A Will is Arguably the Worst Way to Plan Your Estate

In this episode, John and Lisa discuss what the Will does, what it doesn’t do and what alternatives are available.

Episode Transcript
John
Welcome to Aging Insight everybody this is your host John live in the studio on AG insight. We’re here every week and just to make sure we … that we think you might need to know stuff about your health, your housing, your financial need, your legal need. If you want to get into the aging process, if you want to do it without becoming a burden to your family and you want to do it without spending all your life in a nursing home and you want to there you go.
Lisa
It’s such an amazing you know how many rumors are out there and so we get the privilege to put it on air every Saturday here on the 8.7 view and also get to share knowledge and to take questions and correct when anybody needs understanding … To share that knowledge and special thanks to Adrian, the Barnette Agency did works in the mental hospitals review by behavioral health credit union. At Wayne city, we have an .
John
Also we absolutely thank all that the program worked and we can all come here and like Lisa mentioned we are live in the studio so if you have a question you ca give us a shout at 903 793 1071 we would like to hear your questions. We are also broadcasting on Facebook live. If you are not on Facebook then go on to the Ross Mitchell Mayer Facebook page or the Aging Insight Facebook page and give us a like out there and you need to do that but if you want to see what it looks like to, feel what radio looks like instead of just--
Lisa
Yes, see what radio looks like.
John
Yeah instead of what it just sounds like you can go and watch live and you know just like a lot of the ESPN and stuff a lot of their programs and things the radio programs they now broadcast on TV. People sitting in front of microphones and now have turned into a TV show so.
Lisa
And now we’re cutting edge we’ve done a little bit of the same.
John
That’s right. Maybe one of the major marks will call us and say, Lisa we need you on our roll.
Lisa
Maybe but I’m just so glad we’re here in our community to be able to help. There’s such a lack of x teams in the south side, it feels good. I get the good the warm fuzees when I can help folks so and I got some warm fuzees this week John. I guarantee you that if every week there is some place that we are out speaking in the community.
John
Yeah either you or me or Christine or Clyde, one of our attorneys is out there in the community speaking every week and in many cases multiple people multiple times in multiple locations.
Lisa
Yeah. I had the privilege on Thursday morning to speak in our monthly exib issues breakfast here in the Texarkana area and for trinity church that is on the fourth Thursday of every month except November and December. Everybody is busy with holidays in November and December.
John
No sense in trying to do it then.
John
The difference between a spring break week and a not spring break week is not much difference. I didn’t personally notice any difference. For me I still had to show up for work.
Lisa
Yeah. Gabriel talked to that group and john I actually took something we did on radio a few weeks ago. We talked about how important drafting is and using your own words.
John
Yeah we talked about that on the radio a couple of weeks ago.
Lisa
So I actually want to expand on that and talk about…
John
Yeah. I actually spoke in … was it the teachers, I think it was the teachers association and then they had a nursery in … I think or Henderson. I spoke in Henderson about tax heaps for them and stuff they need out there. I guess that’s kind of the point Lisa is that there is – the reason we do those sole mainly speaking engagements because it’s not just about wills and trust, it’s not just about what happens when you get out of the nursing home. There are so many different things taxes and real estate issues and government benefit programs--
Lisa
And retirement benefit issue.
John
Retirement, financial investments and the procedures are available and physical fitness and things like that. I mean there’s just so many different things that you need to know out there which is why we try to get out there and get you this information.
Lisa
Yeah that’s one reason. Your reason is here’s a secret, it gets us out of the office. We get to go out there and mingle with people and get out of that office for a little bit.
Lisa
That’s right. Now despite all of that you would think that as many times as we are out there communicating with the people during our radio show and doing our television show on channel 10, with all of these different resources out in the community people start walking into the office and be quite so uninformed.
Lisa
Well at least they show up at the right place.
John
They have gotten that part right.
Lisa
I mean John still so very frequently I have a brand-new person I’m meeting and they sit down at the table and they say well it’s time for me to get a will.
