Home Deeds, Wills, Trusts, and Powers of Attorney Can Lead to Disaster

Before I became a lawyer, I thought I could do things myself and not have to pay exorbitant attorney fees. I am now educated enough to know that attorneys are trained to help you execute your legal documents correctly. The fee you pay is much cheaper than doing it yourself and receiving unexpected tax or inheritance consequences. Here are some examples.

Transfer ownership to children or make children co-owners. I had a client whose parents had put his and his sister’s names on a property the parents already owned as joint tenants. The idea was that the children would inherit without a will when the parents died. They inherited without the need for an order of probate, and because they were children, there was no increase in taxes when the parents died. But when my sister died, my client suffered a large increase in property taxes because she and her sister were not the original purchasers and a transfer between sisters, even as joint owners, is not exempt from reassessment. The cost of the annual tax increase could have been avoided by consulting a lawyer before they took matters into their own hands and added the children to the deed.

“Friends” advised a lady to put her only son in the title of her house as joint owner to avoid probate and not have to make a trust. After she transferred the house to her son, her son was in a drunk driving accident, was sued and had a judgment against him and his property, which included the house. Mom lost the house because she tried to avoid probate in the cheapest way.

record deed. Sometimes clients want to avoid the relatively small fee the attorney charges to draft and file a deed for them. I had a lady sit on the deed and she never registered it for 25 years because she didn’t want to pay the lawyer $250. That meant her trust was unfunded (nothing was put into it) and, had she died, her estate would have gone through probate, even with a trust, because she never “funded” the trust. An unfunded trust is not a valid trust.

Another client tried to draft, execute, and record the trust financing deed on his own. When he tried it three times and the recorder rejected it each time, he came back to me to get it right. The time and effort it takes to keep doing it wrong is not worth a few hundred dollars. At least the Registrar informed the man that the act was improper. He could have recorded it, and after the client’s death, the trustee could have discovered that it was not a valid deed and been forced to file a Heggstad petition with probate court at significantly more cost than letting the attorney do it in the first place.

A couple had 8 properties and they insisted that they would search all the properties themselves instead of paying me $250 each to do it for them. Three years later, they still hadn’t, and their trust was still unfunded. Result: the trust I made for them is still not valid. If they died today, their estate would go through probate, even though they spent a couple thousand dollars running the trust.

Finally, another client failed to ensure that her out-of-state niece signed and notarized the deed of grant transferring the property to her estate, so it was not in her estate when she died. Result: The client did not legally own the property and the heirs were out of luck.

Durable power of attorney that does not include proper powers. I often see powers granted from an online form that do not include the power to revoke, amend, or terminate trusts. Of course, the client wants to be able to amend the trust and has no authority to do so. I see many do-it-yourself forms that are called “limited powers” but the space where limited power is indicated is left blank. Result: power is not limited. Finally, the DIY forms you find on the internet don’t tell you how to sign as “proxy” and I’ve seen people get in trouble for simply signing the principal’s name and thinking they were signing properly as proxy when in fact they were committing forgery.

Having a lawyer draw up a full power of attorney and giving the principal proper warnings about the incredible power they are entrusting to the agent is by far the safest and ultimately the cheapest way to obtain these important and essential documents.

Execute an advance health care directive on a standard form that does not include your particular wishes or exceptions. Although these forms are convenient, I like to make sure my clients have thought through and decided on their wishes for life-sustaining treatment, so the agent doesn’t have to guess and follow the principal’s stated wishes. The standard forms do not have options for possible wishes that a client might prefer, so I attach the client’s wishes to my advance health care directives.

The reason I’m in estate planning is to help people. However, I prefer to help people create good planning documents that avoid the problems that can arise from poor planning by an amateur rather than a professional. My advice is: don’t try to do the estate planning documents yourself. The money you save by letting a qualified attorney prepare your estate plan is yours! And it can be a significant savings!

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