Avoiding the Pitfalls of Probate with a San Jose Estate Planning Attorney

With regard to estate planning, when individuals fail to plan, they plan to fail. When someone dies, his or her assets automatically become part of the estate, which is then distributed according to the decedent’s will.

Probate is the system through which a court determines whether a will is legally valid before the inheritances it covers can be given out. The probate process encompasses more than just proving the validity of a will. It includes the entire administrative process, including determination of the decedent’s total assets, paying debts, liabilities and taxes — and the distribution of remaining assets to beneficiaries. In effect, probate is the process that enables the beneficiaries to receive property that is rightfully theirs.

However, if no will is left, state law determines the relatives who should receive the assets. Structuring financial affairs with the assistance of an estate planning attorney will help avoid probate costs. The administration of an estate is a technical process that requires strong legal knowledge as well as the consideration of possibly complex family dynamics.

It’s wise to hire a skilled and effective estate planning attorney to help before running into any legal issues, such as the scenarios listed here:

Estate Litigation

Please be aware of the fact that estate litigation is common and may arise. It’s one of the fastest growing areas of the law. Once the assets in a will are made known, creditors, tax collectors, heirs, and other parties may suddenly want to have a say in the way the funds of the deceased are disbursed.

Contested Wills

Contested wills oftentimes create a legal issue. The interpretation of wills is a very intricate and complex area of law. A will can be opposed or contested on the grounds that the document is void due to the incapacity of the testator at the time the will was made; the failure to comply with the formalities required by law, or any matter sufficient may show the nonexistence of a valid will.


Guardianship challenges may occur as well. Conflicts over the care of minor children, or, in some cases, legal wards of the deceased, are some of the most emotional disputes that can occur during probate.

Jim Ward is an experienced estate planning attorney with offices in San Jose and the South Bay area. If you are an executor of an estate, or simply have questions about how probate works, seek knowledgeable legal counsel from Jim today.





Medi-Cal Attorney

How Do You Learn About Medi-Cal Benefits?

As an estate planning and elder law attorney, I’m frequently confronted with clients who have been misinformed about the law. This is particularly true regarding Medi-Cal and the coverage of nursing home costs. Conflicting information results in confusion. It also sometimes results in lack of action or taking the wrong action. Make sure you’re talking to someone who really knows the current law.

There are attorneys, Medi-Cal “consultants” and insurance salespeople who pass on erroneous information to clients. This can be extremely harmful. I recently read a published column by an insurance agent who stated that “the loophole that some people used to try to hide assets in order to qualify for Medicaid (Medi-Cal) was closed by the Deficit Reduction Act.” That’s true in most states, but the DRA 2005, which became law in early 2006, has still not yet been adopted in California. Anyone who tells you otherwise simply doesn’t know the law in California.

(Also, if you do things lawfully, you aren’t “hiding” anything at all. That’s ridiculous. Hiding assets will get you charged with Medi-Cal fraud. Following the law is a safer bet.)

One client of mine recently called me after she met with the investment professional at her bank, and she informed me that the investment professional had warned her about trying to get Medi-Cal to pay for her mother’s nursing home expenses “because there is a 60 month look-back period that will mess everything up.”  My response was, “Well, that investment professional must be working in Texas, because that certainly isn’t the law in California.”

These people will also frequently warn about estate recovery and how the government can get back all of the benefits at a later date. That simply isn’t true with proper planning. Don’t be scared away from doing the right thing by people misleading you with false information.

One of the easiest ways to see that an “expert” doesn’t know what they’re talking about is to discuss the look-back period for transfer penalties. I frequently see literature or a website quoting a 36 month or 60 month period. If you see that, don’t make an appointment to see the person, or get up and walk out if you’re already in their office. That isn’t the law in California.

Medi-Cal is a confusing area of the law, and many people take advantage of seniors’ lack of understanding of the Medi-Cal laws to sell them overpriced products and consulting services. CANHR (California Advocates for Nursing Home Reform, a non-profit organization) fights against elder financial abuse and this type of misinformation. CANHR states that the prices for these non-attorney consulting services to “pre-qualify” seniors for Medi-Cal generally ranges from $5,000 to $20,000, and the products being sold generate large commissions. They state that “the prices for these services are typically two-thirds higher than what a licensed estate planning attorney would charge.”

I’ve seen it in my own practice. One client came to me when her son discovered that she had paid for Medi-Cal “consulting” from some insurance people who were currently being sued for selling nearly worthless products to other seniors. She had already paid thousands of dollars in consulting fees to these people, and she wanted to get that money back. Another “consultant” told the client that the consultant “could handle it all, and there was no need to go see an attorney.”  The result was that the man was charged several thousand dollars more than an attorney would have charged.

Protect yourself. Use a licensed attorney who is knowledgeable about Medi-Cal and works with the Medi-Cal regulations on a regular basis.

Elder Law — Dementia and the Importance of Durable Power of Attorney

The Alzheimer’s Association strongly advises beginning legal plans if you or a loved one has been diagnosed with Dementia or Alzheimer’s disease. Dementia is a general term that refers to a cluster of symptoms such as the loss of memory, problems with communicating, and loss of other intellectual abilities serious enough to disrupt everyday life. Alzheimer’s disease is the most common form of dementia. Once a person is diagnosed with early dementia it is important that a family member, domestic partner, or friend assist the person in making legal plans. Legal planning includes making plans for health care and long-term care coverage, making plans for finances and property, and naming another person to make decisions on behalf of the person with dementia – and the planning needs to take place before the dementia becomes too severe.

