Choosing an Executor

In this episode, Lisa Shoalmire and John Ross discuss several common issues to plan for/avoid-if-at-all-possible when choosing an executor.

Episode Transcript
John
Welcome to Aging Insight, everybody. We're a live call-in radio show, we have callers and it looks like we've got one caller right now.
Lisa
Right now, yeah.
John
So, caller, you're on Aging Insight. What can we do for you?
Caller-1
Hello?
John
Hello.
Caller-1
Is this Aging Insight?
John
Yes, sir. You've got it.
Caller-1
Yeah. This is, it's Stonewall again. I listen to ya'll every morning and Rush Limbaugh and all that. But anyway, I went to the doctor and I got some cough medicine for, I don't know what it is. He said inflammation or something on my chest. And I'm filling that stuff and I still got your problem. Aging Insight, what do you reckon I ought to do? 71 and still kicking.
John
Well, I'll tell you what. If you still got a cough like I do, I'm actually sitting here drinking a little tea with some honey in it.
Lisa
But no whiskey.
Caller-1
That's what my grandmother told me 40 years ago, tea, and honey, and peppermint.
John
Yep, that'll do it. Like I said, I think, my grandmother actually used to put a little bit of Kentucky's Finest in her tea and honey, but I'm not sure that that actually helps any.
Caller-1
Yeah. That whiskey helps it, it's supposed to, I guess. Yeah.
John
I don't know.
Lisa
Well, Stonewall, I sure hope you get over it. I'm glad you've been to the real doctor to help you out, and I think this may be just one of those things that we just gotta treat ourselves right and take a little time. I don't know.
Caller-1
Okay. Well, thank you.
John
All right. You have a good day.
Lisa
Yeah. And I heard him cough as he was getting off there. So, I'll tell you what, it's something out there. So, for all you folks, I hope that a lot of our listeners, that they got their flu shots, which the news report just said was only 60% effective.
John
Yeah. But I'll tell you what, if it's 60% that keeps you from getting it, hey, it was worth it.
Lisa
Yeah. And then, of course, a lot of our listeners, too, I know recommended to get that pneumonia shot. So, I don't know about the timing and all of that, but hope everybody's stayin' as safe and healthy out there as they can. We try not to... We're real cognizant of that at our office during this time of year and I know at our office we always make sure that our staff gets their flu shots and so that way, as we're visiting with families and seniors that... We certainly don't wanna be a transmission for any of that.
John
Yeah. No, that's exactly right. Well, the other thing about our practice that... Our practice, like many businesses, ours has a tendency to swing a little bit.
Lisa
Sure.
John
You'll see more of certain things during certain times of the years. Typically, not always. But unfortunately the cold weather, the Christmas season, the stress of the holidays, things like that, that has a tendency to unfortunately bring loss to many families, something about the cold weather and the flus and the things like that. And so oftentimes, especially right here around the first of the year, we end up handling a lot of probate.
Lisa
Yeah, we do handle a lot of probates and it's a really rough time for families that they're dealing with grief, first and foremost, but yet the world keeps turning and so business has to keep going, and the mail keeps coming for their lost loved one, and...
John
Yeah. You gotta handle stuff. The electric company still wants to get paid on the first for that house even if the person who was residing there is not with us anymore.
Lisa
Yeah. And most people, handling an estate or handling a probate matter being part of that, that's not something they do very often. And maybe they did it a long time ago and here they are again and they just don't... It's overwhelming because a lot of people just don't know where to start, what to do, and so that's where we see a lot of families in our office about this.
John
Yeah. And so I've had this conversation here quite a bit here in the last little bit, and the other thing that we end up having as we... So talking about the wave is we'll spend some of this time, especially around the Christmas holidays, having the discussion of, what do you need to do following the death of a loved one? Oftentimes, that involves some legal work to get things handled, but then often, you start getting the calls back from various people that you've met with because the person who was handling stuff isn't doing it right.
Lisa
Right, so a lot of times...
John
Or at least not in their opinion.
Lisa
Right. So a lot of times we'll get some calls and all from people who say, "Hey, my sister who's the executor, she's just not doing anything," or "My dad has me as the executor but his wife is jumping all over me about... That I'm not doing things right and I'm following... I came to you guys, give me advice and guidance, I'm getting all this blowback."
John
Well, and you and I even in our own practice with our own clients oftentimes are... We've gotten the process started, but then our own client has disappeared.
Lisa
Right, that has happened, and that's never a good day at the office when you realize that your letters and your phone calls are going unanswered.
