Probate, Estates and Elder Law

Do I need an attorney to draft a living will?
Not necessarily. A person does not need to have an attorney to complete a living will. The current living will and corresponding health care power of attorney form accepted in Ohio are fairly easy to complete. Because they are legal documents, these advance directives need to be properly executed and witnessed and an attorney may be necessary if the person does not fully understand the content. If you have questions during the process of completing and executing a living will or health care power of attorney, seeking the advice of a probate attorney will ensure your wishes are clearly documented. Living wills and health care powers of attorney are frequently included during estate planning with a probate attorney.
Are there any unique considerations regarding living wills in Ohio?
Yes, the living will is authorized by statute and the laws of the various states regarding living wills may be very different. A fairly recent change to living will declarations in Ohio is the addition of the anatomical gift option (planning to donate organs or tissue after death). While it may also be the case in other states, public policy prevents the person whom you designate to make decisions to withdraw medication and/or treatment that provides you comfort or alleviates pain, unless specified by you in the living will. There are also limitations regarding living will decisions affecting a pregnant woman. In any state, if you want life support discontinued when you are terminally ill or permanently unconscious, be sure to designate someone under your living will who will follow your wishes.
Does a living will ever expire? How often do I need to update the document?
No, a living will does not expire; the prototype form specifically states so. It can, however, be changed or revoked. There may be several reasons to update the document. For example, if you change your mind about who should be authorized to make decisions for you or what those decisions should be, then you need to change your living will. Also, if the law changes or you move to another state, you might want to review what changes, if any, are necessary.
What is a living trust and how would I know if a living trust is right for my estate?
Many times people with larger estates can benefit from having a living trust (also known as intervivos trust). Setting up a living trust means you (the grantor) must establish the trust and then choose assets to “fund” the trust, allowing you access to funds during your lifetime and specifying how you’d like the assets to be distributed, by your trustee, to your heirs after your death. Assets held in trust are considered private and are generally not subject to oversight by the probate court although new Ohio Trust Code does give the probate court jurisdiction over intervivos trusts. Assets that may be owned by a living trust are varied and can include savings accounts, stocks, bonds, real estate, life insurance, and personal property. Because the Trust is controlled by the Trustee, which may be you or a named successor, that person or company can carry out your wishes when you're not able to. Depending on your estate and plans for your heirs after your death, you can request that assets held in trust be distributed over time, allowing remaining funds to grow in value over the years and providing more protection for your heirs. Trusts may not be appropriate for every estate based on the work they require over your lifetime and fees that may be regularly incurred by the trust. Consult with a probate/estate planning attorney for advice about whether setting up a living trust is appropriate for you.
Is a living trust the only way to plan for assets to avoid probate?
First of all, avoiding probate isn’t always the right decision for every estate. Sometimes, having the probate court oversee your executor and final wishes can be beneficial. If the avoidance of probate is appropriate, estate planning techniques like joint tenancy, life insurance policies, in-trust-for bank accounts (also known as Totten Trusts), individual retirement plans, pensions or Keogh accounts might be helpful. Basically, these financial planning methods allow you to designate payable-on-death beneficiaries to the accounts or property, typically allowing heirs to receive control of the funds or property more quickly, more privately, and less expensively than if they’d been distributed through a will and probate court. These and other methods can be researched by an estate planner or probate attorney for their appropriateness to your plans and assets.
Is it possible to be sure my dog is cared and provided for after my death?
Yes, a pet can protected, as part of Ohio law, by preparing a “pet trust” before your death. A probate attorney can assist you with the creation of this trust. A trustee must be selected to manage the trust upon your death along with a caregiver for your pet. Sometimes these are the same person but some thought should be given to whether it is appropriate to have separate people provide oversight of your pet’s well-being. Next, you should determine what amount you will need to fund the trust by calculating the expenses your pet requires, an estimate of veterinary costs, its life expectancy, and possibly a sum for burial or cremation expenses. Calculating expenses for a dog or cat with life expectancies of about 10-18 years is far different than calculating expenses for a parrot that can often live to be 80 years old. If there are no people that you trust to care for your pet if you are gone, there are several groups and humane societies that provide permanent lifelong care or temporary care until adoption.