John
Well it’s always about the will.
Lisa
I came here to get a will.
John
I came here to get a will and just this week if you were to look at my account I’ve been through roughly about six to eight appointment a day five days a week if I’m not out there speaking and if you look through and you look at why did these people call, what did they want to know about when they came in, nine times out of 10 it’s my mum getting older and hasn’t done q will, we’re getting older we need a will.
Lisa
One of us has just gotten a diagnosis and we haven’t done a will.
John
Right. We’ve done a will but its’ old and we want you to have a look at it but it’s always about wills and all of that to say that – Lisa I would say that not only is will fairly not very important in a person’s general situation at least it relates to their aging and their retirement. I mean it’s completely irrelevant while you’re breathing.
Lisa
While you’re above ground your will is a no red scene, no consequent, no legal effect, no nothing, it’s just a piece of paper.
John
That’s right. I promise everybody that’s listening right now you personally will never care whether or not you have a will, period. It’s just not going to matter to you, it will matter to somebody else. On one hand it had no impact on you necessarily while you’re alive but more importantly you know this is a tool box full of tools and all of these different tools could be used to accomplish a goal. Some of those tools are going to be much more efficient than others.
Lisa
Right. You know the old saying if the only tool you have is a hummer then everything looks like a nail. Have you heard that before?
John
I have but even within the hummer you’ve got for example –
Lisa
Okay let’s see how tools ….
John
No, I’m just saying that we all at some point have had to maybe hang something on a wall and we just had these little tuck nails and we didn’t want to bother going out to the garage to get the real hummer so we just use the backside of a stapler or you heel or something like that. that’s a clunky – it maybe will accomplish the job maybe, it also might bend the nail, it might bust a hole in the wall, it might be completely inappropriate. On the other hand you could have a hummer just a regular hummer and that will accomplish the job better as long as you don’t slum your thumb under it.
Lisa
Right. John I think part of the deal is as lay people, as clients and community members who they’ve been doing their own thing, teaching schools, they’ve been making paper at the mill, they’ve been working on cars, they’ve been doing all the thing they do in their life and really the only tool I think most of them have really heard of very detail is they always hear about a will.
Lisa
Yeah some of that dramatic scenes in the movie but in all my years of law practice I have never once sat in a room with a descendant’s will with a grieving family in front of me and read it, never.
John
Yeah, read it to everybody. That is complete myth, that is Hollywood fantasy, that’s just not the way things go. You get the Hollywood myth of everything about the person’s death is related to their will, you hear it even from people I know –
Lisa
Financial advice?
John
Financial advisors, you hear it from people on the radio and stuff Dave Ramsey for example.
Lisa
Dave Ramsey I know one time he was talking about it and he said and he did talk about the statistics that very few people had wills and he was like, get a will otherwise it’s just a redneck mess, and I did appreciate that and I did appreciate the fact that he was basically telling people maybe to do some planning.
John
Right but he didn’t say go do some planning, he said a will and in fact the reality of it is that the will is a very clunky inappropriate way for most people to use as their primary planning vehicle. Now I’m not saying having a will is not important in some situations but as the primary vehicle, as the engine that runs the whole deal it is not appropriate for most people it’s trying to hummer that nail in with a boot heel, with the back side of the stapler when right next to you are real hummers and big nomadic hummers and all kinds of cool stuff out there that can be much more efficient, safe, better protected, accomplish the job easier and cheaper all these different things and yet… of course there’s probably somebody else to blame for the commonality of the will out there.
Lisa
I was thinking that, attorneys.
John
Yes, that’s exactly right. You’ve got to blame some of the attorneys out there as well who frankly they know about it as much about this stuff as the listeners out there and have not stayed well versed on will alternatives or an estate planning alternatives.
Lisa
Or the challenges that seniors face and having them rather breathing and have nothing to do with the will.