John
That's right, and yet there's still a pending probate case going on and stuff. So yeah, there's problems. And so we kind of thought, well, maybe we ought to discuss some of this for y'all out there and we can talk about, how do you make sure you've got the right person who's gonna be in charge of things, potentially after you're gone, if you're talking about a will that would be an executor, if you're talking about a trust, that would be a successor trustee, if you're talking about while you're alive, it'd be an agent under a power of attorney. And these all could be different people, but often they're the same people that are handling the business whether you're alive or deceased, and making sure they're the right one can make all the difference in the world.
Lisa
Sure. John, I came across a little joke the other day which I thought was really funny and it talked about an executor, who you name as an executor. And the joke said, "To name your enemy as your executor as revenge."
John
Right.
Lisa
Because...
John
Yeah, 'cause it's not a great job, it can be difficult.
Lisa
Yes, it's a thankless job.
John
It's a thankless job.
Lisa
But I thought that was pretty funny. I hadn't seen that before, but I do know that some family executors that we've worked with, held their hands, guided them through the process, I know that in the end sometimes they felt that way, "Why did dad hate me so much as to name me to this role?"
John
And Lisa and I have both been appointed by courts as executors of estates where there was no executor or no family.
Lisa
No family, yeah.
John
Or something like that, and I had one recently where the lady had no family and she ended up leaving everything to a charity for the benefit of some animals. And yeah, you wanna talk about thankless, I didn't get a card from the Tigers.
Lisa
Right, or really even the charity. They were like, "Okay. How much and when do we get it?"
John
That's pretty much right.
Lisa
"What's taking so long?"
John
Yeah, that's pretty much right. I get it that it wasn't my gift, I didn't do it, but I did have to spend quite a bit of time and effort, and then of course, I was compensated for it. So I get all of that, but when you're actually trudging through the work of settling those affairs, it can feel somewhat thankless, and so I've had lots of people, lots of clients who have said, "Yeah, I wouldn't wish this job on anybody."
Lisa
Right. So well, John, let's talk about one of the very first and obvious things when it comes to choosing an executor, or a successor trustee, or something upon your death or incapacity. One of the things that pops up quite a bit is, do you choose your spouse to serve in that role? And for younger people who might be listening they may think, "Well, yeah of course. Who else would I want but my spouse?"
John
Right. If I'm 40 of course, what am I gonna do? Appoint one of my twit teenagers?
John
Of course not. Of course, at 40, the spouse makes perfect sense.
Lisa
Right. But really, frankly, as people get older and they really start thinking about some of these things, we see a couple of dynamics at play. First of all, we see among our older couples, we will often see that those traditional roles where the husband took care of all the business, and he earned the paycheck, and he paid the bills, and his wife just was the homemaker and she wasn't worried with any of that stuff because the husband took care of it. And so when they come in to make wills, a lot of times the husband doesn't even really consider his spouse as a potential executor because she's never really handled business before.
John
Right, she just... He said, "That's not what she does," and she cooks and cleans, or whatever.
Lisa
Right. Makes him his coffee and sandwich. So we'll get that dynamic, and so we'll see that quite a bit, and in that case oftentimes, the husband will choose an adult child to be the executor. And John, that can be a little strange because obviously, when we have a married couple and a spouse dies, who is the greatest impacted person in that scenario?
John
It's almost always gonna be the spouse.
Lisa
So it's a little odd to think about that all the business of dealing with this estate is going to be handled by an adult child or a friend of the deceased when all of that business impacts the spouse, most of all.
John
Right. And there are decisions that have to be made and things that have to be done and you can often kinda create a situation where you have an adult child substituting their own judgement.
Lisa
For what's good for mom.
John
For what's good for mom.
Lisa
We always encourage, especially... And I can usually tell when we have that couple. It's not hard to pick up that that's been their traditional roles.
John
Well, and let's be clear because I've had it both ways. I have had where the wife handled all the business and the husband just went to work and...
Lisa
And gave his paycheck to the wife. [chuckle]
John
And gave his paycheck to the wife and the wife handled everything. So I've actually seen this in both versions.
Lisa
So when we have those dynamics, a lot of times one of the spouses is thinking about someone else instead of their beloved spouse to be the executor. They need to really give that some thought given how much impact the surviving spouse is going to feel. And John, the other part of the dynamic when we talk about spouses serving as executors, it really can be a point where maybe we have an older couple and because of their health challenges and things, their aging challenges, maybe these spouses are not equipped health-wise, energy-wise to serve as that executor even though... And so then we get into an issue of that person, the discussion between the couple many times can be a little strained because the spouses, they want to serve as the executor and it can be a very hard discussion for one of them to face the other and say, "Well you know, I would love for you to do it, but I'm just worried that your health and you really couldn't take care of everything the way it needs to be taken care of."
