[music] 00:00 S?: Welcome to Aging Insight, the only show dedicated to your elder care concerns and your resource for learning about how to manage your health, housing, financial and legal needs. This is a live call-in program featuring John Ross and Lisa Shoalmire, elder law attorneys and senior advocates for the Ark-La-Tex. Aging Insight is dedicated to helping you navigate the challenges and blessing of growing older. So call in and ask your questions. The number is 903-793-1071. Now, here are your hosts, John Ross and Lisa Shoalmire. 00:35 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. 00:57 Lisa: Right now, yeah. 00:58 John: So, caller, you're on Aging Insight. What can we do for you? 01:03 Caller-1: Hello? 01:04 John: Hello. 01:05 Caller-1: Is this Aging Insight? 01:06 John: Yes, sir. You've got it. 01:08 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. [laughter] 01:32 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. 01:38 Lisa: But no whiskey. 01:39 Caller-1: That's what my grandmother told me 40 years ago, tea, and honey, and peppermint. 01:44 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. 01:57 Caller-1: Yeah. That whiskey helps it, it's supposed to, I guess. Yeah. [laughter] 02:00 John: I don't know. 02:01 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. 02:14 Caller-1: Okay. Well, thank you. 02:16 John: All right. You have a good day. 02:18 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. 02:32 John: Yeah. But I'll tell you what, if it's 60% that keeps you from getting it, hey, it was worth it. 02:39 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. 03:12 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. 03:24 Lisa: Sure. 03:25 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. 03:55 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... 04:18 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. 04:31 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. 04:56 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. 05:38 Lisa: Right, so a lot of times... 05:39 John: Or at least not in their opinion. 05:40 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." 06:09 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. 06:23 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. [chuckle] 06:34 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. 07:24 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." [chuckle] 07:43 John: Right. 07:44 Lisa: Because... 07:44 John: Yeah, 'cause it's not a great job, it can be difficult. 07:49 Lisa: Yes, it's a thankless job. 07:51 John: It's a thankless job. 07:52 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?" 08:11 John: And Lisa and I have both been appointed by courts as executors of estates where there was no executor or no family. 08:21 Lisa: No family, yeah. 08:21 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. [chuckle] 08:39 Lisa: Right, or really even the charity. They were like, "Okay. How much and when do we get it?" [chuckle] 08:45 John: That's pretty much right. 08:46 Lisa: "What's taking so long?" 08:47 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." 09:15 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?" 09:43 John: Right. If I'm 40 of course, what am I gonna do? Appoint one of my twit teenagers? [chuckle] 09:50 John: Of course not. Of course, at 40, the spouse makes perfect sense. 09:55 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. 10:35 John: Right, she just... He said, "That's not what she does," and she cooks and cleans, or whatever. 10:40 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? 11:11 John: It's almost always gonna be the spouse. 11:13 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. 11:30 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. 11:44 Lisa: For what's good for mom. 11:45 John: For what's good for mom. 11:47 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. 11:56 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... 12:09 Lisa: And gave his paycheck to the wife. [chuckle] 12:11 John: And gave his paycheck to the wife and the wife handled everything. So I've actually seen this in both versions. 12:18 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." 13:32 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... 13:52 Lisa: They're not capable or... 13:53 John: That they're not gonna stay that way. 13:54 Lisa: They're not gonna stay as capable as they are today, yeah. 13:56 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. 14:06 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. 14:15 John: Sounds like a plan. [background conversation] 14:34 John: Welcome back to Aging Insight, everybody. We're in our second quarter of the show. 14:40 Lisa: Little segment. Oh. [chuckle] 14:43 John: If you're gonna run in late, you gotta tell me so I can turn your mic on. 14:45 Lisa: Oh, you're gonna cut me off, I see. [laughter] 14:48 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? 