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The Comprehensive Guide to Ohio Estate Planning

October 22, 2018 by Port Legal Staff


Within this comprehensive guide, you will find advice on estate planning, including wills, trusts, life care planning, as well as ways to avoid probate in the state of Ohio.Quick links:

Estate Planning

5 Questions to Ask Your Estate Planning Attorney

1. What is a "Trust," "Will," "Guardianship," "Conservatorship," ect?

Estate planning is a complicated area of the law, and people tend to not like to think about. This means that most of the time when you start the estate planning process, you don't know very much about the terminology and the different options available to you

This means if you have questions on a particular aspect, when you ask, it is well explained. Even better, they explain it before you even ask, even if it is a quick overview or definition.

2. How Long Does the Estate Planning Process Take?

There is no set answer for this question, and that should be sort of what your estate planning attorney of choice will tell you. Some people can hammer out their last wishes in a few hours while others will take a few weeks.

The key is that you want to create a plan that clearly spells out your wishes as well as keeps the estate as whole as possible for your beneficiaries. This means that you want to avoid probate and as many estate taxes as possible.

3. What is Your Experience with Estate Law?

For personal injury lawyers, it is okay if they handle a wide variety of accidents and different injuries because while worker's compensation and a bus accident may be slightly different, legally, they are still pretty similar.

However, when choosing an estate planning attorney, you want them to be experienced in estate planning law. Ideally, it should be one of their few areas of practice and they should be able to go over their experience in doing so.

4. How Do I Make Adjustments to My Estate?

This question is more of a way of testing the waters in how your lawyer operates. Some attorneys will offer an annual review of the estate to keep it up to date.

This is fairly important because of law and tax changes that can happen. However, if your lawyer doesn't schedule these updates, it may not be a deal breaker for you. You will just have to remember to make an appointment to update your estate.

Free Online Estate Planning App5. How to Avoid Probate?

This final question is one you should ask every estate planning attorney. This question and the way they answer will give you a pretty clear picture of whether they have your best interests in mind or they just want their paycheck.

So what is the answer you are looking for?

The best answer would be to steer you towards a living trust that would allow most assets to bypass probate. If they simply suggest a will, then that will still need to go through probate, which means they will collect lawyer fees for representing it.

An Easy Checklist to getting a loved one’s (or your) affairs in Order Before Passing

1. Complete Your Estate Plan

icon image - Elder Care Law - colorWhether you have a large estate or feel your assets are small enough to be managed by your loved ones, an estate plan is vital to getting your affairs in order before passing.

A properly drafted estate plan, whether you opt for a will or a living trust, includes provisions of how and to whom you want your assets distributed. A smart estate plan can also cover: guardianship of children or pets, mental incompetence and your wishes on funeral arrangements, burial or cremation, etc.

These are difficult subjects that we often avoid discussing, but an estate plan is important so your wishes are respected and the burden made easier for your friends and family.

2. Get Life Insurance

Life insurance makes certain that your spouse or children are not left in dire financial straits should you pass. Not sure how much life insurance you need?

Try for at least ten times your annual income if possible. If life insurance is out of reach for whatever reason, be sure to set aside savings for your loved ones.

Whether it is for your spouse or children, any money you save is money that can help them pay for bills, a home, college, weddings, and so much more on the event of your passing.

3. Put All Important Documents in One Location

Your important documents, also known as your Estate Information packet, need to be in a safe location that won’t be easily stolen or damaged by fire or water. Make sure someone close to you, like a spouse or child, that you trust knows where this information is located.

6 Estate Planning Mistakes You Should Avoid

1. Thinking You Don't Need a Will

A will is a very special document that holds the final wishes of someone who can no longer speak for himself. Unlike all your other financial and asset arrangements, only the will has the power to make certain decisions for you as to what is done and how your assets are managed.


Even if you have a living trust, only a will can name guardians for your children. So, even where a trust exists, it is vital to have a pour over will in place.


2. Not Updating Your Estate Plan

Whether you write your estate plan on your own or with the help of an attorney, it must be updated and revisited.

Life happens and more than likely your assets change with it. An outdated estate plan will not be able to accurately address your new life circumstances and will at best leave new assets in limbo and at worst could cut new family members out of inheritance.