John
Well and particularly, if there's already a diagnosis of say, a disease that we know is going to progress like Alzheimer's for example, early on in a diagnosis, that person may be fine, but they're not fine enough to realize that they're not gonna...
Lisa
They're not capable or...
John
That they're not gonna stay that way.
Lisa
They're not gonna stay as capable as they are today, yeah.
John
As capable, exactly and so it can be very difficult to address some of those issues and so it just gotta be done. It's gotta be done carefully.
Lisa
Yeah. Well, I've got another little thing on spouses to talk about, but John, why don't we go to our commercial break and then we'll come back and talk about that when we get back.
John
Sounds like a plan.
John
Welcome back to Aging Insight, everybody. We're in our second quarter of the show.
Lisa
Little segment. Oh. [chuckle]
John
If you're gonna run in late, you gotta tell me so I can turn your mic on.
Lisa
Oh, you're gonna cut me off, I see.
Lisa
Okay, well, we're talking today about choosing an executor, some of the issues to really think about. And in the first segment, we talked about choosing your spouse and some of the dynamics that go along with that. But John, blended families are always a challenge. Or not, well, they're usually a challenge, how's that?
John
Well, I think in almost any situation that involves a blended family, you do have to take extra precautions.
Lisa
Yeah.
John
Even when everybody gets along, just in the sense, for example, I had a lady the other day and she wanted me to look over their wills and she was like, "Oh, we've just got a real simple deal. I don't have any kids, but he had two from his first marriage, but everybody gets along great. And so, we just had some simple wills done. Left everything to each other. And then, if I died, I wanted it to go to my brother, and if he died, he wanted it to go to his two kids." Well, when you actually looked at it, essentially what they had created was this race to the finish.
Lisa
Right. Yeah, who was going to survive who.
John
'Cause his will said, "I leave everything to my wife, but if she's already dead, I leave everything to my two kids."
John
Hers said, "I leave everything to my husband but if he's already dead, I leave everything to my brother." And so, essentially whenever the first spouse died, whichever first spouse died, their beneficiaries were gonna get it all and the other side's beneficiaries were gonna get nada.
Lisa
Nothing, yeah. But, okay looks like we got a caller. So caller, welcome, you're on Aging Insight.
Caller-2
You know, nowadays, so much of what we do and hope to do or look forward to in the future is relying on the computers. And computer heads are pushing that. And I'm kinda reluctant of the conveniences and whatnot. But here's where I'm going with this, I think at some point in the future, as computer intelligence is developed, there will be people that don't have a lot of money to spend on these things and don't know who to choose to execute all of that. It'll be done by a computer, computer program.
Lisa
I think there's some concerns there. I think even more than the computers, I kind of expect government to step more and more in to dictate, more and more.
Caller-2
Actually, that's yeah. Yeah, I think you're probably more than likely right on that. It'll be a government bureaucracy more than computers, you're probably right about that.
John
But on that same note, right in the middle or toward the end of last year, Australia became the first country to approve the probate of a purely digital will.
Lisa
Yeah.
John
It was the first time a completely electronic document was probated as a last will and testament anywhere in the world. They did it in Australia. So yeah, I think there is certainly some of that that's coming around.
Caller-2
Well, and there's a push toward, away from ownership of private property.
John
Yeah.
Lisa
Right. And that's where the government, with their control of a probate process, we've even seen some of those abuses already. But luckily, we still have it right now where there are individual and you can choose family members or trusted friends to do these roles. So, so far, we're good. [chuckle]
John
That's right. But some of the stuff that we're talking about, and thanks for calling, we're about to have to break for our bottom of the hour. But that's one of the things is if you pick poorly in some of these power roles, what you will see is government taking over.
Lisa
Right.
John
Or essentially the court system taking over. We'll talk more about that once we get done with the break. And in the meantime, you can try to think and see if you've got any questions for us out there. We'll see you in a second.
Lisa
All right. Welcome back everyone to Aging Insight. This is Lisa Shoalmire and here in the studio today with John Ross who's...
John
Barely.
Lisa
Yes, so, yeah. He is here, what a trooper.
John
That's right. Just for you listeners out there I dragged myself off the couch.
Lisa
And you will soon be returning to it, I'm sure.
John
I will soon be returning to it just so I can provide you all some information and maybe... You had a full hour of Lisa last week and I just couldn't do that again to you.
Lisa
Oh, yeah, right. And of course, John, you're just looking for the sympathy, so all throughout the week, should you be well enough to be at work, you're just waiting for everybody to ask how you're doing...
John
Yeah, that's right.
Lisa
After listening to the radio.
John
That's right, I'm just milking the sympathy.
