Wills and Probate with Jason Salinardi & Garrett Griffin
Wills and Probate Show Notes
One thing is certain: at some point in time, all of us won’t be alive on this Earth. This means that we all need proper estate plans. Many people, however, fail to set their estate plans up correctly, keep them up to date, or even title their assets properly – and as many as 60% of Americans don’t have a plan at all.
That’s why today, we’re diving deep into the very basics of estate planning. I’m joined by Garrett Griffin and Jason Salinardi, Barber Financial Group’s estate planning attorneys. With over 30 years of combined experience, they have expert knowledge in counseling our clients on transition & succession planning, estate freezing techniques, wills and probate, and gifting strategies.
In the first part of our conversation, we discuss what it means to have a will and trust. We dive into will-based planning, how to title assets properly, what probate is, and why it’s so important to have a plan to settle your estate when you’re no longer here – or if you become incapable of making decisions while you’re alive. You can find part two of our conversation here.
In this podcast interview, you’ll learn:
- What a will does and doesn’t control – and situations where a will won’t work to determine where your assets will go.
- What probate is, why banks are not legally in a position to interpret wills, and why it’s so hard for courts to interpret them.
- Why contested and challenged wills are more common than most people think – and how this frequently leads to family conflicts.
- What to do about the fact that there is no standardized, national probate process – and the importance of knowing local laws in your jurisdiction.
- Common scenarios that can lead to lengthy legal procedures after death or illness – and how to protect yourself from them.
- “When it comes to family, harmony, and loved ones, people get close to the vest. Probate court puts everything out there.”
– Jason Salinardi
- “A will only controls a death. In the event of incapacity, a will won’t do anything for you.”
– Jason Salinardi
[00:00:10] Dean: As always, thanks for listening to the Guided Retirement Show. I’m your host, Dean Barber, founder and CEO of Barber Financial Group and I know that there are thousands of podcasts out there to choose from. I appreciate you choosing to listen to the Guided Retirement Show. In this episode, we’re going to begin to touch on the complexities of estate planning. I will be joined by Garrett Griffin and Jason Salinardi, both masters in tax and estate planning attorneys. They’re going to talk and start in today’s episode talking about the very basics of an estate plan. What it means to have a will, what it means to have a trust, and we’re going to really go into diving deep today in the will-based planning and how you title assets properly, what is probate, how does all this work. And I tell you, you know, one thing’s certain. At some point in time, all of us won’t be alive here on this earth and what we’re going to need is we’re going to need a proper estate plan. And what we’re going to learn in the episodes with Garrett Griffin and Jason Salinardi is exactly how important estate planning is as part of your overall guided retirement system. Enjoy.
[00:01:23] Dean: We’re here today with Jason Salinardi and Garrett Griffin and you’re both estate planning attorneys, right?
[00:01:30] Garrett: Correct.
[00:01:31] Jason: Yup.
[00:01:31] Dean: All right. Now, so there’s a lot of jokes about attorneys. You guys ever hear any of those jokes?
[00:01:38] Jason: Occasionally.
[00:01:38] Garrett: Yeah, right.
[00:01:39] Jason: Every once in a while.
[00:01:43] Dean: I think we can start with this whole concept that everybody’s going to die. Everybody’s going to die.
[00:01:48] Garrett: It’s true. It’s a fact.
[00:01:50] Dean: And everybody has an estate, right? Your estate is what you own and what I want to try to do over several different podcasts here is I want to educate people on the benefits of estate planning. So, what that really means to me and you guys can define it for me a little better. Maybe estate planning means to me that I’m going to make a plan to settle my estate when I’m no longer here, but it can also be a plan to handle my estate if I become incapable of making decisions while I’m alive. Would that be an accurate simple definition of an estate plan?
[00:02:33] Jason: Yeah. I think that’s well put. I think if we’re going to bullet point it, I would say there’s incapacity planning is one bullet point. Wealth transfer so transfers, how do you want, where do you want your money to go at your death. Family harmony, which I think oftentimes gets overlooked. And I would think I would say beneficiary protection, protecting your loved ones whether that be your spouse, your children, your grandchildren, either from themselves and because they’re spendthrifts. We could protect them from divorces, bankruptcies, creditors. If there’s special needs, we could protect the governmental benefits for beneficiaries. So, if you take those bullet points, I think all of that goes into developing an estate plan.
