who should be the agent under power of attorney together, we will discuss this again confidentially with your relative.

To sum up, you owe it to yourself and your loved ones to face the elephant in the family room. Prepare for diminished financial capacity now – and protect yourself later.

The steps to plan for diminished financial capacity are based on recommendations from . For information on types of scams and elder abuse, see .

To report suspected scams and elder abuse in New York to the State Attorney General, call 1-800-771-7755 or file a report at . In emergencies, always call 911.

The post The Elephant in the Family Room: Diminished Financial Capacity appeared first on Law & Mediation Office of Bracha Etengoff.

Doing what? Well, first you should know Mollie was right. Estate representative appointments and estate administration often take years in New York. Many of the downstate which handle this are still moving a lot slower than before COVID19. And even if the heirs are in agreement on the distribution of belongings – i.e., “tangible personal property” – probate laws restrict when they can be distributed or discarded. And appraisers, estate sale organizers, and clean out services may be needed.

I’ve heard of someone still renting a storage unit 8 years after his parent’s passing. And someone who paid high maintenance for over a decade on an unoccupied but still-furnished Manhattan apartment. Because it’s emotional and time consuming, some people put this task off for years.

So I often advise clients to sort through their belongings during their lifetimes. But the method of dostadning (Swedish for death cleaning) was new to me. I asked Mollie if I could interview her, and she generously agreed.

Bracha: What prompted you to start the dostadning process?

Mollie: One morning, I couldn’t find something in my clothes closet. It dawned on me that I hadn’t worn some of the clothes hanging there for many years. It actually took me back twenty years to when I cleared out my parents’ home. All I wanted was time to grieve – but there I was, going through piles of possessions for weeks on end. As soon as those memories hit, I told myself, “Mollie, you are not going to do that to your children!”

Bracha: So, it started with a closet?

Mollie: Yep, I went after those clothes with a vengeance. If I hadn’t worn a piece in five years, into the box it went. If I knew something wouldn’t ever fit me again, out it came. And when everything was packed up for donation, I swear I felt lighter! Plus, knowing those clothes would be worn by people who really needed them made me happy. I was so thrilled, I headed to my storage area, but right away, I knew I needed help. I was in way over my head!

Bracha: Where did you go for help?

Mollie: I went straight to the computer to look up decluttering. After a lot of false leads, I came across a book by Margareta Magnusson that people were raving about. I have to admit, the title put me off at first. I’d just turned 70, and I was having a hard time confronting my mortality, so a book called wasn’t that appealing. But people seemed to really like it, so I took a deep breath and ordered it.

Bracha: Did you find it helpful?

Mollie: Absolutely! I found out that “stadning” in Swedish means cleaning, and “do” means death, and decided I’d just concentrate on the stadning part of the word. But the truth is, I started to feel better about my mortality, too, because I knew what I was doing would help my children.

Removing unnecessary things from my home wouldn’t just save them time when I passed- it would spare them emotional pain too. For me, dostadning was about continuing to help my children, even after I’m no longer here.

Bracha: I imagine some people could find what you did difficult.

Mollie: Well, going through possessions you’ve accumulated over decades can be daunting, but I took it step by step. Setting small goals helped. And once I started it became easier to continue, because it was actually a positive experience.

Bracha: What made it a positive experience?

Mollie: Suddenly, there was space all around me – and I knew where things were for a change! Plus, some things required a lot of maintenance, so letting go of some of those created more time in my life. And my “background” stress level really dropped.

But it wasn’t all about getting rid of the clutter. When I came across something that meant a lot to me, I knew I wanted to share it with my kids. So dostadning also gave me the opportunity to cherish my memories.

Bracha: Do you have any advice for people considering this method?

Mollie: First, I’d say to take it slow. Pace yourself. And ��Dz�’t start with emotionally difficult things, like photographs, which can be hard to go through. Definitely leave the sentimental stuff for later, once you’re in the groove.