John
That’s exactly right. So what we thought we would do today is we would talk about some of the problems with the wills, what a will does because if you know what a will does then you’re also going to start understanding what a will doesn’t do and some of the problems that go along with it and some of the alternatives out there. So that’s going to be today’s topic. If you have any questions again you can give us a call, you can comment on the Facebook page or whatever you want to do. just if you got questions we will be answering them but in the meantime we’re going to take a quick break so stick around we’ll be right back.
John
All right. So we got my headphones hang on my… it’s not as near as smooth when you just do it only on the Facebook. You can see all the other stuff. You’re getting tangled in your wires, you’re trying to run the board all at the same time.
Lisa
I think there was an episode of the Simpsons, when you talk about Hollywood, there was this episode of the Simpsons where they had the lawyer on that show.
John
Reynold Hunts.
Lisa
Okay, and I think there was an episode where there was a reading of a will and you know the Simpsons are always sitting up satire of other things and they had the wife and they had the mistress and they had the lawyer reading the will and it was play for gags. It’s a familiar enough scenario that you can play it for gags as far as the Hollywood thing goes.
John
Yeah. I actually had someone call the office who recently they called the office and wanted to know how much we charged to do a reading of the will. That’s just not a thing. I mean it really is a pure Hollywood –
Lisa
Now unless a scrupulous lawyer would have said, “Hey, come on in,” but that’s not what we say.
John
Yeah, but it really does permeate out there throughout everything. It’s out there all over the place and you just never know what people are thinking or doing buy yeah we did not charge them for them to come into the office where we read them their own will that they had in their possession and could have read before they showed up. That in nut what makes the will official. There’s some other stuff that has to happen for that will to become official which of course we’re going to talk about once we get back from these last breaks about one more minute before we become live on the radio. I appreciate all of you watching out there and I appreciate you all sharing the post and give us the likes and stuff that’s awesome, we appreciate it. When we’re on the radio we have no idea who’s listening.
Lisa
Yeah but sometimes we find out later in the week when people come up to us but with Facebook--
John
Facebook is live too and right there on my phone and I can see and it can tell me how many of you are watching so we appreciate it. All right. So we have one more commercial it’s going to be on for 19 seconds and then we’re going to be back on air so Lisa you can bring it in this time.
Lisa
All right.
Lisa
All right. Welcome back everyone to aging insight this is Lisa here live in the studio and I am here with John Ross. This song was out last week I forgot about that but I’m back.
John
But you are, you’re back here, you’re back4 with us now and we’re going to be talking about some stuff but we did actually just get a – we got a question on our Facebook live page right there during the break I thought we’d go ahead and answer it. The person on the Facebook live wanted to know if you could require a will if you’re owner financing a piece of property. So for example I got somebody that’s going to buy a piece of property from me –
Lisa
Like a contract for lease.
John
And they can’t get for example they can’t a loan at the bank or something like that so I’ve decided well, I’ll just essentially owner finance it and they’ll make payments to me overtime and once they make all the payments then the property will be theirs. So the question is, could I ask them to make a will or something? The answer is yes you could, the different question is should you and the answer to that one is no.
John
Yeah. You know what most banks will actually require, if a bank has some concerns that the person might die before they complete the purchase most banks will require them to get term life insurance policy and name the bank as the beneficiary. That would be a much safer way would be to require them to get s life insurance policy that means you are the primary beneficiary for at least up to the minimum balance of the loan on the property.
Lisa
Well and another way to do that John frankly to even avoid that because I recently had a family call and their 80 year old parent was about to get a 30 year mortgage which I was finding hard to imagine but regardless. A lot of seller financing or owner financing is done by a contract for dean type situation and the way to handle that is essentially the buyer quote is essentially renting the property from you but once they pay rent for x number of months or years then they get the deed to the property. So it’s going to make sure that ownership still remains with the seller but yet the buyer has a contract that says they pay the rent on time for x number of years … but it’s very important that all that be papered correctly. We see a lot of … agreement on that not papered correctly.