Lisa
But, well today, we're talking about choosing an executor and I wanna get into some nuts and bolts about it in just a second. But I did wanna bring up one more thing about spouses serving as executors or not serving. When we have a blended family, many times we have a husband and a wife who are the senior generation and then we have the next generation down of adult children belonging to husband and wife, but not together. These are not the joint children of this senior husband and wife, these are children from prior marriages or whatnot. So I get a lot of wills in this situation where I'll just go with the husband because it seems like normally the husband passes on first but not always.
John
That's gonna be statistically more likely, yes.
Lisa
But that husbands will, instead of appointing the wife as an executor, appoints one of his adult children. And this can really be an issue if, for instance, the elderly couple has been living in the husband's separate property. She sold her house and moved in to his house that he had before they got married. We see that quite a bit. And I'm not talking about just a year or two marriage, although those certainly happen.
John
We've seen problems in this context even in 30-year marriages.
Lisa
In 30-year marriages. A lot of times, the surviving wife, she maybe joined the family when the kids were young children or teenagers, so she's been in this family. But it is amazing how quickly many of these situations deteriorate and by appointing the adult child, who, again, you're kind of setting up a lot of times, some friction. I have had the adult child just give that surviving spouse just give the business to make her life miserable, make her wanna move out of the property, make her just want to clear the family as quickly as possible, and it's really a sad situation, and really, that whole situation was set up, John, by the selection of the executor.
John
Right.
Lisa
And if the executor had been a disinterested party or that was a friend of the adult children and...
John
Friend of the family, or a corporate bank, or a trusted professional like a CPA or somebody like that.
Lisa
Yeah, and of course, family members, they don't know the law, they don't know their obligations. And so I mean, just a couple of weeks ago, John, I had a lady who, after her 20-year marriage, she lost her husband to a terrible disease that was prolonged and she was there by his side. But as soon as he passed away, the kids put up a gate and a lock across the entrance to their dirt road to their home that she lived in for 20 years, she couldn't even get in to get medicine and change of clothes. That's how... And prior to that, I wouldn't say it was the closest family situation but there was certainly no indication that it was going to be that. And essentially, the adult child who was the executor, will had not even been probated yet.
John
Right.
Lisa
But he took the position, "I'm the executor, I'm now in charge," even though under law that's not the case until you've been in front of the judge but put the lock up and made her call him and she ended up having to call a sheriff's officer to get into the property.
John
Right. Not to supervise, but the sheriff had to make him do it.
Lisa
Yes, had to make the adult child unlock the gate.
John
Douche bag, but regardless, I mean it's just terrible. I mean, but I mean I had the one where the kids hid deer cameras all around the house, so that when the spouse would walk outside, these flashes of pictures would be taken just so that she would know that she was constantly under surveillance. I mean, just awful, awful people. And yet, many cases, I won't say that there were some idea that that's how it was gonna turn out, but certainly, it's the dead person that created that problem.
Lisa
Right.
John
No question about it.
Lisa
And then a lot of times, the memories of that deceased kind of get tainted by all these troubles that are brought on. So, picking an executor sometimes may not quite be as obvious as it sounds but there is a lot of issues when we talk about whether or not a spouse should be the executor. But, I wanna get into, we get asked a lot, "Does someone have to have some financial or accounting background to be able to do this job?" I would say that's certainly not necessary, what I really need is someone who is a responsible person, do they pay their bills on time? Do they take care of their own personal business? [chuckle]
John
Yeah, I know. We had the one lady who was talking and spent the first 30 to 45 minutes of the conversation talking about how poorly her daughter managed her own personal life, couldn't keep a bill paid, couldn't keep a job, couldn't pay a debt, couldn't do any of this sort of stuff. And then as the conversation comes around to executor, "Oh, it's the same daughter."
Lisa
Yes. So, a lot of times, we get to be the ones to point out, "Well, you just said that this person doesn't take care of their own business very well", and sometimes that can be a little dicey conversation because then sometimes, they look at us like, "Oh, why are you attacking my daughter?"
John
Right. But you're coming to us for good advice not the advice you want to hear.
Lisa
Yeah. So, one of the other... Another question, I just kinda wanted to go through some questions that we get asked. John, should you ask someone if they're willing to serve as an executor before you actually go out and sign the will or trust?
John
It's certainly... You definitely wanna make sure it's gonna be somebody who will actually do it. One point with all of this is there is no indentured servitude.
Lisa
Right. Even... If you name them as an executor that's certainly, that's a vote of your confidence, that sets them up legally to take on that role but they...
John
Yeah, if they want to.
Lisa
If they want to.
John
And I actually had a son one time and I said, "You know, one of your options is just to not do it."
Lisa
Yeah.
John
And he was like, "But the will says I'm the executor." I'm like, "Yeah, but... "
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