And you will get into the groove! The process is very self-reinforcing. Once I started separating what really mattered to me from what was just taking up space, I naturally wanted to continue. And knowing that what you’re doing is a gift to your heirs is very empowering.

Bracha: Thank you for sharing your experience, Mollie. Despite the off-putting name, this process seems really life affirming. Now, my own overstuffed closet awaits!

*For more tips on the dostadning process, see .

*Some facts have been altered to protect the client’s privacy.

The post How to Declutter In the Present, As a Present appeared first on Law & Mediation Office of Bracha Etengoff.

“Did she sign a health care proxy?”, the doctors ask.

A health care agent could work with Sarah’s medical team to develop a safe discharge plan, and take responsibility for her transition. Aides could be hired again, a ramp and bathroom bars installed, a hospital bed purchased.

Except there are other problems at home, too. Sarah owns a three-family house, and she’s proud of paying off the mortgage. But one apartment’s been vacant for years, the sole tenant stopped paying, and the property taxes are overdue. Collection notices are scattered around the home, along with credit cards Sarah didn’t remember opening. She probably has a pension, social security, and bank accounts, but no one in the family knows for sure. Mark decides to hire a lawyer.

“Did she sign a power of attorney?”, the lawyer asks.

The agent under power of attorney could search for her assets. Find out where her retirement payments are deposited, and use them to pay delinquent bills and the expenses of returning home. This kind of agent could even hire a lawyer to evict the tenant.

But there’s no health care proxy or power of attorney. The lawyer explains that it’s too late for Sarah to sign these documents now, since she lacks the mental capacity required. Instead, a guardianship proceeding may be needed. However, a guardian is not automatically appointed because someone has dementia, or refuses to take their medication, or buys things they can’t afford.

Instead, the standard for appointing a guardian is two part: 1. The person is unable to provide for personal needs and/or property management, and 2. The person cannot adequately understand and appreciate the nature and consequences of such inability. See .

Mark decides to file a petition for guardianship of Sarah, aka the allegedly incapacitated person (AIP). He and his lawyer work for many hours to explain to the court:

• WHO the AIP is: birthplace, age, residence, profession, family members
• WHY she needs a guardian: personal care and property management limitations
• WHAT her financial position is: assets and debts
• HOW the Petitioner is suitable for the position: relationship to AIP, age, residence, profession, no bankruptcy filings or felony convictions

Next, the court issues an order. It sets a hearing date and appoints a lawyer to represent Sarah. The order also names a court evaluator, who interviews all the family members and issues a report. He recommends that a “guardian of the person” be appointed for Sarah’s personal needs, and a “guardian of the property” be appointed for her financial and legal matters. Because Mark lives far away, he recommends the court appoint a local professional guardian instead.

The hearing date arrives. Mark has to fly in and also arrange an ambulette to bring Sarah to court. Despite everyone’s best efforts to respect her dignity, Sarah is understandably upset by people describing her difficulties. Mark is subjected to cross examination. The court evaluator and other family members testify too.

The hearing lasts all day.

It ends with the judge reading her ruling, appointing a professional guardian and Mark as co-guardian. The system worked, but it was an emotional and exhausting ordeal. And the professional guardian, Sarah’s lawyer, Mark’s lawyer, the court evaluator, and the ambulette company all must be paid – out of Sarah’s funds.

Unfortunately, some version of this story plays out daily, in courts across the state. If we’re incapacitated but haven’t given anyone the legal authority to assist us, the court may choose for us. Sometimes the guardian is a family member – but not the one you’d have chosen. Other times it’s a professional who accepts court appointments: competent and compassionate if you’re lucky, but still a stranger. Best case scenario, the guardian is a responsible person you would’ve named as agent if you’d done that healthcare proxy and power of attorney. But their appointment as guardian is a far more expensive, lengthy, and intrusive process.

It’s frightening to think about becoming dependent. But taking control over what happens if we become dependent is integral to the independence we so cherish.

For information on support and resources for guardians and caregivers, see �����Ի���

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