John
And this kind of takes us into what the will does and what it doesn’t do. for example if this person says, okay I’m going to modify this property but I need the buyer to do a will and the will says that at their death they’re going to leave the property back to me if it’s unpaid or they’re going to leave a certain amount of their estate to me to cover the loan or something like that. whatever the case maybe but the thing is if everything that person has … you can even name a beneficiary on this property like a house and if they’ve done any of those things that will bypass the will.
Lisa
Right. The will would control any asset if they are looking at to protect you from financial… the thing is you just want it to be a secured creditor. If you’re selling property and you’ve given them a deed and you’re on a mortgage and all that you definitely want to have that papered property at the court house because in probate matters- you know there are other people that get paid before you would.
Lisa
That’s right.
John
So they’ll tell you that you know say the hospital might get a funeral home might get you never know.
John
That’s right and actually why we’re going to be talking about this today is why you should be seeing real quick here, the will don’t do what you think it’s going to do and that’s why it’s such a bad tool. Anyway, we have to take a break, we’ll be back after the above the hour news break stick around.
John
It got tied up in my sunglasses in here. That’s actually a very good question. There are several other ways to accomplish that, there are life insurance doing contracts for deeds but I’ll tell you here’s probably my best advice when it comes to this, here’s what I’ve often told people, if I’ve got somebody that can’t get a loan from a bank then that means that the bank has decided that they’re not loan worthy and if they’re not loan worthy to a bank who’s in the business of loaning money--
Lisa
Yeah, who makes money by loaning money to somebody.
John
Yeah. They like to loan money but they won’t do it to this person then you probably shouldn’t replace your judgement for the bank and say well I’m in a better position. You know others obviously always …
Lisa
That can be family or close friends or relations that you know love and you want to help out and you understand why the bank won’t loan them money but that’s always the first thing. Is don’t carry the belt if you can avoid it. Get bank financing and anyway it’s not your problem.
John
That’s right. She called me and said that they just went through this with a situation where the buyer passed away and had 11 kids so dealing with an estate with 11 kids is a mess. Frankly dealing with an estate with one kid can be a mess and dealing with that many – you know I had a financial advisor the other day and he said some new clients that came in and he asked them he said well do you have any kids and they said well yeah we’ve got four kids and he said yeah which one of them is a problem? Then they said how did you know? He said because you got more than one. If you got more than one of them is going to be a problem.
Lisa
But you know especially the situation with the client with the 11 kids, those 11 kids they may have no idea what the financial arrangements are on the house and they think that mama owns it or promised – you just never know and so you’re battling with the understandings and it’s a mess.
John
Yeah, and then inevitably they’ll go get some lawyer that doesn’t know anything about it either. Then you’ve got the blind leading the blind and greed and grief and all of these other things … now that’s why you do some planning just to help avoid some of these things.
Lisa
I do see a lot of … and he still basically owns the property and the buyer is going to pay rent for 10 years and then if they pay rent for 10 years the deed is signed over to them.
John
There have been a few law changes related to those to protect buyers here recently but definitely, you need to explore all those different options out there just to figure out the best way to protect yourself as with anything.
Lisa
Well of course the other deal is not just financing but that buyer re you requiring them to keep insurance on the property, who’s paying the taxes, I mean those kinds of things come into play as well.
John
Yap. We’ve got about 50 seconds before we go back live on the radio so thanks for sticking around and watching the program we appreciate it and we’ll get back to our radio listeners here shortly.
Lisa
I think they kind of got an advantage they can just -
John
Yeah all they got to do it tie it. They don’t have to pick up the phone and try to call in or anything. Plus, if you’re on air everybody gets to hear it. When people call the people on Facebook can’t hear the call. We just haven’t--
Lisa
Yeah. We have to repeat that.
John
We haven’t figured out how to make that part work yet. All right, we got 15 seconds so let’s get back live on the radio and I’ll bring it in.
Lisa
Okay.
