Published in the January 17 – 30, 2018 issue of Morgan Hill Life
Cases frequently come through my door when someone has died unexpectedly in their 40s or 50s from some freak accident or even from a heart attack, stroke, or other medical issue that came on suddenly and resulted in death. Due to the urgency of the medical issues at hand, people generally aren’t worried about estate planning issues because the immediate health concerns are more pressing. This is certainly understandable.
But what about people who are older or who have known health issues? It shouldn’t surprise anyone that at some point we’ll all die. We don’t know when that will happen, but every day we get closer to that day. Yes, perhaps not a great thought, but it’s reality. And part of that reality is being prepared — prepared so that others can legally care for you, and prepared so that your wishes can be carried out both during your life and after your death.
There are two main categories of unfortunate events in the estate planning world. One is when a person dies or becomes incapacitated and has no legal documents in place to name people to be in charge of making decisions for them or carrying out their wishes following their death, and the other is when a person has old legal documents in place that are legally binding, but the documents do not represent their current wishes due to changed circumstances or relationships.
Two clients recently updated their trusts because of major changes in their lives. One gentleman had a fixed percentage earmarked for a certain charity, but his assets has grown so much in value the amount going to that charity far exceeded his wishes for the charity. Among other changes he wanted to make, he redistributed the percentage of assets to different charities and family members so that the new distribution made more sense to him.
In another case, a woman had done all of her planning based upon the assumption that she would die before her partner, but then the partner died first and left her a substantial amount of money. My client had to redo her trust to make sure that she was providing for the people she wanted to provide for as well as the people her partner had wanted to provide for.
Those are two examples where the people made changes to their plans while they were still able to do so, but I also had two recent cases where the person was failing fast, and still waited, and then they took a turn for the worse and passed away before they could implement their plans. In one case, I met with the man at the nursing home on a Monday evening and he was doing okay, but his doctor told us that he was failing and that we had to act fast. We had documents ready for him to sign before noon the next day, but he had slipped into unconsciousness during the night and couldn’t sign anything. He passed away without ever gaining consciousness, and now his estate will go to the very people he didn’t want to get it.
Unfortunately, we never know when we’ll die or when we’ll lose the ability to sign new documents, so make sure that you’ve protected yourself and your loved ones by having the proper legal documents in place at all times.
Jim Ward is a longtime South Valley resident who lives in Morgan Hill. He went to law school in New England and obtained a post-graduate law degree in Estate Planning at the University of Miami. Jim worked in Florida, then returned to open his own law firm focusing on both Estate Planning and Elder Law. He maintains an office in South Valley and in Willow Glen.
