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Don McNay

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My Story: Why People Need Wills

Posted: 08/17/11 11:54 AM ET

Everything we got, we got the hard way

-Mary Chapin Carpenter

I've spent my adult life advising people about their money. I've worked closely with many lawyers. I'm extremely knowledgeable about trusts and estate planning and have strong working relationships with experts in both fields.

I have a will. I tell anyone who comes in my door to get one. No matter how old or young, rich or poor, I tell them they need a document that will specify what happens with their assets when they die.

With my background and experience, I should be the last person to be involved in an estate-planning nightmare. But I was when my mother and sister died.

Mom had a brain aneurysm and died unexpectedly on April 2, 2006. She never had a will, and no one ever really worried about it. Her only asset was our childhood home, and my sister and I were her only children. We would split the ownership of the house equally.

Only, things got a lot more complicated after Mom's death.

My sister and her twelve-year-old daughter were living in the house when Mom died. My sister was coming off a period of unemployment in California as a single mother. She had no money. She didn't even have a bank account. She had just gotten a great job at Proctor and Gamble and was getting back on track after her years in California, which had drained her.

I was hit for a lot of estate expenses the moment that Mom died. I paid for her funeral, and I advanced the estate money to pay delinquent property taxes, some outstanding bills, and the mortgage on Mom's house. I couldn't borrow money against Mom's house (it was owned by the estate, not me), so I had to pay the expenses from my personal assets.

My sister and I worked out a deal. When the estate settled, we would get an appraisal and I would buy the house at the appraised cost. After I mortgaged the house, I could get back the money I had advanced to the estate. Her share of the house equity would give her cash to rent the house from me until her daughter graduated from high school. That would give her time to save up and buy the house from me and keep it in the family.

We never wrote anything down, but we trusted each other, and it seemed like a good plan. And it was -- until my sister fell down a flight of steps and died in October 2006. She did not have a will, either.

I knew she had a minor child and an adult son. What I didn't know was that she still had a husband.

She had been married to this man for several years, and her younger child was his. However, she had told us she had divorced him several years earlier. They didn't live together and, for most of that time, she had lived in California and he had lived in Cincinnati.

He came to her funeral, which I had arranged and paid for, and though he said hello, we didn't really talk.

Two days later, he had a lawyer file papers asking that he be named the estate administrator.

I hired a lawyer and found another to represent my nephew (he had a different father), saying that my nephew should administer her estate.

After exhaustive research, it turned out my sister and her husband never filed for divorce. Thus, under Kentucky law, her husband was entitled to half of my sister's estate. My nephew and niece would split the other half.

Since Mom's estate had not settled, it also meant that her estranged husband and his lawyer (after several rounds in court, he and my nephew were named as co-administrators) suddenly became involved in decisions regarding my mother's estate. Also, my niece was a minor, and a guardian ad litem had to be appointed to protect her interest. The guardian ad litem (an attorney appointed by the court) also had to sign off on decisions about Mom's estate.

It was a tedious and expensive mess.

The only way to reach a solution was to put my childhood home on the market. I advanced another chunk of money to get it fixed up for sale. Since the real estate market was dropping, the house was slow to sell, and every time we wanted to change the price, it had to go through the round of lawyers and interested parties for approval. An offer early in 2007 was turned down. That offer turned out to be more than what the house finally sold for in December 2007.

The arguing back and forth caused a riff in the family over very little money. By the time the lawyers and other expenses (I got back the money I advanced) were paid, my share of my mother's estate was a small sum and my sister's estate received the same.

A bill from an attorney came in after Mom's estate had settled. I was so tired of dealing with everything that I paid it myself rather than reopening the estate. Thus, I lost money on the overall process.

The person who got the most money from my mother's estate was my former brother-in-law. My sister's estate received half of Mom's money, and he received half of my sister's estate. My nephew and niece split the other half of her estate.

My mother doted on her grandchildren, especially my sister's children, who had lived with her for part of their childhoods. She would not have wanted my brother-in-law to get that money instead of her grandchildren. And preventing that from happening would have been easy and inexpensive.

My family's series of events was unusual, but unusual things happen every day.

Involving a lawyer would have solved most of the problems. If my sister and, especially, my mother had had simple wills, the process would have been smoother and the money would have gone to the right people. If my sister had actually gotten divorced instead of working out an informal agreement (my brother-in-law was good about paying child support), it would have prevented our post-funeral surprise.

Losing a family member is difficult. It is unfair to ask the people left behind to make decisions and guess at the deceased's intentions. Also, state laws don't always reflect a person's true intentions and have to be honored in the absence of a will providing differently.

I suspect people don't have wills because they don't want to think about death. According to a survey by Findlaw.com, a popular legal website, more than 60 percent of Americans don't have wills. As the Findlaw site notes: "A will is a basic component of estate planning. Among other things, it specifies how your assets will be distributed after you pass away, and who will receive them. Without a will, the laws of the state and the decisions of a probate court may determine how your estate is distributed, who will care for your children if they are minors, and so forth."

In her book Living Richly: Seizing the Potential of Inherited Wealth, Myra Salzer cited a 2003 study of 3,250 wealthy families and said that 70 percent of all wealth transitions fail. I suspect it's because people did not write a will or set up a simple estate plan.

According to the Findlaw survey, only 25 percent of people between twenty-five and thirty-four have a will; fewer than 10 percent of people in the eighteen to twenty-four age bracket have one.

People over fifty are more likely to think about wills. More than half of the people that age have them. As noted, my sixty-seven-year-old mother did not.

I knew someone with terminal cancer who waited until a few days before his death to make a will. He just couldn't deal with it before then. I've been told about another situation where an attorney supposedly had an agreement about what would occur in the event of his death, but when he became terminally ill and waited until the last minute to try to get those partners to confirm the deal in writing, they suddenly had no recollection of any such agreement.

People may think that wills and attorneys are expensive. In the overall scheme of things, they really aren't. I gladly would have paid ten times the average cost for my mother and sister to have had wills. And everyone (but my brother-in-law and the attorneys) would have come out way ahead.

Don McNay, CLU, ChFC, MSFS, CSSC of Richmond Kentucky is an award-winning financial columnist. He is the author of the book, Wealth Without Wall Street: A Main Street Guide to Making Money, which will be released on September 20.

McNay founded McNay Settlement Group, a structured settlement and financial consulting firm, in 1983, and Kentucky Guardianship Administrators LLC in 2000.

McNay has Master's Degrees from Vanderbilt and the American College and is in the Hall of Distinguished Alumni of Eastern Kentucky University. McNay is a Quarter Century member of the Million Dollar Round Table and has four professional designations in the financial services.

 
 
 

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