John
Welcome back to Aging Insight everybody, this is your host John Ross here live in the studio … If you have any question reach us on 903 793 1071, you can also reach out to us on Facebook live, it’s over at the Ross and Shoalmire Facebook page where you can check us out, you can make comments, you can see what it looks like to make radio.
Lisa
Make the sausage that’s right. Today we’re talking about wills as a tool and I think for the first part of the show John probably our listeners and our watchers have figured out real quick that we’re not big funs of the last will and testaments.
John
And again, I don’t want the people to get the impression that what we’re saying is that you don’t need or you shouldn’t have a will, what we’re saying is that you shouldn’t use the will as your primary planning vehicle. So first of all you got to understand what does it take to have a valid will. Basically, it takes two things, the first is you got to die.
Lisa
Right. So will means nothing, completely meaningless as long as you’re breathing.
John
Yeah. Some of you are probably laughing and saying yeah no kidding John, we’re not stupid but I guarantee I will have somebody walk into my office next week that will say something about…
Lisa
This will says, “I will get the forty acres over here,” and then you ask, “When did he pass away?” “Oh, he is still alive,” and so we say daddy can do anything he wants with his forty acres while he is breathing so will is nothing.
John
Step one, you got to die. Step two, you have to probate a will in order to make the will valid. There is no such thing as a valid unprobated will.
Lisa
Right. Still just a piece of paper.
John
That’s right. Looks like we have got a caller on the line, let’s see if we can get them on. All right, caller you are on Aging Insight…
Lisa
Oh yeah… that’s right. Well… right. Our caller was taking about that on TV and in movies, that’s all you hear; wills. I remember that show Dallas, I think they did a reading of a will in Dallas, he pointed that when Josh…
John
When they shot JR.
Lisa
No that was not when they shot JR, but when the patriarch Mistry… yeah you got to like Larry Hagman, he did a great JR. Yes, they used it as a dramatic device and so like you say, TV watchers they, “Oh, there is a will. That’s how you do this,” and you have this viewing family that held this a will and they used a will and that’s crazy so...
John
Well, and like you said in the TV show, they're opening the will before dad dies to see what it says and so and JR is like, “Yeah, thank you daddy.” In reality though, the will is not yet valid because they are still alive and it’s not even gonna be valid until it goes through the complete probate process…
Lisa
Sue Ellen gets this, yes. Well, thank you very much. No, John I think if there really was a thing called, ‘Reading of the wills,” we’d have to hire security
John
Oh yeah.
Lisa
Because…
John
I don’t want to let in all of those mad people involved in my office, again.
Lisa
That’s too much drama. For a will to even be valid, even if the will is the document that is being used, the testator has to die and the will has to be offered for probate at the court house, so until then, it’s just a piece of paper that is just as meaningless as last month’s electric bill.
John
That’s exactly right.
Lisa
It looks like we may have another caller on the line. Caller, you are on Aging Insight.
John
Yup. Sure. Yeah, the question is if you are trying to qualify for medicaids, say for a nursing homecare, and you have got a life insurance policy that has cash value, is that going to be a factor in all of this? Basically, for Medicaid purposes, they don’t count a home. They don’t count a car, they can’t pay the burial arrangements, but everything else they count.
Lisa
Including…
John
Including the cash value of now… the death benefit, they don’t count, but any other amount of that policy that you can pull out while you are alive, they do count. A lot of times when we… and we run into this pretty regular. There is usually several different things that can be done even in an emergency kind of situation; for example, if the person hasn’t already paid for the funeral, then we can assign a life insurance policy in a funeral home, instead of being … life insurance policy it comes pre-paid funeral; and that … You can do that the day before you went into the nursing home, no big deal. I wouldn’t be too worried about a lot of insurance. That’s just one example. We can always deal with those sorts of things. What I would say though is, make sure that the people around you, the people that are going to be helping you have access to that information. We had a case, months ago, or whatever and we will ask, “Well, does he have any life insurance?” “We just don’t know,” and I also know Lorenzo and three months into it, we find a policy and now we’ve got a problem. … that has all that stuff in it. Did that answer your question? Yeah, absolutely. Thanks for calling.