A Durable Power of Attorney is a legal document that allows a person with dementia (called the principal) to name another individual (called an attorney-in-fact or agent), to make financial and other decisions for the principal. The person appointed is oftentimes a trusted family member, domestic partner, or close friend.

There are several areas that can create costly problems if you do not have a proper Durable Power of Attorney in place designating an Agent to act on your behalf during any period of incapacity. Conflicts can arise with real estate property, retirement benefits, estate and asset protection, and healthcare decision-making. On average, guardianship proceedings take months and can be quite costly in that they involve court filing fees, attorney fees, physician’s fees and court reporter fees. A well-drafted Durable Power of Attorney will give your Agent the authority to act on your behalf and to protect your physical well being as well as the financial well being of you and your family.

As essential as Durable Power of Attorney is, it faces new—and continuing—obstacles. Disruptions in the financial services industry as well as recent scams and frauds make it imperative for individuals to consult with a law attorney that can aid in creating a plan that not only provides financial protection for their family, but also ensures planning for their future.

Of importance, an attorney can explain what makes a Durable Power of Attorney “elder law friendly”. Many documents in existence today do not meet the potential needs of elder clients. These should be replaced with “elder law friendly” documents. As an elder law attorney, Jim Ward can assist in navigating the many variables associated with a Durable Power of Attorney. For example, whom can you trust as an agent? What powers should be included? When does the document take effect? When is a Durable Power of Attorney valid?

Jim Ward is an experienced elder law attorney who has offices in San Jose and South Valley. If you or a loved one has been diagnosed with Dementia or Alzheimer’s, proper legal planning is critical to avoiding financial hardship and emotional distress. Take the time to call Jim for a free initial consultation today.

Elder Law Attorney Talks About Caregiving

Along with the increased number of the people in our society, the amount of caregivers in demand is expected to increase two-fold.

As people reach their mid-70s, nearly half will experience physical problems that will likely result in limited mobility or a decreased ability to care for themselves. They’re going to need help, but the challenging part is that there’s no job tougher or more demanding than that of a caregiver. Oftentimes, caregivers become emotionally or physically drained. The job of a caregiver can oftentimes result in anxiety, depression, loneliness or illness. This is true with professional caregivers as well as family member caregivers.

With a majority of California households requiring a second income, families often can’t take the time off to care for their parents. Because of this, it’s more than likely that most California families will need to hire someone from outside of the family. Usually, this will come in the form of an assisted living facility or in-home care. This can include anything from assistance with shopping and transportation to cooking meals, housekeeping or bathing.

Since a large number of households feel the weight of the responsibility of taking care of family members, it’s important to put a plan in place. The purpose of a plan is to help the “main” caregiver. Since caregivers are in danger of a breakdown when not given a break, family relationships are at stake. Unfortunately, it’s not uncommon for the process of caregiving to tear a family apart.

When families take the time to divide tasks into the categories of time, money, and labor — everyone can share the responsibility. Additionally, I recommend holding family meetings either in-person or by phone to discuss the condition of a loved-one or to re-negotiate the core responsibilities.

At The Law Offices of James A. Ward, we walk families through the process of caregiving. Our specialty is estate planning and Medi-Cal planning, and we help to establish asset protection plans both for a crisis situation and also long before any loved ones fall ill or are in need of care.

Don’t hesitate to call us today for a free assessment, 1-800-JIM-WARD.

Elder Law – How an Elder Lawyer Can Help to Save Aging Parents’ Finances

San Jose Elder Law

For baby boomers moving into retirement and their golden years, times can be tough. Adult children are becoming caregivers and some are relied on to provide financial support for their parents and in-laws.

Statistics show that a little more than 32 percent of adult children chip in to help their parents out. And more than 75 percent of those that gave financial support to their parents wonder if their generosity will have an impact on their own financial situation in the future.

With the lagging economy we have seen, decreasing home values, investments that have gone bad, and savings that have been torn apart. Health care costs are climbing, and with most California households requiring a dual income, many cannot keep up.

“An experienced elder law attorney can help to preserve assets, as well as connect people with government benefits and resources to create a contingency plan that addresses possible changes in family health or finances,” said attorney Jim Ward of The Law Office of James A. Ward.

Doing the right thing by your parents is the main priority, however not being fully aware of the legal implications of this could possibly lead to lost Medi-Cal eligibility or negative tax consequences.

As an elder law attorney, Jim Ward can help mitigate these pitfalls. Consulting with Jim or someone who has the right knowledge in this area should be the main priority. Relying on advice from financial advisers or others that do not know the law is not a good idea when putting together a game plan for aging parents.

Jim Ward is an experienced elder law attorney who has offices in San Jose and South Valley. Consulting with an elder law attorney is critical at the outset of the beginning stages of retirement and when any sign of poor health or dementia comes into play. Take the time to call Jim for a free initial consultation today.