Downriver Estate Planning Lawyer…gone bad.

Unfortunately, when somebody is looking for an estate planning or elder law attorney in the Dearborn or Downriver area, it can be difficult to identify a quality estate planning attorney from an attorney who doesn’t quite meet the “quality” standard, or practices criminal law on Monday, family law on Tuesday, and estate planning on Wednesday.

This was driven home the other week, when a friend referred one of her friends to The Elder Care Firm. Let’s call the new client “Sandy.” We scheduled a consultation with Sandy and we reviewed her previous plans and went over some new goals.

Sadly, Sandy has stage 4 cancer and wanted to make sure that her assets were going to avoid probate upon her death. Also, she has a son who has fallen on hard times and is estranged from the family. Part of the plan that we suggested for Sandy was an asset protection trust that would be created upon Sandy’s death for her son. Someone else would manage the money for her son, and the money would be protected.

Most of Sandy’s net worth (essentially all of it) is invested in real estate properties. Her goals included having her real estate properties transferred into the trust upon her death, which would then in turn sell the properties and deposit the cash into the asset protection trust for her son.

A few years prior to her consultation with the Elder Care Firm, Sandy visited another Downriver attorney who called himself an estate planner. Sandy was going into surgery and wanted to make sure her real estate did not go into probate if she died during the surgery. This attorney suggested adding her son onto her properties with a quit claim deed. The reason for suggesting this was that son was the only one of Sandy’s children who was local, and it was before the son had fallen on hard times and became estranged from the family. In general, the expert estate planning attorneys at The Elder Care Firm advise against owning property as joint tenants, unless the joint tenancy is held by a married couple. See previous blog

Typically, even when clients have made mistakes such as this, we can still unwind them and fix the problem. However, this case was different. When Sandy’s previous attorney drafted the quit claim deeds, he made Sandy joint tenants with her son with “full rights of survivorship.”

A joint tenancy “with full rights of survivorship” is a unique joint life estate with dual contingent remainders that cannot be destroyed. What this means is, Sandy’s son received an interest in the properties that cannot be removed from him unless he willingly gives them up. Also, full rights of survivorship means that when one of the joint tenants dies, the other joint owner takes possession of the entire property.

Attorneys that do not specifically practice in estate planning sometimes draft this type of deed without knowing the consequences.

In order to take ownership away from the son and put the properties into Sandy’s new trust we would have to get the son to sign off on new deeds that essentially take away his rights to the property that he jointly owns with Sandy. The only other way to do so is through the court system, which is expensive as well as time consuming. Sandy’s son refuses to give up his rights to the properties and sign the new deeds.

The result that we are most likely facing is that son will receive the properties outright after Sandy’s death. The purpose of the trust was to place restrictions on and protect the the son’s inheritance. Now, the likely result is that son will not only receive his inheritance not in the trust (with the restrictions), but his other siblings will not be beneficiaries on the properties, and therefore receive relatively nothing (most of Sandy’s estate consists of her properties). This was clearly not the result that Sandy wanted.

While this story was about a Downriver law attorney, it could be about any attorney in Southeast Michigan, Wayne County, Livingston County, Washtenaw County, Oakland County or other surrounding communities.  Any attorney can say they do estate planning or elder law, but how can you tell a “quality” elder law attorney from a run-of-the-mill general practitioner.

Not All Estate Planning Law Attorneys are Created Equal.

Attorneys can put together slick marketing and reports on estate planning.  We have some nice reports.  But just because an attorney has a report on a subject, doesn’t mean they are an expert or that they even wrote the report in the first place.  Maybe that attorney is great at marketing, that doesn’t mean they are a great estate planning attorney.

Is Your Attorney a Certified Elder Law Attorney?

There is really only one “gold standard” in estate planning and elder law.  That is the Certified Elder Law Attorney (CELA) designation.  The National Elder Law Foundation is the only national certifying program for elder law and special needs planning in the nation and is approved by the American Bar Association.

The National Elder Law Foundation first certified elder law attorneys in 1994, and now over 20+ years later there are over 400 CELAs across the nation.  There is only 17 in the State of Michigan and only one in Livingston County, including Brighton, Howell, Hartland and the surrounding areas.

Why Work with a Michigan Certified Elder Law Attorney (CELA)?

It’s important to work with a Certified Elder Law Attorney because when you’re working with a Michigan Certified Elder Law Attorney you know you’re working with the cream of the crop when it comes to elder law.  Think of CELAs as the top 1% of estate planning and elder law and estate planning attorneys.

You have the confidence of working with an elder law attorney who has completed a rigorous full day examination and demonstrated that their law practice is actually focused on estate planning and elder law.  Once certified, your Certified Elder Law Attorney must continue to practice primarily elder law and complete continuing education specifically targeted to advanced practitioners.

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