Lisa
This just goes to show you John, calling in with a question about life insurance, I mean there are so many puzzle cases to all of this. One thing to remember about life insurance versus a will, is that life insurance money, the death benefit, so long as you have assigned a beneficiary, then those funds go directly to the beneficiary. A will doesn’t control those … proceeds anyway.
John
That’s is kind of what we were talking about there. The will doesn’t do what necessarily what you think it’s going to do and so like this lady talked out that… sounded like I had actually set that up for her, where her home or other real estate, would pass but with right of survivorship, which means that there are multiple owners to a piece of property and when one of those owners dies, it just a automatically then belongs to the surviving joint owners.
Lisa
Under the law, it automatically leads it belongs to those owners. Our title companies needs some education in that area.
John
The whole point there is that that’s an instantaneous transfer at death.
Lisa
That doesn’t have to go through that will or that probate process.
John
If the only asset that you have is … or your biggest assets really is that home, like the lady with this for example, she might have some money in the bank, she might have an IRA, she’s got some life insurance; all of which you can name a beneficiary on it.
Lisa
Right so what do we need a real will for?
John
Right. The only other asses then is the house, and if you do things like a transfer on the deed, a beneficiary deed, a write a survivorship deed, a lady bird deed, all of these are ways to create…
Lisa
A living trust.
John
Yeah, a revocable trust. There is a lot of different ways that you can transfer that asset without having to go through the process of somebody hiring an attorney, going to a court house, getting a … executor and…
Lisa
Are those 16 months of …
John
Round trip.
Lisa
As the farmers and the… you know back in the day farmers would be centrally located.
John
For people out there and especially if you start talking about being in a big city like Dallas or Houston or something. You take whatever you think that probate might costs and …
Lisa
Pull it, triple it.
John
Yeah, in Dallas County, you might as well as quadruple it; it’s outrageous. We are going to take one more break and when we come back, we will finish up our discussion. Stick around; we will be right back.
John
It’s amazing how fast this little segments go.
Lisa
I know, there is so much we want to get to.
John
Yeah we have to have like we are…
Lisa
We are waiting.
John
More we need to talk. We are yelling Duncan can we hanging often is when we got those people that are coming in after the whole deal is all over, and then they thought the will is going to do something and then we get to be the bad guys, and tell them why what they thought is not right. We get to be the bearers of the bad news.
Lisa
Well especially if lay had the family attorney forever and ever and they thought it was gonna work this way and now there is a Medicaid lean and there is all kinds of problems and it is rough.
John
Allergies. Everything is yellow. I don’t know if you all can see the flashy light?
Lisa
It’s our telephone.
John
That’s our telephone line, but we have only got 20 seconds so I can’t answer that call, so we got to wait for that to come back on the radio here. All right. Ten seconds until we are back live on the radio.
Lisa
Welcome back everyone, this is Lisa Shoalmaire here with John Ross. You are listening to Aging Insight, we’re here every Saturday, and we are a live program, so if you do have a question, give us a call. I know we had a call during our break, so looks like they have called us back, so caller you are on Aging Insight. What can we do for you? Yes… Yes… perfect. We were definitely going to do that. We will answer your question, if you just hang up the line, and we will go on then. If you need some more clarification, you just buzz us right back. All right. Our caller had a question of, we had kind of mentioned that maybe hospitals or other people can get property that pass through Eggwill before it every goes to the beneficiaries and so the caller wanted to know a little about that.
John
If you die and you owe anybody money, whether we are talking about hospital bills, whether we are talking about cars, or the big one that we see out there, and that is home care. If you go to a nursing home, you can have a home worth a half a million dollars and so I think the money the State pays for you. They want to get paid back when you die, and so going to a nursing home and qualifying for Medicaid is just racking up a credit card bill.
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