At minimum, update your will and your trust if:

  • Your marital status changes
  • You have a new child
  • A beneficiary passes away
  • You acquire significant new assets

3. Rushing or Procrastinating

If you put your estate plan together in a rush without taking the time to consider every asset, possibility, and way to make things easier for your family, you are likely to miss something crucial.

Estate planning should take time of careful research and well thought plans to make sure you don't forget anything.

However, the other extreme is also bad news. Procrastinating your estate planning is a good way to leave your family completely unprepared.

If you die without an estate plan, the state will give all your assets to your most immediate next of kin with no consideration for your wishes or personal relationships.

4. Believing Your Estate Is Too Small

Often, I've spoken with clients who believed they only needed a will. They arrived to this conclusion because they believed that their estate was too small for a trust to make sense for them.

However, estate planning does not depend on how much you have. Rather, it's about how you can best manage what you do have.

Though, your net worth may provide an indication of the type of estate plan that is most appropriate for you, it does not indicate that you should not properly plan.

5. Believing You Are Too Young to Start Now

I've also spoken to many clients who believe estate planning is something you tackle later in life. It's important to plan for the unexpected, no matter your age.

If you're over the age of 18, you should seriously consider having an estate plan. Estate planning becomes especially important when you become a parent. Just like life insurance, a proper estate plan can care for your loved ones if an unexpected passing were to occur.

6. Not Planning for Incompetence

Though the common perception is that estate planning is only planning for your passing, your estate plan should have provisions if you were to become mentally incompetent.costly, but a proper estate plan can avoid this problem.

Probate guardianship proceedings for a mentally incompetent adult can prove to be costly, but a proper estate plan can avoid this problem. 

Free Online Estate Planning App

Life Care Planning

Is Life Care Planning the Best Solution for you or your loved one?

Life Care Planning is a new approach to law that is elder-centered, ensuring that families are able to respond to challenges created by illness or disability in an elderly loved one.

A Life Care Plan will include at least one of the following:

  • Legal Services
  • Care Coordination
  • Client Advocacy
  • Medicare and Insurance Support

An interdisciplinary team will work together to identify any care needs, current or future, that might arise. From there, the team will create a plan that will ensure that appropriate care will be available as each need arises. This grants families peace of mind and gets elderly people the care they need as soon as they need it.

Your Life Care Planning Team will determine where the elder in question falls on the Elder Care Continuum and enact the appropriate plan at the appropriate time.”

Lifecare planning Highlighted Text-02

What’s Life Care Planning?

“There are three primary tenants of Life Care Planning; these include:

Ensure appropriate care— Whether it’s at their home or in a residential facility, it’s important that your loved one is getting the care they need to maintain their desired quality of life.

Handle cost of care— If you’ve looked into paying for long-term care for a loved one, you probably know that the cost is not insignificant. Life Care Planning will help you find both public and private sources to pay for your loved one’s long-term care, so you won’t be overwhelmed by the ever-growing cost.

Preserving peace of mind— Ultimately, you want to know that your aging loved one is well cared for and happy. Having a plan in place to ensure that they’re getting the care they need will offer peace of mind like nothing else.”

5 Questions You Should Be Asking An Elder Care Attorney

What is a "Trust," "Will," "Guardianship," "Conservatorship," ect?

Estate planning is a complicated area of the law, and people tend to not like to think about. This means that most of the time when you start the estate planning process, you don't know very much about the terminology and the different options available to you

This means if you have questions on a particular aspect, when you ask, it is well explained. Even better, they explain it before you even ask, even if it is a quick overview or definition.

1. How Long Does the Estate Planning Process Take?

There is no set answer for this question, and that should be sort of what your estate planning attorney of choice will tell you. Some people can hammer out their last wishes in a few hours while others will take a few weeks.

The key is that you want to create a plan that clearly spells out your wishes as well as keeps the estate as whole as possible for your beneficiaries. This means that you want to avoid probate and as many estate taxes as possible.

2. What is Your Experience with Estate Law?

For personal injury lawyers, it is okay if they handle a wide variety of accidents and different injuries because while worker's compensation and a bus accident may be slightly different, legally, they are still pretty similar.

