Fall has arrived. The leaves are falling. Pumpkin is the go-to ingredient. It’s time to indulge in a spooky estate planning tale. No such thing? Maybe you’re right – but there are certainly a couple of spooky probate tales. Don’t believe us? Here is one now. Read on … if you dare.

As the legend goes, Lizzie Borden may have “taken an axe and given her mother forty whacks.” What is known for certain is that her estate did in fact endure a huge whack! Lizzie, who died June 1, 1927, had a Will. However, she seemingly didn’t have a Trust, and the Will wasn’t drafted particularly well.

How do we know?

Lizzie’s Will failed to mention who she intended to inherit her home. Her executor, Charles C. Cook claimed he was the intended recipient. To his dismay, his claim was challenged by Lizzie’s cousin, Grace Hartley Howe, and closest friend, Helen Leighton. According to the Will, the ladies were due to receive the “residue” of Lizzie’s estate, and were certain the home was intended as residue.

The result:

The house would eventually be awarded to Grace and Helen after six long years of probate.

The moral of this ghastly tale is this. If you have considered drafting your own Will, please reconsider. Make certain you consult with and hire a capable estate planning attorney. Be sure all possessions are listed in your Will. Have a Trust drafted, and include all properties in that Trust. If for any reason (refinancing for example), you must remove a property from the Trust, be certain to have it put back. Updating every couple of years will help. Otherwise, your estate could be in choppy condition.

True or false – an estate plan benefits those with less money more than it does the wealthy?

This was the very question asked at a recent networking engagement. Those in attendance included real estate, website design, finance, and legal professionals.

So, how did the professionals do?

Close to two thirds of the room guessed the correct answer. Still, just over a third did not. So which is it, true or false?

It is absolutely true. Estate plans drastically favor those with less money.

How?

Simply put, the wealthy can afford costs associated with probate. Although probate isn’t enjoyable for anyone regardless of their financial standing, the wealthy have the means to weather the storm. Meaning, they have the ability to pay additional costs and taxes accrued on inherited properties, vehicles, moneys, etc.

On the other hand, most middle class people or families simply don’t have as much if any disposable income to pay additional costs (even temporary ones). Therefore it is a very safe assumption those with less will benefit much more by not having amassed extra expenses.

Wait a minute. Where there is an inheritance there is a Will. So why are we talking probate?

Although employing a Will helps make probate proceedings quicker and more efficient, it’s a Trust that is needed to prevent the proceedings altogether.

Think of it this way; being the beneficiary of a Trust means avoiding probate, not accruing additional costs, and being able to receive your inheritance with little wait time. Being the beneficiary of a Will without a Trust means you’re headed for probate; albeit a far simpler, gentler, and quicker probate.

Here is another truth to consider. Waiting months to collect one’s inheritance can greatly inconvenience the wealthy, but having to pay additional and unexpected taxes on that inheritance could cripple the rest of us.

Medi-Cal is yet another area in which having an estate planning attorney could prove beneficial.

Medi-Cal is California’s version of Medicaid, and Medicaid is designed to provide help in paying for long term care expenses.

Although there are many complexities to Medi-Cal planning, it’s important to understand that Medi-cal is there to help families like yours, and Medi-Cal planning is the best way of insuring you receive the benefits which will assure the protection of your hard earned assets.

So, what does any of this have to do with having an estate planning attorney?

An attorney with Medi-Cal experience can assist in the filing of your Medi-Cal application. An estate planning attorney can draft a Trust to protect your personal assets. And an attorney with both sets of skills (like 2014 North County Bar Association President, Debbie Streeter), can accomplish both tasks.

Medi-Cal is a highly complex area of law and changes over time. Costly mistakes can be made if you don’t know what you are doing. Let’s say for example, you are receiving and paying for care in a nursing home. You then decide you need Medi-Cal assistance. You could try figuring it out yourself, but if you make a mistake the result is paying more out of pocket to the nursing home than is necessary. With the same money, you could have hired an attorney who could not only have sped up the process of you receiving your benefits, but also could have assisted you in protecting and holding on to your assets.

Here is the bottom line. People in need of Medi-Cal benefits do not have to be impoverished. They don’t have to give away all of their assets, and can even continue to manage those assets. If you or someone you love is in need of Medi-Cal benefits, please consult with a qualified estate planning attorney.

The Durable Power of Attorney is yet another legal document which can be provided by an estate planning attorney. Although similar to the Limited Power of Attorney, there is one major difference.

The Limited Power of Attorney authorizes another person to act on your behalf for your benefit. This document allows an individual of your choosing to help accomplish tasks, assignments, or transactions in line with a specific purpose.

For example, the individual might make bank deposits, withdraws, write checks, sign tax returns, enter into contracts, or even run your business.

Why is this necessary?

Let’s say you own a home in another state and you wish to sell it. Instead of traveling out of state, you can have someone else fill out the necessary paper work on your behalf. Once the assigned task is completed, the person loses their ability to act as your agent.

That is where the Durable Power of attorney differs. Where the Limited Power of Attorney loses effectively with the completion of a task, the Durable Power of Attorney remains valid until the client dies.

Why in the world would you want that?

Using a different scenario, let’s say someone ran and owned a small business. That person becomes ill and fears relapsing, or even worst, becoming incapacitated. The business owner might wish to have a Durable Power of Attorney. That way, the business owner’s agent can run the business. If the owner improves, he or she can go back to work knowing if things decline, their agent is able to step back in to running the business without conflict or the necessity of court intervention.

Both the Limited Power of Attorney and Durable Power of Attorney are valuable legal documents, which could be of great benefit to the right person in the right situation. If you find yourself in need of either one, or if you want more information, please consult with a qualified estate planning attorney.