Last Will and Testament
- A Last Will and Testament is a document prepared to distribute your assets after you die.
- All estate debts and taxes must first be paid before distribution of assets can be made.
- To be valid a will must be signed by you in the presence of two disinterested witnesses.
- A will contest is typically not based upon an objection to how you distributed your assets, but as to whether you were competent or under duress when you signed it.
- You name an Executor to handle the probate of the will and the distribution of assets.
- You can avoid probate of real estate by owning real estate with any other person as “joint tenants with right of survivorship”
- Life insurance, an IRA, a 401(K), or other assets where a beneficiary is named, do not pass pursuant through the terms of the Will, but go directly to the beneficiary named.
- A will may be revoked at any time, as long as you are mentally competent.
- If you die without a will, then your estate passes pursuant to the law of intestate succession as determined under Ohio law.
Durable General Power of Attorney
• A “general” Power of Attorney is a legal document which gives the person you designate the power to manage your assets and financial and legal affairs while you are alive. The document must be signed by you while you have the required legal capacity to state your wishes. The appointment may be for a fixed period and can be revoked by you at any time providing you still have the legal capacity to do so. A power of attorney ceases when you die. A “durable” power of attorney stays valid even if you become unable to handle your own affairs (incapacitated).
• You may also choose to make this document a “springing” power of attorney. In this case the document is drafted and signed now, but it only becomes effective when a named event (defined in the document) occurs. The named event could be if you are unconscious or in a coma, or if you have been determined to be incompetent.
Health Care Power of Attorney
• This is a document, signed by you designating a person to make health care decisions for you should you be unable to make such decisions. An alternate can also be named. If you were to become incapacitated and unable to make decisions concerning your health care, you can appoint the person you want to make these decisions.
• A Living Will is a document that specifies whether you would like to be kept on artificial life support if you become permanently unconscious or are otherwise dying and unable to speak for yourself … as well as the procedures or treatments that you may or may not want to have. A Living Will contains instructions for your doctor and for the holder of your Health Care Power of Attorney.
• A Living Will is different from a Health Care Power of Attorney in which you appoint a person to make decisions for you. A Living Will becomes the written proof of the details of the specific wishes that you would like to have followed.
• Anatomical Gifts can be Included in the Living Will: The Ohio Donor Registry gives all Ohioans the opportunity to make a personal decision concerning donation, and it is a way to legally give consent for the anatomical gift of your organs or other parts of your body upon your death … for any purposes authorized by law. The Registry also allows you the opportunity to indicate restrictions or specifications to your anatomical gift. The system is maintained by the Ohio Bureau of Motor Vehicles and access is limited to the donation professionals at Ohio’s organ, tissue and eye recovery agencies. It is not available to doctors, hospitals and EMTs. The Registry is used only at the time of death to confirm the wishes of the deceased for donation. If you decide to make an anatomical gift, we would tailor the document to meet your “exact” wishes.
Appointment of Representative for Disposition of Bodily Remains, Funeral Arrangements, and Burial or Cremation Goods and Services
• This is a specific legal document in which you voluntarily make a written declaration assigning to a representative the right to control the disposition of your body after you death including the right to determine the location, manner, and conditions of the disposition of your bodily remains. This also assigns the right to make arrangements for your funeral including the right to determine the location and conditions of your funeral, burial, cremation, or other manner of final disposition. You may appoint a representative and a successor, in case the representative is not available.
Mental Health Declaration
•Under Ohio law (ORC 2135.02) an adult who has the capacity to consent to mental health treatment decisions voluntarily may execute at any time a declaration governing the use or continuation, or the withholding or withdrawal, of mental health treatment. The declaration may include a designation by the declarant of a person to act as a proxy to make decisions regarding mental health treatment pursuant to the declaration. The declarant may name in the declaration a physician and assign the physician the primary responsibility for the declarant’s mental health treatment. The declaration may include a specific authorization for the use or continuation, or the withholding or withdrawal, of mental health treatment.
Probate of Estates and Estate Administration
• Probate is a legal process for gathering together the assets of a deceased person (decedent) at his/her death, paying creditors, expenses and taxes, and distributing the assets in accordance with his/her Will or under Ohio law if there is no Will.
• The probate of a decedent’s estate would occur in the county within the state in which he/she was residing at death. There may be property owned outside the state of the decedent’s residence which also would have to be handled in some legal proceeding.
• The probate process typically requires the appointment of person to handle the administration of the estate. If named in the Will, the person is called an Executor. If no Will, or if the person is not named in the Will, the person is called an Administrator. The executor or administrator could be an individual, a bank or a trust company.
• The probate court supervises the work of the executor or administrator throughout the process, which could take anywhere from a few months to a year or two.
• NOTE: If property is designated as non-probate, it would not pass pursuant to the terms listed in the Will. Property that is non-probate property would be property for which a beneficiary or beneficiaries are named (such as joint tenants with rights of survivorship: payable on death provisions- POD, transfer on death provisions– TOD, or when beneficiaries are named on life insurance, retirement plans, etc.). The property would pass directly to the named person…outside out the probate process.