However, when choosing an estate planning attorney, you want them to be experienced in estate planning law. Ideally, it should be one of their few areas of practice and they should be able to go over their experience in doing so.

Free Legal Consultation with an Elder Care Attorney

3. How Do I Make Adjustments to My Estate?

This question is more of a way of testing the waters in how your lawyer operates. Some attorneys will offer an annual review of the estate to keep it up to date.

This is fairly important because of law and tax changes that can happen. However, if your lawyer doesn't schedule these updates, it may not be a deal breaker for you. You will just have to remember to make an appointment to update your estate.

4. How to Avoid Probate?

This final question is one you should ask every estate planning attorney. This question and the way they answer will give you a pretty clear picture of whether they have your best interests in mind or they just want their paycheck.

5. So what is the answer you are looking for?

The best answer would be to steer you towards a living trust that would allow most assets to bypass probate. If they simply suggest a will, then that will still need to go through probate, which means they will collect lawyer fees for representing it.

How do you obtain a Power of Attorney for your elderly parents

1876435-1Since it is better to become power of attorney before your parents need you to make all of their decisions, you should start a conversation about your concern for them as they age.

This can be a quite uncomfortable and complicated conversation. They can decide what powers they want you to have (if any), as well as any other possible situations which may arise. You should use this time to talk to them about their living situation as they age, as well as their thoughts on living wills (which gives medical providers guidance on end of life issues.) You should do your best to make the decisions that they would if they could.”

“While you should try to give a copy to everyone that you think will need it, there are going to be times when you need to make a quick decision at the last minute. Your copy will allow you to step up when needed.

While no one really wants to think about his or her parents aging and struggling, the truth is, that for most of us, it will happen. There will come a time when your parents will need to lean on you more and more.”

3 Reasons You Should Consider an Elder Care Law Attorney

  1. You’re getting a specialist. Their practice concerns explicitly legal matters unique to elders. Elder law matters, the state recognizes it, and its laws are quite specific, and their administration may differ from one state to another. You need a lawyer to interpret these rules. Elder law attorneys apply their legal knowledge and practice to the benefit of their clients, the seniors. The lawyer addresses their concerns and safeguards their needs from a legal point of view. They identify anything or anyone that goes contrary to the statutory requirements and deal with it accordingly.
  2. You’re getting a lawyer with experience. Elder care attorneys help prepare and validate all documents addressing legal concerns or with legal implications. They deal with the fine print on various processes and formalities such as Medicaid applications, legally validating the details in wills and trusts among other things that may bring contention.
  3. You’re getting a counselor. Lawyers also help resolve complicated family issues and financial matters. They evaluate assets their ownership and inheritance issues. They address concerns as specific and complex as multiple businesses and real-estate assets in different states and legal jurisdictions. They sort out matters concerning second marriages, divorce, children or the lack thereof and the benefits and care they lay claim to, bereavement, incapacitation and other special needs. Legal counsel also helps you deal with other professionals and individuals that play significant roles in a senior’s life like their doctors, caregivers in nursing homes and former employers.

How To Prepare When a Loved One is in Hospice or Palliative Care

Avoiding Probate

What is Probate?

Who is the next of kin in probate and what is the reading of the will?

Who Are Next of Kin?

Next of kin in Ohio are specified by law.  The law has many levels of kin, and where one level has no members, the next level benefits.

The first level is surviving spouse where all of the children of the decedent are also of the surviving spouse. If not, the children from prior relationships are included in this first level.

Where there is no surviving spouse, the next level is children of the deceased.  If any of the children are deceased, their children take in their place.

If there are no kin in the first two levels, then the deceased’s parents inherit. If no parents, siblings of full or half blood.  If no siblings, then lineal descendants of the grandparents.

Next, if there are no blood relatives as defined, then to step-children.  Finally, if there are no kin in the last level, then the money escheats to the State of Ohio general fund.  Escheat is a latin word meaning “to fall.”

Reading the Will

Despite what the movies and legend may imply, no court requires a reading of the will to the next of kin. However, once the will is submitted for probate, it does become a part of the public record. Interested parties can review it at the courthouse where it was filed.

It is recommended that executors, administrators and probate attorneys meet with expectant beneficiaries to share the contents of a will and to explain its operation. This will ensure that there are no surprises.”

