Will? Trust? Original Documents? with a Gilroy Estate Planning Attorney

Do you have a Will or do you have a Trust? Which is better for you? Do you have your original documents, or are they stored at the attorney’s office?

A local man died few years ago and he owned 16 pieces of property here in South Valley. But he had no Trust. Why? His attorney had prepared a Will for him, but why wasn’t there a Trust? The man’s estate likely paid more than $150,000 in probate fees that largely could have been avoided if he had a Trust. His attorney collected a huge fee that could also have been avoided. That money could have stayed in the family.

If you have a Will, the assets pass through probate. The process is slow, costly, and is open to the public. Having your property held in a Trust avoids probate, so the assets pass to your heirs faster and at a lower cost. Having a proper Trust will also allow your family to avoid having to open a Conservatorship for you if you are incapacitated and unable to handle your own affairs.

The main reasons why people don’t have Trusts are 1) procrastination, and 2) lack of knowledge. A good Trust will protect you during your own life, and provide protection for your heirs as well.

A client came to me last week with two of her daughters, and she wanted a Trust. She had tried to get the Trust done about 10 or 12 years ago, but despite several requests for a Trust, her attorney refused to prepare a Trust and told her that she would be fine with only a Will. Really? She owns two pieces of choice real estate in our area, and they’re valued at close to $2 million. A Will has no legal effect until the moment of death, so the Will would not have provided any protection for her during her lifetime, and then her two properties would have had to pass though probate following her death. The approximate probate fees if she were to die today would be about $66,000.

The woman and her daughters apologized for not bringing the original Will for me to review, but that was because the attorney had kept the original Will. Really? That’s an old attorney trick so that the family has to contact the attorney after the person dies, and then the attorney has the opportunity to make a lot more money from the estate of the deceased person. Don’t let that happen to you or your family. Keep the signed, original documents in your possession. If you’re afraid that you might lose them, keep them in a safe deposit box at the bank and give copies to some trusted people. Your attorney should keep copies, but you should hold the originals.

In the case of the woman who came in with two of her daughters, they were hoping that they would never need to present that original of the old Will, because they didn’t want to have to return to that attorney’s office. We didn’t need the old Will to establish a new Trust and pour-over Will, along with the Durable Power of Attorney and Advance Healthcare Directives, so the family was fine to move ahead and get things done as the mother wanted.

If you have real estate, or if you have assets worth more than $150,000, you should have a good Trust and the other documents that go along with it… especially the Durable Power of Attorney and the Advance Healthcare Directives. The correct “package” of legal documents will allow the trusted people you appoint to make the decisions to legally care for you, and it will allow your estate to pass your assets to your heirs with fewer problems. . . . Get it done!






Estate Planning Attorney – Do You Have the Right Durable Power of Attorney?

What is a Power of Attorney? Sometimes it’s called a Financial Power of Attorney. It’s a document that gives authority to your named Agent to act for you in various situations. That may be paying your bills, accessing your bank accounts, closing your accounts, or even selling your residence. Thorough power of attorney documents give considerable authority to your appointed Agent, so you need to make sure that you have named a trusted person to act as your Agent.

Have you named a successor Agent? Maybe you have named your spouse or your oldest child as your Agent, but what if that person cannot act for you. Have you named an alternate? Is your power of attorney a “durable” power of attorney? If it is durable, this means that your Agent can act for you even if you are incapacitated. Generally, you want the document to be durable, and you want to appoint an alternate Agent so that you are better protected.

Is your power of attorney “springing,” “conditional,” or “immediate”? Both springing and conditional powers of attorney have been outlawed in some states due to the problems that they can create, but I often see them being used by attorneys who are not familiar with those issues. If a person is being scammed or making bad decisions, and they have a springing power of attorney that requires one or two doctors to state that the person cannot handle their own affairs, the big question is whether doctors will be willing to sign such statements, or whether the person can avoid going to the doctor so that there is no diagnosis of dementia, or whether they can fool the doctor during a five minute visit so that the doctor thinks the person is still okay to handle their own affairs.

