Know who’s preparing your documents, and know what those documents say.


By James Ward

James Ward

While it may seem odd, it happens rather frequently. People come in with their legal documents that were prepared one to 20 years earlier, and the documents were prepared with errors and the people were totally unaware either because they’d never read them, or because they read them and didn’t truly understand them.

In one recent case, the daughter from the husband’s first marriage was supposed to get the large, expensive home, and the son and daughter from the second marriage were to split the more modest home where the couple lived.

The expensive home was transferred to that daughter before the husband died. Then the son from the second marriage quit work to stay at home and provide care for his ailing parents. The father died, and then the son’s sister died, so the mother and son came to me to have everything reviewed.

The documents had been prepared by a non-attorney. Yes, they used a paralegal to save money, but the documents were done wrong and they were facing a disaster because the trust was now irrevocable and the mother couldn’t make the desired changes to correct the mistake. Because the sister had died, the wording of the trust said that the son now had to share the modest home with his half-sister who had already received the large home, and the terms of the trust could not be changed without the cost of proceeding with a court authorized reformation.

The mother was confused, and the son absolutely blew up in a rage and said that he was “going to go after the paralegal who had screwed things up.” Huge problem for the family. The result in the documents was never what the couple had intended.

In a separate case, the couple only had one child who they could rely on as a successor trustee, so the attorney had suggested naming a private fiduciary. The couple agreed to think about it, but they never read their documents to see that that fiduciary had actually been included in their documents by name without their knowledge or permission. They were bewildered as to why the attorney did that, and they wanted it changed.

Part of the mystery of life is we don’t know when someone will die, and therefore we don’t know the order of death. Sometimes there’s a clear indication as when an elder is on hospice and the adult child is extremely healthy, but still, you never know.

One couple in their early 90s seems to come back almost every year for changes. Why? They keep outliving the people they’ve named as their successor trustees and agents. This last time, it was because the first named person found out they had stage four cancer and moved to Texas to be closer to family. What about the other person they had named, who was about 40 years younger and in good health when they named him? Oh, he was hit and killed by a drunk driver. Wow! And this was the third time they had to replace both of the people they had counted on to make decisions for them when they can’t.

First, get your estate planning documents prepared by a qualified attorney, and second, make sure that you understand what the documents say and what takes place following a death or the lack of mental capacity.

And make sure all the names are right! One bank refused to give the husband access to his wife’s substantial bank account because her power of attorney lists him as “Pat,” but his ID shows he’s actually “Patrick.” It’s a serious problem for the family because his wife now has advanced Alzheimer’s and can’t sign any legal documents.

Know who’s preparing your documents, and know what those documents say.