A General Overview of Probate Court in Ohio

What is Probate Court?

To handle the assets of a person after death, Ohio requires that in the absence of a trust agreement, the next of kin (if there is no will) or the named executor (if there is a will) go through probate court. The term probate comes from the Latin root word meaning ‘to prove’.

If there is a will, that probate case will be called testate. If there's no will, it's called intestate.

There will be different rules applied if there's a will or no will, however, the basic process will be the same.”

What can you expect from probate? Download our free guide.

All About Probate Bonds

What is a probate bond?

A probate bond is an insurance policy taken out which insures that the executor or administrator properly distributes the assets of the estate to creditors and beneficiaries. In the instance that a creditor or beneficiary believes after the conclusion of the case that fraud was committed, they can sue the executor/administrator and the bond will pay the judgment.

The amount of the bond is determined by the value of personal assets owned by the deceased. A bond must be secured for twice the amount of the personal assets (not including real estate,) with a minimum bond required of $40,000 for $20,000 of assets or below.

Is A Probate Bond Required?

In Ohio a probate bond is required where there is no will or the will does not do away with its requirement. Most wills drafted by attorneys will eliminate the bond requirement to make the process easier for the surviving family.

An experienced probate attorney can help determine if the probate bond is necessary.”

What is real estate only probate procedure in Ohio?

Definition

beautiful house in the countryside in vibrant coloursIn the case of person passing away without a will in Ohio (intestate), this statute gives the state a procedure to follow in terms of figuring out who will receive the assets.

First, the estate will go to the surviving spouse, and the children of the decedent from prior relationships. If there is no surviving spouse, the assets belong to the children. If no children, then to the parents of the deceased, next to siblings, and finally to lineal descendants of the grandparents.   

Where no blood relatives can be found, the property falls to the State of Ohio.

Process

There is a packet of forms which must be filled out for Real Estate Only.  When the forms are properly completed, take it with an original death certificate and paid funeral bill to the county probate court.  If everything is in order, the court will issue the Certificate of Transfer which acts as the new deed. It then needs filed with the county Auditor (tax purposes) and Recorder (land records.)

If six months have not passed, the real estate can still be transferred if certain other conditions are met through a normal full estate probate procedure. However, this process is a bit longer and more involved.

Why You Want To Avoid Probate?

How To Avoid Probate

What is release from administration in Ohio Probate?

A Release from Administration is allowed when the assets to be transferred of the deceased's estate is below court set limits. Where there is a surviving spouse, and the assets are under $100,000, or where there is no surviving spouse and the assets are under $35,000 the court permits this shorter procedure. In this instance, the procedure is shorter, less paperwork intensive and less expensive.

Keep in mind that many assets are non-probate assets and not includable in the release from administration calculation. Things like life insurance proceeds, jointly held property and payable upon death financial institutions are non-probate asset and equal zero when determining the probate asset base and whether they qualify for release from administration.

Summary Release from Administration

There are also several conditions that can warrant a "Summary Release from Administration". This procedure is even less burdensome than release from administration.

A surviving spouse entitled to inherit the whole of the deceased's estate and receive the family support allowance of $40,000 would qualify for this exception. Also, if there is no surviving spouse and the value of the estate is less than $5,000, summary release can be used.

Probate Attorney

Questions to Ask a Probate Attorney

1. What other areas of law do you practice?

In general, it is better to have an attorney who is focused on estate planning, probate and real estate and in matters of end of life planning and the resolution of wills.


There may be other areas of practice within a law firm, but you want an attorney who has expertise in dealing with these matters to guide you through the complicated probate process in an expedient manner.


2. What is the time frame in which you estimate my case to be resolved?

Probate can be time consuming and expensive. After reviewing the details of the estate, a proficient probate attorney should be able to give you a good estimate of the time it should take to complete.  An attorney who cannot answer this question might draw out the process and cost you more money.

What can you expect from probate? Download our free guide.3. What potential issues do you see with my case?

There can be several issues that may arise with any probate case. If there is any chance the will may be contested, you should make sure you tell your attorney.

If there are any debts that must be dealt with or if there are any unknowns about the deceased’s finances, the probate attorney should be able to tell you what complications there might be.

