Make sure you’re dealing with an experienced estate planning attorney, make sure you understand your plan documents, and make sure your attorney is working in your best interest.

By Jim Ward

James Ward

Some experts estimate that fewer than 10 percent of people have an estate plan that includes a will, trust, durable power of attorney, and advance health care directive. That’s a lot of people who aren’t prepared. That’s a lot of families who might be harmed due to the lack of having proper legal documents in place for their protection.

If your assets have to go through probate, that takes time, and it can be costly. To avoid probate, it takes more than just a will. A will means that your assets will go through probate.

But that’s only after your death. How do we take care of you if you’re incapacitated? A will doesn’t help with that. A will has no legal effect until the moment of death. In contrast, a trust is effective as soon as it’s signed.

Not too long ago, I heard of a local man who died and had about eight properties. The attorney had done a will for the client, but not a trust. The result? All the properties had to go through probate, and the attorney made a small fortune on doing the probate work. The attorney would have earned very little if the client had a good trust in place. Did the attorney act in his client’s best interest?

Just this week, I had a similar case. The decedent had assets valued at more than $5 million. The attorney prepared a will, but no trust. The estate will likely pay about $150,000 in fees that could have been avoided, and the attorney will likely pocket more than half of that amount.

If the decedent would have paid $3,000 to $5,000 for a trust, his family could have saved a huge expense — but then the attorney would have earned a lot less. Did the attorney act in his client’s best interest? Was the attorney even knowledgeable about estate planning?

We see a lot of bad estate plans and bad trusts. Make sure you’re dealing with an experienced estate planning attorney, make sure you understand your plan documents, and make sure your attorney is working in your best interest. A proper estate plan is not a simple project. People who tell you it’s simple just want your money, and you’re likely to be harmed because they don’t know what they’re doing. I’ve seen it happen often. Don’t be fooled.

What about your power of attorney? Is it “elder law friendly”? What does that mean?

If your power of attorney isn’t “elder law friendly,” it may not work to protect your assets and have you gain eligibility for Medi-Cal to pay for someone to provide care for you at home, or for Medi-Cal to pay for nursing home care. Not having the proper power of attorney can cost your family hundreds of thousands of dollars.

What about your health care directive? Who will make your health care decisions?

This is also true when thinking about guardians as well as successor agents and trustees. It’s unwise to name only one person such as a spouse or trusted child.

What if that person cannot act because they’ve moved away or are incapacitated or even deceased? What happens then?

If you want to protect yourself and your family, and protect your assets as well, make sure you get a proper plan by an experienced estate planning attorney who specializes in estate planning and elder law.

Don’t take a chance. Don’t try to save a few dollars and then end up losing hundreds of thousands of dollars unnecessarily.

Don’t be penny wise and pound foolish. Plan properly, and plan now.

James Ward 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.