[00:03:21] Dean: Okay. Garrett, you got anything different you want to add?
[00:03:22] Garrett: Yeah. I think other than, you know, when you’re identifying and essentially trying to define your estate, I think you’re right. There’s different components of time. You’ve got while you’re still alive and potentially in an incapacitated state. So, you’ve got really what I look at it is you’re attempting to control that estate and so you’re trying to make some provisions where you can control those assets while you’re alive but incapacitated where you’re not able to make those decisions for yourself versus then I think in Jason’s bullet point on the wealth transfer where now you’ve passed and effectively you still want some controlling mechanism on where do those assets go, who are those ultimate beneficiaries, and how are they going to take? And so, I think an element of all of those bullet points is then controlling those decisions.
[00:04:18] Dean: Okay. So, let’s start with the very, very basics then. You’ve seen a lot of television shows kind of you got the nostalgia of they sit down with the attorney. You’re in a big room. It got oak tables and big leather chairs and the lawyer is up there and he’s reading the last will and testament, right?
[00:04:38] Garrett: Right.
[00:04:38] Dean: Okay. So, I think most people will think, well, the will dictates everything. Well, that’s what I need is a will. So, Jason, let’s start with you on the concept of just a will and maybe, Garrett, you can chime in on probate and those types of things. So, let’s address this whole will idea and probate initially.
[00:04:59] Jason: So, a will is a document that will control where your assets go at death. Important thing there, it only controls at death. One of the things we bullet point and talk about is in the event of incapacity. Again, it will only controls at death. So, in the event of incapacity, a will by itself, won’t do anything for you.
[00:05:21] Dean: Now, are there times – let me sip in here. Are there times when a will, will not work? In other words, if you said in my will, I want 50% of my IRA to go to my daughter and I want 50% of my IRA to go to my son, is that all it takes?
[00:05:41] Jason: Well, no. So, it’s getting a little bit more complicated because when you set up an IRA you presumably fill out a beneficiary designation form that said where you want that IRA to go. If you did that, that beneficiary designation form is going to control where the money goes. Not the will.
[00:05:59] Dean: So, it doesn’t matter what the will says.
[00:06:00] Jason: It doesn’t matter what the will says.
[00:06:01] Dean: It’s what the beneficiary wants.
[00:06:02] Jason: Yeah. Now, if and we run across this a lot, sometimes people will set up an IRA on their own maybe without their help because, hey, it’s easy or sometimes people it’s their 401(k) or their 403b at work. You get that stack of paper and you’re supposed to fill this out and you’re like, “I’ll deal the beneficiary form later.” If there is no beneficiary, by default your beneficiaries, the estate, your estate which now your will, will control so that example then it would go to the two children 50/50. Now, again, there’s a lot of issues we could get into the problems with that naming and estate, especially of the beneficiary of any type of IRA, 401(k), because of the tax issues and I know probably another podcast will get into those but…
[00:06:50] Dean: Well, we’ll get into all that stuff in a bit but from a high level, I think people do believe that that will controls and that’s all they need.
[00:06:58] Jason: Right.
[00:06:58] Garrett: And I think the important point is if you can go back to your initial comment about the estate, your estate, in general, is basically everything that you own, but what the will is going to control is your probate estate and so it breaks it down even further. And so, effectively your probate estate is any asset that didn’t have some type of either joint ownership with another individual or some type of a beneficiary designation. And so, ultimately what you start looking at is what does the will control? Well, it’s only your probate estate so it’s only the assets that happen to be in your probate estate. So, for instance, I’ve come across the situation where a client wanted to put some controls and mechanisms over a child and they said, “Well, I’ve got these provisions in the will that they’re only going to get the assets once they turn 25 or turn 30.”
The problem was is all their beneficiary designations were directly to the individual child and when we sit down I said, “Well, your will is only going to control your probate estate, and all those assets that you’ve directed via beneficiary designation that’s not part of your probate estate. It’s a part of your estate but not part of your probate estate.”
[00:08:20] Dean: Okay. So, let’s define this whole… What is probate first of all?