4. How do you assess your fees? Hourly? Flat fee?

Given the lengthy and costly process of probate, this is a very important question to know up front. If there is a flat fee, make sure you ask if there is any possibility of incurring other fees so you are not surprised later on.

If the fee is hourly, ask how many hours the attorney estimates he or she will spend on your case.  Some attorneys charge a percentage of the total assets. In larger estates, this may be inefficient and lead to high costs.

5. How easily can I reach a paralegal or attorney if I have questions?

This question is to give you a comfort level.  Some offices may not answer your questions for days, while others have policies to assure all phone calls and emails are answered promptly.  At Port Legal we put great effort into answering all inquiries within 24 hours, and in most instances its much sooner. Communication in any legal matter is crucial.

Wills

Our Top 3 Tips for planning your will

1. Don't Forget to Select an Alternate Executor

Blog Image - Our Tops 3 Tips For Planning Your WillMost people know exactly who they want as their will executor. This is usually a close friend or family member or possibly a trusted lawyer you have worked with for a long time.

Your executor is in charge of ensuring that all your final wishes are respected, wrapping up your finances and personal affairs, and finally distributing any property that was held in the probate process, unless you also have a living trust.

No doubt you have a name in mind, but what if for some reason they can't fulfill your duties when they're called on? Whether they're out of the country, have the flu, or are simply too distraught to manage, you need to clearly designate an alternate executor who can take over in their stead. Otherwise, the court may assign someone you would object to.

2. Make Sure Your Will is Legally Valid

You might be surprised how many people have a clearly written will but have forgotten to go through the process of legally validating their will. Often your will can still be used no matter the condition, but you run the risk of creating an unnecessary hassle for your executor. Additionally, you can put your family in a precarious position if anyone chooses to contest your will.

For a valid Ohio will, you need:

  • To be of legal age of 18
  • Clear statement that the document is your will
  • To be of sound mind - usually not a problem unless there's proof otherwise
  • Your Signature
  • 2 Witnesses who do not inherit must sign it (3 in Vermont)

The last item is the one most usually forget. Once you're sure your will is legally valid, you can save your executor a few more headaches by asking them to go over the document with you.

Explain your wishes as they relate to what you wrote down and answer any questions they may have. This will help them enact your wishes exactly as you intended should they be called to do so.

3. Keep an Asset Inventory Sheet

Finally, keep an inventory sheet of all assets you have full or partial ownership of. This is most easily done by using an estate planning worksheet that includes a section for assets but you can also make your own tracking document at home.

Make sure to list everything you own along with a brief description of it so there is no confusion when it comes to identifying and distribution.

Specifically, list all your items of real value like jewelry, expensive equipment, vehicles, property, and your home.

Make a note of the current market value of each item along with anything you're still paying off and your current percentage of ownership. You should also note whether or not each item is owned 'jointly' with a spouse or partner or 'separate property' that belongs only to you.

Simple Wills

7 Things you need to know before you set-up a simple will

1. What Does a Simple Will Do?

Even if you believe you have no assets to pass down, a simple will can answer questions about how your remains will be handled.

Religious or family preferences can be assured when you create a simple will.

Here are a few things a simple will can do:

It Gives You the Power to Make Decisions

A well written will takes the decision-making out of the hands of the government and others. A common misconception I've heard all too often as an estate planning attorney is: “my family will know what to do.”

A death in the family often causes otherwise trusted relatives to become different people. Grief can lead us to act in unexpected ways.

The courts are littered with probate disputes between otherwise loving family members burning up remaining assets in attorney fees.

Perhaps the care of a beloved pet must be assured. A simple will ensures that your wishes are put into effect.

It Leaves Your Possessions With Your Loved Ones

Without a will, your possessions and minor children will be handled through the courts and probate law.


Another factor is the unforeseen matter of your spouse remarrying and disinheriting your children. A simple will can plan for and avoid any unwanted circumstances.


If you and your spouse unfortunately pass away in the same calamity, it is vital to assure any minor children are provided for and that a guardian of your choice is appointed. Possible equity in a home and other assets need to be protected for the use of the minor children.

It Allows You to Name an Executor

A simple will also informs the world of the person you choose to carry out your wishes by naming an executor who will oversee all details. This could be one of your adult children or other relative that is better at handling these kinds of things.