• Certain individuals have rights to contest a Will if they believe that there is a legal basis. The individuals who would have standing to file a Will contest would be any person named in a prior Will or any person who would inherit if there were no Will (next of kin). Grounds for a Will contest could include fraud, forgery, undue influence, or lack of testamentary capacity.
• Final tax returns, for income or estate tax, may need to be filed. Ohio Estate tax was abolished as of January 1, 2013.
• A Guardianship of the Person and a separate Guardianship of the Estate (property) are each viable options for the person who needs assistance in caring for themselves personally or in financial or legal decision making. Although a guardianship can be a positive approach to use, it can also be an expensive and burdensome court process that a person “might” want to avoid if the appropriate decisions can be made in a timely manner. There are numerous alternative to guardianship that can be considered if proper planning is done.
Domestic Partnership Agreements
•Domestic Partnership Agreement can be created for non-married partners. This is a legally enforceable “partnership” agreement that can provide for joint ownership of property, as well as division of debts, assets and obligations. In essence two persons in a relationship jointly draft a partnership agreement and enter into it for the purpose of making provisions for their personal and real property, and any and all other property rights, responsibilities and obligations which may arise during their relationship as well as upon the termination of the relationship.
•Ohio Revised Code 2717.01 states:
(A) A person desiring a change of name may file an application in the probate court of the county in which the person resides. The application shall set forth that the applicant has been a bonafide resident of that county for at least one year prior to the filing of the application, the cause for which the change of name is sought, and the requested new name. Notice of the application shall be given once by publication in a newspaper of general circulation in the county at least thirty days before the hearing on the application. The notice shall set forth the court in which the application was filed, the case number, and the date and time of the hearing. Upon proof that proper notice was given and that the facts set forth in the application show reasonable and proper cause for changing the name of the applicant, the court may order the change of name.
(B) An application for change of name may be made on behalf of a minor by either of the minor’s parents, a legal guardian, or a guardian ad litem. When application is made on behalf of a minor, in addition to the notice and proof required pursuant to division (A) of this section, the consent of both living, legal parents of the minor shall be filed, or notice of the hearing shall be given to the parent or parents not consenting by certified mail, return receipt requested. If there is no known father of the minor, the notice shall be given to the person who the mother of the minor alleges to be the father. If no father is so alleged, or if either parent or the address of either parent is unknown, notice pursuant to division (A) of this section shall be sufficient as to the father or parent.
Any additional notice required by this division may be waived in writing by any person entitled to the notice.
“Revocable” Trusts and Trust Administration
• A revocable trust is created when a person (settlor, grantor) gives property to another person or entity (trustee) to hold and manage property for one or more persons (beneficiaries).
• A trust can be created for a multitude of reasons, but there are some well recognized reasons for establishing trusts:
- Trusts can avoid probate or to simplify estate management at death
- Trusts can be ideal for creating a fund to provide for a minor child, an elderly parent, a disabled person or someone who needs assistance with handling of money and management of financial affairs.
- Trusts can be useful for making gifts to charities or for charitable purposes.
• Contrary to popular belief, creating a living trust and transferring assets into that trust does not avoid estate taxes (state or federal).
• The advantages of a trust can include privacy, freedom from probate court involvement, lower administration costs at death, and efficient transfer of assets (particularly in other states).
• The disadvantages of a trust could be higher costs to establish, trustee fees, and lack of court supervision. • A trust can provide some usefulness during a person’s life by creating a structure for management of assets. Assets in a living trust are not protected from creditors.
• Assets in a living trust are countable resources and will disqualify a person from Medicaid.
• NOTE: Irrevocable Trusts offer estate tax savings by keeping property out of a person’s taxable estate. Irrevocable Trusts are not used frequently, but sometimes they are used in conjunction with a life insurance policy to keep life insurance proceeds out of a person’s taxable estate.
Every person faces unique legal and financial challenges as one ages. These challenges can include not only decisions as to retirement and finances, but also decisions as to how to plan for personal care, support and end of life decisions. Traditional family networks may not be present due to the death of a spouse or partner or due to the lack of children. For some people this lack of a family support system may be due to personal choice or family lifestyle conflicts. Friends and neighbors often provide the assistance that many seniors need. Even if a senior person has financial security in the senior years, care still needs to be taken to make sure that other more personal wishes are in place and followed. Proper personal, legal and financial planning can increase a person’s chances for the best retirement possible and for the best quality of life as one ages. This could include decisions that might relate to disability as one ages as well as planning for the eventual death that every person must face. Proper planning will allow one to prepare for the inevitable. Retirement income, health insurance, Medicaid or Medicare issues, life insurance, final wishes regarding funerals or cremation, Wills and Trusts…all of these are only some of the issues that should be addressed if proper planning is to occur.