[00:08:25] Garrett: So, effectively, probate is the judicial procedure in which if you have assets that effectively there is either not a joint ownership or there is no beneficiary designation on the asset and that asset becomes part of your probate estate. So, effectively, there’s what they call technically a break in the chain of title. So, whoever’s holding the assets so, for instance, a bank account, the bank sits there and you individually were on the account and now you’ve passed and you didn’t put a beneficiary designation on there. So, the bank is looking at this thing, well, who does this asset go to? And they’re going to be real careful about turning those assets over to someone. And so, hence now this checking account, let’s say, becomes part of your probate estate so you have this break in the chain of title because there’s no mechanism to say where it goes.
[00:09:22] Dean: So, if you had a will that stated my assets are going to be divided 50/50 as an example then would somebody than just present the will to the bank?
[00:09:34] Garrett: No. So, the bank is not going to be in the position to, one, interpret the will and internally they’re going to have their own compliance that says, “You know, we’re going to need some type of a court order, generally speaking, that basically gives us permission to transfer that checking account to one or more individual beneficiaries.”
[00:09:59] Dean: And we’re using the example. You have a checking account, but it can be…
[00:10:02] Garrett: In anything. It could be the car title.
[00:10:06] Dean: It could be a family home.
[00:10:07] Jason: It could be your family home. It could be life insurance policy without…
[00:10:12] Garrett: It could be the IRA that Jason said, “Hey the individual set it up on their own or the 401(k) at work.” It could but they didn’t get those beneficiaries designated.
[00:10:19] Jason: It could be all the stuff in the house, the furniture, the clothing, the artwork. It could be anything.
[00:10:25] Garrett: Cash. Hard cash.
[00:10:26] Jason: Everything starts as your estate and then we start dividing it as a probate estate or non-probate estate is when we start dividing it. And then the will will control the probate estate and to continue Garrett’s example, that bank is going to want something from the courts. Now, we’ve got to start this whole court process to get some out of the authority to go to the bank and then follow the instructions in the will. And that’s where we start getting into the problems while we want to avoid probate because that process, one, is very, very time-consuming.
[00:11:04] Dean: Why is it so hard for the courts to read a will and say this is what’s going to happen?
[00:11:10] Garrett: Well, I think the biggest part of the probate and I kind of look at it as really kind of two phases. The first phase is really giving all the deceased person’s creditors one last bite at the apple. And so, there is a statutory procedure that not only the attorney and the personal representative or executor that they have to follow but that the court is following as well. And so, part of that is putting basically the world on notice, “Hey, this person has passed away,” and if you happen to be a creditor of this person, here’s your last chance to come in and make your claim against if there are some assets in their probate estate so that you get paid. So, that’s kind of part one.
[00:11:55] Dean: Okay. Well, how would the court know if that person had any debt? How do they find that out?
[00:12:01] Garrett: So, the court doesn’t necessarily know. There’s a general publication that just basically, you know, in every jurisdiction, and so we’re on the kind of the border state here between Kansas and Missouri and the rules are just slightly different in terms of how you do that publication, but generally, you’re going to publish a notice in a paper that typically in accounting which the deceased resided, and that general publication goes out and it’s just kind of a notification to everybody, but…
[00:12:31] Dean: So, do creditors then watch that notification?
[00:12:33] Garrett: Some creditors do.
[00:12:34] Jason: And if you have a known creditor, you got to give them notice and then for the unknown creditors, that publication gives them the if you have a claim, here’s what you need to do. Here’s what you have to do to file your claim and here’s your timeframe to do so. And if the known creditor pursuant to the notice or an unknown creditor pursuant to that publication if they don’t file their claim within this these periods then they’re barred.
[00:13:06] Dean: So, that means then they don’t ever have any. They can’t come back and correct?
[00:13:08] Garrett: Right. Correct. And so, in particular, and Jason’s right, when you have that known creditor, the person who is charged with essentially sending out that notice to them is your personal representative or executor. So, I’m going to use those terms. They’re synonymous.
[00:13:26] Dean: So, if you had a will that names the executor.
[00:13:27] Garrett: Yeah. That names the executor or the personal representative inside there. So, then that’s the person who technically is also they’re going to file the will and then the court likely is then part of that process is approving them under that role, and then one of those functions then is sending out those notices to the known creditors.
[00:13:47] Dean: Okay. So, then this sounds like this becomes a very public thing that anybody and everybody can see what your probate estate was. Can they see the part of the estate that was non-probated like the IRAs and things like that?
[00:14:00] Garrett: No.