2. What Is the Difference Between a Simple Will and a Living Trust?

Still there's the question of whether or not a simple will is the best fit for you.

One of the biggest differences between a will and a trust is that a will goes into effect upon death, while a living trust is effective immediately upon creation. Here are a few others:

Will

Trust

Must go to probate court

Does not go to probate court

Does not require an attorney or notary

Requires a notary and often an attorney

Names guardians for children

Cannot name guardians for children

Names an executor

Does not require an executor

Easier to make but requires witnesses

Does not require witnesses

Names beneficiaries

Names beneficiaries

 

Requires transfer of property

A living trust will keep your assets within the rights of those you choose. Additionally, it will keep your family and loved ones out of probate court.

3. Will a 'Last Will & Testament' Keep My Loved Ones out of Probate Court?

As a probate attorney, I've had the experience of telling those dealing with loss that "a simple will was just not enough." It's often both saddening and frustrating for everyone involved.

There is a common misconception that having a last will and testament will keep your loved ones out of probate court when you pass. This is not true.

When one dies with and without a will and there are assets to be distributed to family, in most instances the law requires the family to make a filing with the county probate court where the deceased lived at the time of death.

The probate process can be expensive, long and complicated.

Quote-misconception-about-wills-living-trust

The short answer is "no." A last will and testament will not keep your loved ones from attending probate court. Often, the only solution that will keep you out of probate court is a living trust. You can learn more about that by clicking here.

4. How Often Does My Will Need to Be Updated?

Your existing simple will may need updated. The general rule is that your will should be updated whenever you experience major life changes. Here are a few to consider:

You Should Update Your Will If You Move

If you move to a different state, it may be worthwhile to assure that differing state laws do not interfere with your wishes.

You Should Update Your Will If Your Marital Status Changes

If you have children, get married or divorced or experience any other life altering events, it is wise to have these things incorporated in a new will.

5. How Do You Update a Will?

A codicil is an amendment to an existing will which may be able to cover life changing events.

But, with the relative low cost of a new will, it might make sense to avoid codicils with potentially conflicting language, and instead create a new will entirely.

6. What Happens if You Die Without a Will?

If you die without a valid will, you'll become what's called intestate. This means your estate will be settled based on the laws of your state that outline who inherits what.

Every state has difference intestacy laws. In Ohio intestacy, for example, this means that if you die without a will and you have children but no spouse, then your children inherit everything.

Without a will, your loved ones will still go to probate court. Probate is the legal process of transferring the property of a deceased person to the rightful heirs.

7. Where Should You Keep Your Will?

You should keep your will in a safe, accessible place. Often, in a bank safe deposit box that only you can get into, your family might need to seek a court order to gain access.

Another good option is a waterproof and fireproof safe in your house.

You should also keep multiple copies of your will. It's a good idea to have your attorney keep a copy of your will on file.

Our consultations are completely free of charge and intended to equip you to make the best decision.

Living Wills

What is a living will and health care power of attorney?

A Living Will is a directive to any medical provider, and is effective whether or not a next of kin or Health Care Power of Attorney designee is notified. The Living Will tells the medical provider that you do or do not wish to be resuscitated or kept alive by artificial means.

You may choose to file the Living Will with the Ohio Bureau of Motor Vehicles so that in the instance of an emergency, a medical provider can look it up in the database for direction. Also, your driver’s license can be noted to show that a Living Will is on file.

There is a perception that living wills can be used to allow a person to die who otherwise could be saved, but this is incorrect. Living Wills only take effect when a patient is deemed to be in a permanent vegetative state or suffering from a terminal illness and unable to communicate their wishes. A living will does not mean that a physician would refuse to administer pain medications and other treatments that would make the patient more comfortable.

Living wills are not relevant to routine medical treatments and conditions that are not considered life-threatening. In most cases, the determination as to whether a living will is applied is determined by the individual's attending physician in addition to another physician who has reviewed the individual's medical condition. All physicians have strict guidelines as to when a Living Will becomes applicable.”

Trusts

The Differences between wills and trusts

What Wills and Trusts Both Do...