15:10 John: Well, I think in almost any situation that involves a blended family, you do have to take extra precautions. 15:17 Lisa: Yeah. 15:18 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. 16:03 Lisa: Right. Yeah, who was going to survive who. 16:05 John: 'Cause his will said, "I leave everything to my wife, but if she's already dead, I leave everything to my two kids." [laughter] 16:12 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. 16:31 Lisa: Nothing, yeah. But, okay looks like we got a caller. So caller, welcome, you're on Aging Insight. 16:38 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. 17:23 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. 17:39 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. 17:52 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. 18:06 Lisa: Yeah. 18:07 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. 18:19 Caller-2: Well, and there's a push toward, away from ownership of private property. 18:25 John: Yeah. 18:26 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] 18:45 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. 19:04 Lisa: Right. 19:04 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. [background conversation] 19:51 Lisa: All right. Welcome back everyone to Aging Insight. This is Lisa Shoalmire and here in the studio today with John Ross who's... 20:00 John: Barely. 20:00 Lisa: Yes, so, yeah. He is here, what a trooper. 20:03 John: That's right. Just for you listeners out there I dragged myself off the couch. 20:09 Lisa: And you will soon be returning to it, I'm sure. 20:10 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. 20:21 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... 20:31 John: Yeah, that's right. 20:31 Lisa: After listening to the radio. 20:32 John: That's right, I'm just milking the sympathy. 20:34 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. 21:24 John: That's gonna be statistically more likely, yes. 21:27 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. 21:55 John: We've seen problems in this context even in 30-year marriages. 22:00 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. 22:52 John: Right. 22:53 Lisa: And if the executor had been a disinterested party or that was a friend of the adult children and... 23:03 John: Friend of the family, or a corporate bank, or a trusted professional like a CPA or somebody like that. 23:10 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. 24:00 John: Right. 24:00 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. 24:13 John: Right. Not to supervise, but the sheriff had to make him do it. 24:19 Lisa: Yes, had to make the adult child unlock the gate. 24:23 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. 25:02 Lisa: Right. 25:02 John: No question about it. 25:02 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] 25:41 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." [laughter] 26:09 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?" [laughter] 26:25 John: Right. But you're coming to us for good advice not the advice you want to hear. 26:30 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? 26:48 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. 27:02 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... 27:12 John: Yeah, if they want to. 27:14 Lisa: If they want to. 27:15 John: And I actually had a son one time and I said, "You know, one of your options is just to not do it." 27:20 Lisa: Yeah. 27:20 John: And he was like, "But the will says I'm the executor." I'm like, "Yeah, but... " 27:23 Lisa: But there's a backup. 27:25 John: But there's a backup. [chuckle] 27:25 John: I mean, you don't have to do it. This is gonna be a problem. You already know this. It's gonna create a bunch of animosity. You don't have to be the guy. And so yeah, I mean especially if it's... I think if it's your spouse or something you're probably having that conversation at the same time. If you have an only child, they're probably already under the assumption that it's them. 27:53 Lisa: Right. 