Is your power of attorney elder law friendly? An example of the importance of this is whether your Agent can get you onto government benefits such as Medi-Cal if you need assistance at home or you want Medi-Cal to pay for your nursing home costs. It’s not just a matter of the application, but also allowing transfers and reclassification of assets for eligibility for those benefits and protection against the state placing a lien on those assets. These are critical issues for many elders, and the lack of a power of attorney, or having the wrong power of attorney, can prohibit your family from taking the necessary actions to protect you and your loved ones.

I have seen many individuals and families face financial hardship because a proper power of attorney was not in place. Getting a good power of attorney is not difficult. Not having the right one in place when you need it can be devastating.

Every adult should have the right kind of power of attorney in place and have the best Agent and successor Agent available to take action to help them. It’s one of the most important documents that a person can have. If you don’t have a durable power of attorney in place, get one. If you have one, make sure that it is detailed enough to allow your Agent to take the necessary actions that may be needed to protect you, to care for you, and to protect your assets.



Elder Law Attorney: What is Elder Abuse?

California Welfare and Institutions Code 15610.07 WIC — Elder abuse.

(a) “Abuse of an elder or a dependent adult” means any of

the following:

(1) Physical abuse, neglect, abandonment, isolation, abduction, or

other treatment with resulting physical harm or pain or mental suffering.

(2) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.

(3) Financial abuse, as defined in Section 15610.30.


I had originally planned to write something different for this article, but this morning I received a call from an attorney friend who was trying to help his aunt. The aunt is in her late 90s and has had advanced Alzheimer’s for a number of years. She doesn’t live locally, but my friend knows that she has enough income to pay for her apartment rent, utilities, and food. It turns out that the aunt had to be hospitalized because a grandson was physically beating her. The hospital reported the abuse and it became public. Several family members had been living with the aunt because she was the “golden goose” with her income, and they could live there for free and use her money to buy food. Other family members didn’t report the known abuse because they didn’t want to lose their golden goose. The physical abuse is certainly elder abuse, and the case likely involves financial abuse as well because the aunt’s income was being used to support several other people to her detriment.

The first step in these cases is generally to call the Adult Protective Services (APS) office in the county where the elder resides. They have the resources and trained personnel to handle these cases. Our tax dollars support this, and the people are there to protect our elders. Some people are mandatory reporters, but anyone can report what they suspect is elder abuse. The person reporting what they suspect as elder abuse can provide their name and contact information, or they can simply remain anonymous. The people at APS are there to try and protect the elder. If you suspect that an elder is being abused, whether it’s physical abuse or financial abuse, you should report it.

Elder financial abuse is categorized into criminal elder financial abuse and civil elder financial abuse. Theft, embezzlement, forgery, and fraud are criminal elder financial abuse. The civil elder financial abuse involves taking the elder’s personal or real property for wrongful use or with intent to defraud, or both. It also includes assisting in the taking, secreting, appropriating, obtaining, or retaining the assets of an elder for wrongful use or with intent to defraud, or both, and it also encompasses acts of undue influence, which is defined as excessive persuasion that results in inequity.

I had a recent case where a son moved into his father’s big house and hadn’t paid rent in two years, so the 94 year old father, who was living in a very old, one bedroom house together with his caregiver friend, was deprived of the rental income he needed to pay for food and medicine. The son was supposed to pay his father’s utilities, but the gas and electricity had been cut off once, the water department had threatened to cut off his water, and the son had refused to pay for his father’s land line telephone, so it was cut off too. The son was taking his father’s income and only giving the father $300 a month to live on, which was not even enough to provide food for the father and his caregiver.

Don’t let these things happen to someone you know. You should report elder abuse if you suspect it, and you can report it anonymously if you wish. The California Bar publishes a good informational pamphlet that can be found at the site below.