Published in the November 22 – December 5, 2017 issue of Morgan Hill Life

If you get a new roof put on your house, you want it to look nice. But more importantly, you want to ensure it is watertight and can withstand a windstorm. You don’t want leaks, and you don’t want the roof to blow off. You’ll probably know whether the roof works after a few heavy rainstorms and a windstorm or two, but how do you know it’s good before it gets tested with rain and wind?

That takes care of your roof, but what about your estate planning documents? Will they work when you need them? Are they clear? Do you understand what they say? Do they correctly represent your wishes? Is your spouse properly protected? Are your heirs properly protected? Unless you have an experienced estate planning attorney review them carefully, the first real test could reveal they aren’t what you intended or hoped for. By then, it’s usually too late to change.

Most people aren’t aware of the problems lurking inside their legal documents, but things often won’t go as planned when they’re incapacitated or when they die. That’s why I have a constant string of people coming to see me after their spouse or parent has died or become incapacitated. That’s when the problems of past errors come to light.

Anyone can do a living trust, will, power of attorney, or health care directive, but will those documents work and serve the intended purpose when you need them to work for you? Some areas estimate that more than 60 percent of all the probate litigation cases come from Internet-drafted wills and trusts. Why? Because they simply won’t work when they aren’t drafted properly.

I’ve seen families incur huge losses because the incapacitated person used an Internet service for their documents, or they went to a paralegal or insurance person who claimed to be able to prepare documents properly, but the person drafting the documents simply didn’t have the knowledge and experience to know what they were doing. Many people come to me with old trust documents that they thought were prepared by an attorney, but there was really no attorney involved. Businesses and individuals who use terms like “legal services” or “family wealth planners” are frequently trying to give the impression that they are attorneys, or linked to attorneys, but don’t be fooled.

An attorney friend of mine represented a client in a probate litigation case where the people were fighting over an estate worth more than $8 million. The entire outcome hinged on the interpretation of the word “and.” Did it mean only “and,” or could it also mean “or”? It may have seemed minor to the person who drafted the documents, but the outcome of the interpretation was worth more than $8 million.

An experienced estate planning attorney can help you avoid the pitfalls.  You want to make sure that the fee you’re paying will result in documents that will actually work to serve the intended purpose when you need them to work for you and your heirs. Are your documents clear? What happens when the first spouse dies? Are the actions of the surviving spouse restricted? Are assets given away and the surviving spouse has less to use for their own well-being and care? Will your documents allow someone to protect your assets and get you on Medi-Cal if you have to move to the nursing home?

These are real questions and concerns. Most people never discussed these issues when they had their legal documents originally prepared. Make sure your documents were prepared by an experienced estate planning attorney. And make sure you understand how your documents will be interpreted by others.

Jim Ward is a longtime South Valley resident who lives in Morgan Hill. He went to law school in New England and earned a post-graduate law degree in Estate Planning at the University of Miami. Jim worked as an Estate Planning and Elder Law attorney in Florida, and then returned to open his law firm focusing on Estate Planning and Elder Law. He has offices in South Valley and Willow Glen.