[00:14:01] Jason: Pretty much anything’s files to court becomes public record so if it’s not filed with the court stays private. So, we talk about one big issue probates the time. The second is privacy and it’s funny, I think people are always very private. It’s hard to say in today with all the social media people are put out everything, but when it becomes to family harmony and loved ones, people then start getting close to the best. Well, going through probate, you’re putting everything out there again.
[00:14:32] Dean: So, how much time are we talking about here in probate court? Is there a given time where it’s got to be settled a certain period or can it drag on for months or years or what are we looking at?
[00:14:44] Garrett: Well, certainly with respect to, I mean, if you have any type of a will contest or any type of litigation with regard to the probate estate, I mean, this could drag out for years.
[00:14:55] Dean: What do you mean a will contest?
[00:14:56] Garrett: So, if somebody came in and challenged the component of the will.
[00:15:00] Dean: Who would do that?
[00:15:02] Garrett: A beneficiary or somebody that got left out.
[00:15:03] Jason: Family. Yeah, it happens a lot where maybe a couple of kids and there’s some estrangement and the parents say, “You know what, we’re going to leave less or nothing to one of the kids.” When something happens and they come and say, “Well, no that’s not…” Either the other child is getting everything. They unduly influence mom and dad to not give me anything or you know what, when they did that, they were having mental problems so they didn’t have the capacity. it happens way more often than people think. So, that could be a will of contest. I mean, I think if everything is all nice and happy, and there’s no will contest, I would say averages a year.
[00:15:44] Dean: Wow. That’s a long time.
[00:15:46] Jason: Well, I mean, probably getting that creditor period is depending upon let’s just call it, well, average, Kansas decides four months, Missouri is six so there’s an average of five months of just this here on this waiting period to see if there’s any claims out there.
[00:16:01] Dean: All right. So, is probate state specific then?
[00:16:04] Jason: It is state-specific and then if anything gets done a county-specific.
[00:16:08] Dean: All right. So, if we have people listen to this podcast all across America, they need to understand what their specific jurisdiction.
[00:16:17] Jason: Because you’re going to have obviously state statutes that govern the process but then each county is going to have their own. I mean just here where we’re at…
[00:16:25] Garrett: The judges effectively have their own local little rules.
[00:16:28] Jason: Yeah. They’re going to have local rules. You’re going to have different forms between counties just because they develop their own forms or they haven’t.
[00:16:35] Dean: Well, that seems crazy that there’s not a uniform probate process.
[00:16:41] Garrett: Yeah. There’s really not. I mean, like Jason said, generally, if you talk about us here in the Metro we’ve got two different state statutes so you got Kansas and Missouri generally that you’re following but then with regard to every particular county, you’re going to have some nuances.
[00:16:56] Dean: For those of you that are listening that don’t know what jurisdiction we’re in, we’re in Kansas City so Kansas City obviously borders both Kansas and Missouri and you get different counties with them both. So, you guys been here on the border. You got to know a lot of different rules with that.
[00:17:12] Jason: Well, it happens all the time. I’ve got multiple probate issues going on right now where I have somebody lives in Kansas. Their residence is on the Kansas side, but they had a lake house on the Missouri side. No planning. So, now I’ve got not only one probate matter, but I have two because I had opened one in a county in Kansas for the real estate there and a separate one in a county in Missouri where the real estate was. So, everywhere you have property if you don’t have the proper planning, you’re going to end up with multiple probates going on.
[00:17:45] Dean: All right. So, you’re saying if everything is lined up, it’s a year.
[00:17:49] Jason: Yeah.
[00:17:49] Dean: What’s my cost to have this whole probate process because I’m sure that the courts aren’t going to work for free and I’ve never met an attorney that works for free so…
[00:18:01] Jason: That doesn’t happen.
[00:18:02] Dean: There’s going to be attorney’s fees in there too. So, what does it cost to take a probate estate through probate?
[00:18:10] Garrett: You know, you’ve got some generalities and I guess I would say 5% is just kind of a rule of thumb. The problem is if I have a $100,000 estate and I’ve got $1 million estate, depending upon what the asset is inside, I may spend as much time on the million dollars as I do on the $100,000. And so, all of a sudden, the percentage flips because I spent just as much time on the $100,000 matter than I did on the million-dollar matter so you run into some of that issue.
[00:18:44] Jason: Yeah. It’s hard to say but it depends, and this is a huge, again, we’re focused on Kansas and Missouri because that’s where we’re at is. Missouri has a statutory fee schedule that the executor and the attorney can automatically, at a minimum.