27:53 John: If you're planning on picking your cousin Stewie that you haven't seen in a while but he's a super smart business guy in Dallas, then yeah, you probably wanna call cousin Stewie and make sure he's okay with that. 28:05 Lisa: Yeah. So, and of course you can name an executor and there may be things going on in that executor's life at the time that while they are perfectly willing and consenting to do it when you name them, they may have their own family challenges or something, health challenges going on by the time that their service is needed. And so yeah, they can decline and it could be assigned to someone else which John then raises the question of, "Do you just name one executor to serve? Do you name co-executors to serve? Do you name successive, what is that? 28:41 John: Yeah, anytime you're appointing something that can die, it probably needs an alternate. And in fact, a piece of good advice to everybody out there is that no matter how many successive alternates you have on there, the last successive alternate should be something that doesn't die. 29:09 Lisa: Yeah, and by that John, you mean like a corporate fiduciary or executor like a bank, or... 29:14 John: Right. If I say, I appoint my spouse, if my spouse can't do it, child one, if child one can't do it, child two, if child two can't do it, child three, if child three can't do it, then my oldest grandchild and if none of them can do it, then... 29:32 Lisa: Guaranty Bank, one of our sponsors. [chuckle] 29:33 John: A local bank. 29:34 Lisa: Yeah. That is something that you can always do. It's a backstop, you're not inviting them into your business. They are way back in line, but it is a backstop, so that the court is not willy nilly, picking someone who... And John, we see it. The courts play favorites, they have a couple of folks, their go-to folks, or go-to institutions that... 30:00 John: Sure, and often, and sometimes individuals. 30:04 Lisa: Yeah. 30:05 John: We've run into that with a surrounding area where one of the judge and some of their cohorts... 30:18 Lisa: Yes. You didn't wanna say cronies? 30:21 John: No. I'll say cronies. 30:22 Lisa: Okay. 30:22 John: So the judge and his cronies had basically a backroom deal where they would find these things, where there was nobody in charge, and then the judge could get his buddies in charge, and everybody could get paid off the deal. 30:35 Lisa: Yeah, yeah. So it happens. 30:37 John: Yeah, that stuff is out there. Well, I guess there's a couple of more things to talk about on this, but once again we have to take a break. There's three breaks during the program, they just sneak up on you. Stick around, we'll be right back. [background conversation] 30:42 Lisa: Welcome back everyone to our final segment today on Aging Insight. I'm Lisa Shoalmire here in the studio with John Ross, who's trooping right through the day into our final segment, so congratulations, you made it. Today we're talking about some issues we see with executors under wills and some common questions that we get. And John, one of the other questions I get when a family member is in, and they're dealing with the grief and the loss, and then there's this will and a lot of times, if I have an adult child sitting in front of me, they have two kids under the age of five at home, they're a sales rep in the Dallas area, and that they've just lost their parent, and there's this will. 31:30 Lisa: One of their questions frankly is, "How much time does this take? I mean, I have a job, I have a family to take care of. What's the deal?" I would say, John, that time-wise... Of course, all that depends a lot too on the dynamics of the family. If your baby sister is mad as a hornet about that she didn't get the house, or the bulk of the estate, and she's just gonna be a problem the whole time, that's probably gonna take a little more time to deal with, than if everybody is just trying to collaborate, and cooperate, and take care of business. But I think this particular issue, this makes a lot of difference of who you choose to serve as your legal guidance through this process. And in Texas and Arkansas courts, you cannot represent yourself as an executor in front of the courts. 32:30 John: Right. Unlike say, a criminal case, where if you were to get arrested, and you wanted to represent yourself in that criminal proceeding, you actually have that as a right. 32:41 Lisa: Right, or if there's a family law or divorce matter, you can represent yourself in that matter. 32:45 John: Yeah, and by the way, that would be dumb. But you can, you have the right. 32:51 Lisa: Yes. 32:53 John: However, in a probate case, even if you wanted to be dumb about it and try to do it yourself, you can not. You must have an attorney in order to petition a court to become an executor. 33:06 Lisa: Right. And a lot of people, when I tell them this, they say, "Well, gee, you attorneys, you've got the market locked down. Gee, I can see that." But there is a reason. And the legitimate reason is, when you are serving as an executor, you're not just representing yourself. You are a fiduciary, a person in a role of trust and you actually have a responsibility and a representation of any and all other beneficiaries of that estate. So, the law says that because you as a non-lawyer can't walk into court and represent your cousin in a criminal manner, then the same rule really applies to executors that you can't walk into court and represent other people who are beneficiaries under a will. 33:56 John: That's right. Yeah, when you're the executor, you're not there on your own behalf. You're there on behalf of all of the beneficiaries of the estate. And not just the beneficiaries of the estate but also the creditors and such of the estate. 