This week I met Tim who is disabled.  Tim's aunt Magaret wanted to ensure her estate was properly managed after her passing. She had a special wish: to leave her home to her beloved, disabled nephew, Tim. Margaret, wanting to save some money, decided to have her estate plan prepared by a notary instead of an experienced estate planning attorney.

Margaret met with the notary, who helped her draft a trust. However, the notary did not transfer Margaret's home to the trust; and although the trust left everything to Tim, since nothing was in the trust everything will have to go through probate and go to Margaret's siblings.  Had the trust been properly funded it would have gone to Tim.  But even if that happened, the way the trust was written it would cause Tim to lose his SSI and Medi-Cal benefits.  The notary also failed to provide a Will for Margaret who was unaware of the complexities involved and trusted that the Notary knew what they were doing.

Sadly, when Margaret passed away and her family began to settle her estate, they discovered the home was not in the trust. This meant that the property would have to go through probate, a lengthy and costly legal process. To make matters worse, because Margaret had received Medi-Cal benefits, her estate was subject to Medi-Cal recovery. This meant that the state could claim a substantial portion of her estate to recover the costs of her medical care.

Margaret's family was devastated. Not only would the home go through probate, but the Medi-Cal recovery process would likely leave very little, if anything, for her family. Tim, her disabled nephew, was left with nothing from the estate, contrary to Margaret's wishes.

The Differences Between a Notary and an Estate Planning Attorney

Margaret's story highlights the importance of understanding the differences between a notary and an experienced estate planning attorney.

Notary Public:

·         Role: A notary public is a state-appointed official who witnesses the signing of important documents, verifies the identities of signatories, and ensures the legality of the documents involved

·         Qualifications: Becoming a notary typically requires a short training course and passing a state exam. The process varies by state but generally involves less rigorous education and training compared to becoming an attorney

·         Scope of Work: Notaries can handle document notarization, witnessing signatures, administering oaths, and certifying copies. They do not provide legal advice or represent clients in court

Estate Planning Attorney:

·         Role: An estate planning attorney is a legal professional who specializes in creating comprehensive estate plans, providing legal advice, and representing clients in legal matters related to their estates

·         Qualifications: Becoming an attorney requires obtaining a bachelor's degree, completing three years of law school, and passing the bar exam. Attorneys must also complete continuing education to stay current with legal developments

·         Scope of Work: Attorneys can draft legal documents, provide tailored legal advice, represent clients in court, and handle complex legal matters. They are well-versed in strategies to avoid probate and protect assets from Medi-Cal recovery