[00:19:00] Garrett: Yeah. It’s a minimum. Statutory.
[00:19:02] Jason: Now, if you’re over that statutory you have to get court approval, but, I mean, just from minimum on a million-dollar state would be a hefty price tag.
[00:19:12] Dean: And so, your 5% would be, I mean, that’s $50,000.
[00:19:17] Jason: Yeah. And so, it’s just so hard to tell because you also don’t know what family you’re going to do, what the issues are going to come up from the family.
[00:19:26] Dean: Okay. Let’s take a quick break. This is the Guided Retirement Show. I’m Dean Barber. We’ll be right back.
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[00:20:47] Jason: A will is a document that will control where your assets go at death. Important thing there, it only controls at death. One of the things we bullet point talk about is the event of incapacity. Again, it will only controls at death. So, in the event of incapacity, a will by itself won’t do anything for you.
[00:21:22] Dean: We’re back. This is the Guided Retirement Show, a podcast about all things retirement. This is just my curiosity. How many of the attorneys that do the wills actually wind up settling the probate? Or is it generally the attorney that did the will, they’re out of practice because they retire by the time this person dies, and so somebody comes in that didn’t have anything to do with writing the will. They’re now taking it through probate or the kids hire a different attorney. Well, how does that work?
[00:21:53] Jason: It all kind of depends. I mean, I’ve seen it a lot. I mean, I’ve helped the estate and trust administration for a lot of clients that I did it. I think a lot of it depends. I think if the attorney who drafted it is still in practice and still has a relationship with the family, here, she’s going to do it. If they’re out of practice or maybe they lost that relationship, the person representative maybe that’s the kids or whatnot, they probably have their own relationship with an attorney and that’s where they’re going to go to.
[00:22:26] Dean: Does it make a difference?
[00:22:29] Jason: Not a huge difference just because the probate process is so statutory. You don’t have a lot of, there’s not a lot of interpretation of, “Should we do this or should we do that?” It’s you have some options, but you have to – basically, they’re following the will and the procedure. So, there’s not a whole lot. Now, obviously, you want to make sure that whoever it is that they are an estate planning attorney. It’s like if I’ve got a heart issue, I’m not going to a neurologist. I’m going to a cardiologist. You have different specialties in the law just like you do any profession. Make sure whoever you’re using has that expertise in that area. Again, it may cost you not only a lot of money, but it may drag out the process because they’re burning on the job.
[00:23:13] Dean: So, I’m getting a sense that you don’t want, well, this is kind of crazy. So, do attorneys make more money on the probate process than they do on drawing up a will or a trust?
[00:23:29] Garrett: Certainly, they could from a will-based type of plan and I’ve even seen and heard some theories that if you can maintain a relationship, you’re profitably speaking from an attorney standpoint, you’re better off putting the client in a will-based plan because then you get to handle the probate on the backside and there’s, typically, more money you’ll see I think on the probate side than if you’re kind of putting a will-based plan in place.
[00:23:59] Jason: I think if you’re looking at a one-time fee, I set up a plan, I pay one fee, and then there’s the probate which is one fee, yeah, the probate fees you’re going to make more. Now, if you work on a client that sets up a plan and then actually maintains it during their life, my experience is it ends up being about a wash. But the big difference is, and this is going back to where Garrett brought up earlier, is control. Those parents, that client stayed in control of their plan the whole time and they’ve given this wonderful gift for their loved ones is it’s a very easy process their death have to deal with. It’s already, obviously, a very emotional time when you lose a loved one. So, it does not have to deal with all of the probate court and God love us attorneys and all that. It makes it a lot easier for the grieving process. So, there’s that aspect of it.
And the one thing I want to just briefly touch about on the word control is sometimes people and I’m sure, Garrett, he gets this a lot is people will say, “I don’t want to be controlling from the grave,” so they either don’t plan or they don’t give a lot of thought to the plan. I think that’s a glass-half-empty way to look at it. I think the glass half-full is you’re providing guidance even after you’re gone, and making sure that what you worked hard for your life is still going exactly to whom you want and it’s accomplishing the things that you would want to accomplish if something happened there.