34:11 Lisa: Right. So if you screw up... And this estate, there was a Visa bill too and it didn't get paid properly or the house ended up getting foreclosed on because the mortgage wasn't managed properly during the probate, those things, they can happen. And you really, you need proper legal guidance 'cause there are so many rules about how you have to deal with creditors, and in what order you can pay things, and when beneficiaries can get distributions, and when they get distributions, what kind of receipts and how they need to receive those. Lots of rules. And so as far as the time that it takes, I would say, John, that first of all, you need legal counsel that is really gonna hold your hand. 35:01 Lisa: And frankly, just tell you what your marching orders are, but they do pretty much the heavy lifting, all the paperwork to the court, all the paperwork to the creditors, make sure the executor gets appointed properly, and basically, makes your life easier as executor. If you have an attorney that doesn't respond and seems to always be behind, then you're gonna spend more time as an executor on that case. And in any probate matter, it seems, John, that there is a flurry of activity at the beginning of the probate. 35:38 John: Yup. And then you sit around for a while. 35:39 Lisa: And then you sit around for a while. And then there's flurry of activity at the end but... So time investment, an executor, you can work a full-time job, you can have your family and you can still serve as an executor. 35:53 John: That's right. You're just gonna spend quite a bit of time on the front end, first couple of weeks, doing lots of different things and then you're gonna sit around, and in many cases, not even touch it for possibly months and then you're gonna do a bunch of work again for a couple of weeks towards the end. In the meantime, the attorneys are out there, toiling away. 36:15 Lisa: That's right. [chuckle] 36:16 John: Actually, that's not really right, either. You spend a good portion of that time basically waiting for time limits to run out. 36:22 Lisa: Right. The notice to creditors and the proper time limits have to run. And so a lot of times, there's not a whole lot we can do during those creditor notice periods. But anyway, one of the other questions is, "Can you get paid as an executor?" I would say, John, that of course, yes, an executor can be paid for their executor services. However, most family executors, spouse, child, most people who do their will, they say that those people don't get paid other than any out of pocket expenses that they may have had, overnight courier or, insuring the house, but they don't get paid for their time. 37:07 John: Often, if you think about it, for example, if you're leaving everything to three children in equal shares and then one of those three children is gonna be the executor and you allow that that child can take a fee for their services as the executor, then ultimately, what you're gonna end up with is a disproportionate distribution. 37:27 Lisa: Yeah, the child serving as executor gets a little more of the estate and probably has ticked off his siblings. 37:33 John: And you gotta understand. It's like every other job on the planet. While you're doing it, you're putting in a lot of time and effort. The people sitting on the outside watching you do it seem to think, "Oh... " 37:47 Lisa: "You're just taking your sweet time and you're not doing anything." 37:50 John: Yeah, yeah, it's like you see people complaining about, "Oh, every time I drive by a road construction crew, they're all just standing around drinking coffee." Well, sometimes there are some guys standing around drinking coffee. In many cases, because they've been out there since 5:00 in the morning, shoveling hot tar. If you would like to go shovel hot tar, that's hard work. And yeah, they take some breaks but the people speeding by at 70 miles an hour don't see it. And you'll see the same thing with family. The kids, all they see is "Oh, well, our sister got... Instead of getting a third, she got a third plus... " 38:30 Lisa: Plus a big fee. 38:31 John: Plus a big fee. 38:31 Lisa: So now obviously, if a bank or a professional fiduciary serves in that role, they get paid. 38:38 John: They do. 38:39 Lisa: So they don't do it if they don't get paid. [chuckle] 38:41 John: Yeah, and as far as that goes, you may want to identify that because for example, in Texas, there's a very specific way that the executor fee is calculated based on the income that comes into the estate. 