Your Estate . . . with James Ward – How to ensure your wishes all work out for you and your loved ones

Published in the September 19 – October 2, 2018 issue of Gilroy Life

I recently read about a family who found themselves in a difficult situation because they hadn’t taken the time to plan ahead, get professional advice, and have the proper legal documents put in place.

Most people have heard about disastrous family outcomes whether in their own families or in the families of friends or co-workers.

It happens all the time and we hear about the house going to the wrong person or the kids who have been absent for 30-plus years suddenly inheriting from the deceased parent who hadn’t planned properly. The same goes for people who let their estate go to the nursing home through lack of knowledge about what can be done, and lack of preparedness in getting the right legal documents put in place to protect themselves and their family.

In the family I read about recently, the daughter who was fighting the fraud in the family simply said, “I never paid attention to getting the right documents put in place. I thought it would just all work out.”

Really? Just all work out? Like some sort of magic?

It reminded me of the brother and sister who came to me after their mother died following a 10-year stay in the nursing home. The adult children were expecting to sell the house and use that money for their own retirement, but I had to advise them that the state would take the house under the rules of estate recovery. They told me that their mother’s attorney had told them the state would just take a percentage. I agreed, but I had to inform them that, in their case, the percentage was 100 percent! Wow. Bad result.

It came as a horrible shock to the children who were expecting, and counting on, receiving several hundred thousand dollars each as their tax-free inheritance from mom.

It was a simple case of not investigating and not knowing that their mother’s attorney did not practice elder law or Medi-Cal planning. They sat back thinking that “everything would all just work out,” and now they have to tighten their belts considerably in their own retirement. That wasn’t how they or mom had envisioned their future.

How do you know whether you or your parents have a good plan in place? You start by working with a qualified attorney, and you make sure that it’s an attorney who’s dedicated primarily to estate planning and elder law. Were the documents prepared by an attorney? Does the attorney know the Medi-Cal rules that will pertain to you and your assets? Do you know how the documents will be interpreted after death?

We don’t have the power of a magic wand to improve your health or increase your wealth, but we work to protect whatever you have now, and to make sure that your wishes regarding the use and final distribution of your assets can be followed.

I just met with a client who came in about his mother’s trust. The father died a few months ago and several of the kids had made the decision to sell their mother’s rental house and distribute the proceeds. One even wanted to sell mom’s main house and distribute that money too — despite the fact that mom was still living there on her own and doing OK. Really? Where would mom live? If the proceeds from selling both houses are distributed to the kids, where’s the money to take care of mom? Why are they trying to grab the money now? We often see greed following death, but this was one of those cases where some of the kids wanted their inheritance now even though the parent was still living.

Make sure you have the right documents in place, and that you have the right person named to be making decisions for you. If you don’t know how the documents will be interpreted following your incapacitation or death, get a qualified professional to review them with you.

James 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.