[00:25:31] Garrett: Well, I think if you take that concept and then we hear that a lot, “Well, I don’t want to control from the grave,” and I look at it and I say, “Okay. Well, are you concerned about taxes?” Yes, and you want to minimize your taxes while you’re alive. Yes. Okay. Well, what’s the difference in protecting that wealth now while you’re alive versus trying to protect some component of it when you’re gone? There’s a controlling aspect there on both of those. So, do you want to put your wealth in a position where it’s much more at risk of being dissipated either through taxes or some of these other risks that we’re talking about? Great, I guess if you do but it really isn’t usually consistent with what you want to happen while you’re alive. So, I think as we counsel with clients, you kind of put, you try to make those connection points and say, look here, all these various risks that we’re dealing with and here are these controlling components that we can use to handle and deal with those.
And kind of, Dean, to your point and I think control is still even a component of this is that this probate process that we’re talking about because there is no privacy in it, it’s all public record and then the public record that we’re talking about is if you put a will in place, you are spelling out who those beneficiaries are. So, you’re naming the individuals. You’re saying basically what they get and when they get it. And so, all of that information is available for public record. The second component that is available for public record is as part of this process, the personal representative or executor is also filing an inventory. So, they’re basically going down through and saying, “Okay. Now, it’s everything that’s in the probate estate.” Again, so we’re making this line.
[00:27:23] Dean: Something that doesn’t have a beneficiary designation.
[00:27:25] Garrett: Right. So, if we’ve got assets in the probate estate, all those are getting line itemed out with their approximate value and that’s getting filed and that’s also public record. So, now all of a sudden, the control and the risks that Jason was talking about, and a lot of times we’ll say predators, creditors, and divorce are three major risks that beneficiaries assume and predators and creditors are two major ones in this probate proceeding because now you’ve got people who are out fishing and trolling for people who are, you know, beneficiaries. You find, yeah, oh look, here’s a 21-year-old kid that’s about to get $250,000. And so, now you’ve got people that will essentially scheme against them and so these risks then become I think more manifested because now you’ve got everything being filed and everything’s public.
[00:28:23] Dean: Interesting. So, would it be fair to say then that if all you have is a will that you’re pretty much going to guarantee that there’s a portion of your estate that’s going to be probated?
[00:28:34] Garrett: It’s likely. I think generally I think if you see it, I mean, certainly there are ways to plan with a will that will avoid probate.
[00:28:42] Jason: Yeah. I think it’s important to talk. Yeah, I think generally speaking, most likely to just have a will without paying attention to anything else, something’s going to end up in probate. I think it’s important and look, “Okay.” We talked about the IRA right, there’s a beneficiary designation, which would because that beneficiary designation would avoid probate. Well, what other types of ways are there that would keep it, would move it from probate to the non-probate side? I mean, life insurance, again, you have a beneficiary form and if it’s completed. Again, going back to I think Garrett well says that we have a chain in title. We know death proceeds go to this beneficiary.
[00:29:24] Dean: But what about that bank account like you were talking about a little bit ago, Garrett. So, husband and wife, they got a bank account together or husband-and-wife, they got a brokerage account together?
[00:29:35] Garrett: So, in that instance, you’re talking about what’s called joint tenancy. So, that’s where you’re owning an asset with another individual, and there are certainly some pitfalls in doing that. A lot of times you’ll see husband-and-wife. That’s a pretty common one, and not necessarily a pitfall but what happens if one of two things. Common accident kills both husband-and-wife.
[00:30:00] Dean: Or they both get sick within a short period of time and both pass away.
[00:30:03] Garrett: Yeah. One passes and then the other one shortly passes thereafter and now all of a sudden, we’re kind of right back to where we started was now, whoever was the survivor, they’ve passed now and we don’t have a beneficiary.
[00:30:13] Dean: So, now who gets it?
[00:30:14] Garrett: So, now who gets it?
[00:30:15] Dean: And then that’s where that asset thing goes through the probate courts and then the judge ultimately makes the decision of where it’s going to go, and you have that lengthy process and the expensive process.
[00:30:24] Jason: Yeah. The judge isn’t making the decision where it goes. The will is telling the judge where it goes.
[00:30:34] Dean: So, why do we need the judge?
[00:30:35] Garrett: The judge is essentially overseeing the processes. He’s making sure that the statutory components are being followed, that it’s being filed properly.
[00:30:42] Jason: He’s making sure the law is being followed. Or obviously, if there’s a situation where somebody’s contesting that aspect of it. Well, now the judge is going to be the one making the final decision.