38:58 Lisa: The property in, the property out. 39:00 John: Expenses that are paid on the backside. On the Arkansas side, the executor and the attorney's fees are actually a stated percentage of the estate. 39:10 Lisa: Right. 39:13 John: Sometimes you can have an estate that's relatively simple to administer and yet the statutory percentage fee is quite high. That sort of thing can really create some animosity. 39:30 Lisa: For instance, I remember estate maybe it had like $1 million in an investment account that didn't have a beneficiary. So we had to open an estate in the Arkansas side, I think there was a 5% fee to the... 39:44 John: It starts at 5%, goes down to like 2%, but even 2% of a million bucks is a good little chunk of change. 39:51 Lisa: Yeah. And there really wasn't that much to do. 39:53 John: Yeah, get appointed, go get the money and divide it. 39:57 Lisa: Give notice to creditors and divide it. 40:00 John: So, if you're going to... If you're gonna name a fee, it's not necessarily just good enough to say they can take a fee. You might even want to identify that as a specific dollar amount or something, depending on circumstances and where you live and things like that. 40:18 Lisa: Well, John, now we're reaching close to the end of our program, but I wanted to... I think I've just enough time to bring up something real quick. One of the questions the executors ask me, "Can I get sued in my role as executor?" And, as I tell everyone, anybody who's got a couple hundred bucks and a 'want to', can go down to the courthouse and file suit. 40:39 John: That is correct. 40:40 Lisa: But yes, serving as an executor, you can be sued, sometimes the claims are invalid, sometimes they're valid if you haven't been doing your job. But there are specific provisions about you as an executor serving as a fiduciary, that if you breach your fiduciary duty to these other beneficiaries or to these creditors by not doing things properly, you can be sued personally in that role. 41:09 John: Let's be clear in the sense that the executor is not personally liable for the debts of the deceased person. 41:17 Lisa: That's correct. 41:18 John: So, if you're the executor and the decedent had $100,000 in assets and $150,000 in debts, so all of their debts are gonna go to their creditors and they're still not gonna be enough to pay everybody. Well, you as the executor are not responsible for those. 41:39 Lisa: Right, no, as long as you follow the proper procedures and pay everyone in the proper steps in the proper way, even though the money runs out and there's no liability there. 41:48 John: That's right. On the other hand though, if you take that 50,000 and go to Aruba on a vacation for yourself, and then the creditors don't get paid because you mismanaged the funds, then yeah, you can get sued. And because an executor is... The way the court system, the legal system looks at it, you're in a very important position, and because you're in a very important position, you're expected to act not just reasonably but you're supposed to act in the absolute best interests of everybody involved. 42:26 Lisa: Good faith. Lots of magic words, good faith and fiduciary, and position of trust. 42:32 John: For example, let's say that it's an estate that's gonna take a while and you just put everything in a bank account, well, did it earn any interest? And is that your fault? So did you mismanage it from that standpoint? There's a lot of different ways. So going back to the executor job can be... It can create some personal liability. It goes back to getting some good advice along the way. If you've got a good advice and you're not a crook, generally speaking... 43:03 Lisa: You can serve and take care of things. 43:05 John: Yeah, that's exactly right. So once again, we've reached the end of our program. I wanna say thanks to all of our sponsors like Texarkana Funeral Home, The Barnett Agency, Edgewood Manor, Dierksen Memorial Hospice, Riverview Behavioral Health, Cowhorn Creek Estates, Curt Green and Company, St. Michael's Hospital, The Retreat at Kenwood, Red River Federal Credit Union, Twin City Rehab and Inspirations, and of course thanks to all of y'all out there for listening, we appreciate it. 43:33 Lisa: You've got some sympathy listening today. 43:35 John: Yep. And I plan on feeling better very soon. And I hope if you're sick out there, you also will get better there. 43:42 Lisa: You get well, Stonewall. 43:43 John: That's right. Bye bye. 43:44 S?: You've been listening to Aging Insight with John Ross and Lisa Shoalmire. Tune in next Saturday at noon for more Aging Insight on KTFS. The preceding program offers general advice. It does not create an attorney-client relationship. Every person's legal situation is unique. You should contact an attorney before taking action on any subjects discussed on this program. [background conversation]