[00:30:52] Garrett: And I think maybe just as a slight kind of 50,000-foot-view too on this is that we’ve heavily talking about the wheelbase plan and going through probate. But one other aspect is if you die and you don’t have a will, you’re also going to go through probate. And so, the differences there and they call that dying intestate and the differences are in the wheelbase plan, there’s actually a document to interpret that says, “Okay. Beneficiary is this individual and they get 50% and beneficiary B gets the other 50%.” When you die and you die intestate, and you don’t have that plan, now we go to state statute. So, here again, both Missouri and Kansas and I think about every other state in the US is going to have an intestate statute that says, “Okay. They passed away. They didn’t have a will to direct who those beneficiaries are.”
[00:31:48] Dean: Does that happen very often, by the way?
[00:31:50] Garrett: Well, it happens all the time.
[00:31:51] Jason: All the time. I think, statistically speaking, and maybe Allianz or somebody have done a study that it’s estimated that 60% of American don’t have any plan.
[00:32:06] Dean: Okay. So, I want to wrap up this particular podcast because I think we’ve addressed this whole idea. First of all, everybody’s going to die, okay, and everybody has an estate of some sort. So, this whole idea of doing zero planning is absolutely insane to me because if you don’t have a plan then the court is going to make the plan for you. Is that what you’re saying?
[00:32:35] Garrett: Yeah. The state statute.
[00:32:36] Jason: The state statute has a plan.
[00:32:37] Garrett: The state statute basically has a plan for you. And we use that really almost as sometimes as a little bit of a joke to start some of our seminars.
[00:32:43] Jason: And I’m going to make this take that one because it’s another thing that happens all the time is something happens to someone, right? You lose a loved one. The last thing you want to deal with is the legal aspect and the will, so you sit on it. I’m going to wait. I’ll take care of that later. Well, if the will isn’t submitted to the court within certain time frames, it’s as if the will never existed and we’re right back to intestate. So, in Kansas, you have six months from the date of death. In Missouri, you have a year. So, in six months after the date of death, people think that’s a lot of time. You’re going through the grieving process and all that. Six months comes around quickly.
[00:33:22] Dean: It does, but you said that there was a study done that almost 60% of deaths occur intestate so that they…
[00:33:30] Garrett: Not necessarily intestate, but I think certainly with an outdated plan of some sort, but I think Jason’s right. I think, statistically, you see 60% don’t have some type of plan in place.
[00:33:42] Dean: Wow. They’re probably all guys because we’re all invincible.
[00:33:48] Jason: Right. And then I think they even built on top of that, and I think it even rose to 80% that it’s either an outdated or no plan. So, you only got 20% of the population who have a plan that is going to probably be effective and that’s actually what they want and how many times do we sit down with clients and they walk in and even if it’s a wheelbase plan and they sit down and they say, “Well, here’s what I have and here’s what I think it says,” and you sit down and you go, “Well, that’s not the way I would read this.”
[00:34:21] Jason: I would say my experience the most common example is after someone had the first child they realized, okay, I need to get something in place because if something happens who’s going to take care of the child? Then maybe they update it when they have a second child, but then usually the next time they update it, they’re getting ready to retire and you’re talking about a plan that’s 20, 30, 40 years old.
[00:34:44] Garrett: Yeah. They got grandkids now.
[00:34:45] Jason: They got grandkids or something and obviously just life happens. So much has changed but also there’s a lot of legal changes in that 30, 40 years.
[00:34:54] Dean: All right. That was some basic information on the importance of getting the estate plan together. It blows my mind how so many people just ignore this aspect of their life. You can always find links to this episode show in the notes and the giveaways are all in the show description. You can visit us at GuidedRetirementShow.com/8. Don’t forget to hit subscribe to this podcast. Share it with all of your friends. This is information that will help everybody have a better retirement. This is the Guided Retirement Show.
Investment advisory service is offered through Barber Financial Group, an SEC-registered investment advisor.
Investment advisory services offered through Barber Financial Group, Inc., an SEC Registered Investment Adviser.
The views expressed represent the opinion of Barber Financial Group an SEC Registered Investment Advisor. Information provided is for illustrative purposes only and does not constitute investment, tax, or legal advice. Barber Financial Group does not accept any liability for the use of the information discussed. Consult with a qualified financial, legal, or tax professional prior to taking any action.