  • Name beneficiaries for your property – A will simply describes the property and names the person who will receive it upon your death. A trust does the same, but the property is also transferred to the trust.
  • Leave property to young children – Since those under 18 cannot legally own property except for small items, a will must name an adult to manage the property. With a trust, there is already someone named to take care of the property until the child reaches 18 or some other age you determine.
  • Are revisable - You can revise both documents as long as the trust is revocable.
  • Name guardians for your children – You can make sure your young children are provided for.
  • Name property managers for child’s property
  • Name someone to take over after you pass, an executor in a will and a trustee in a trust – This role is very important. After you die, there are many tasks to manage such as paying your bills and distributing any property that goes through probate. An executor also communicates with the court.
  • Instruct how debts and taxes are paid – You can make sure that your debts are paid from the funds you name. You can also use a will to forgive any debts owed to you.

What Only Trusts Do

  • Avoid probate – Not everyone needs to avoid probate. This long and tedious process officially wraps up your affairs once you’re gone, but if you don’t own much, it may not make sense to have a living trust. In fact, if you have lots of debt, a trust may not be necessary. But if you do have a lot of property to distribute, a living trust will save your family and beneficiaries any fees and interference from the court.
  • Keep your privacy after your death – A living trust does not become a public document unlike a will.
  • Does not require two witnesses, only one Notary.
  • Property goes into the trust – This means you will have to retitle any real estate you own. Property that does not require title can simply be listed and attached to the trust document.
  • More protection from legal challenges – Either can be contested, but a trust provides a layer of privacy.
  • Avoid conservatorship – If you become incapacitated, a trust allows you to name someone to manage it for you. A will does not. If you have a will only, you can create another document called a durable power of attorney to name someone to manage your affairs when you no longer can.

Living Trusts

Why Have a Living Will and Health Care power of attorney?

doctor handshake with a patient at doctors bright modern office in hospital-1It is important to understand that these documents are only effective in the event that you are unable to express your wishes. It is not possible for a designee to order mistreatment or contrary medical treatment in the instance that you can be understood.  These documents only become effective through the terms you wish to apply.

As we are all too well aware, aggressive medical treatment can leave one in a state of technical life, however the issue we must all deal with is the quality of life we choose. In the instance that medical professionals rule out future cognizance or understanding, you should have written instructions which will carry out your wishes.

How a living Trust can help you avoid a probate

A living trust is seen in the eyes of the law as a separate entity, so after one passes away that entity still exists.

Cost of Probate vs. Cost of a Living Trust

The price of a living trust is obviously going to vary upon your exact situation, but your looking at anywhere from $1,500 to maybe $2,500 or $3,500.

When you're looking at probate you're probably starting at around $4,000 and it’s going to go up from there.

The cost of probate can be double, or triple, or even quadruple the price of setting up a living trust. If there’s a living will you'll avoid all those costs.

With a living will you will have some upfront to establish the living trust and then after you pass away there are several documents that have to be created, but those are relatively easy to create and you’re looking at hundreds of dollars compared to thousands.

The ideal situation is to put everything you have into your living trust. So, your checking account rather than saying “Bob Smith” will say “Bob Smith, Trustee”. The deed to your house rather than saying “Bob Smith’ will say “Bob Smith, Trustee”. It’s that simple.

Medicaid Trusts

Is a medicaid trust right for you?

Medicaid How It Works-01

“Essentially, a Medicaid trust allows the grantor— the person to whom the assets belong— to transfer their assets into an irrevocable trust, which will be distributed to per the grantor’s instructions after their death. The assets are available for the grantor’s use, but they don’t have control over them.

That said, you can’t transfer assets to a trust days— or even months— before you apply for Medicaid. There’s a five year look-back period; basically, Medicaid can look through your assets from as far back as five years prior to determine if you’ll be required to undergo a spend down to qualify.

If you transferred, say, your house into a Medicaid trust just four years ago, you might be forced to sell it in order to qualify for Medicaid.

This isn’t an attempt to force you to divest yourself of your assets; rather, it’s a response to the rampant, systemic fraud that was all too common within the Medicaid system.

Remember, Medicaid is intended to serve people who don’t have the money to pay for their care– not millionaires who want to give all their money to their children.”

Special Needs Trust

1. Get organized

Being a caregiver means you need to be responsible for many different aspects of your loved one’s life, so it’s important to get organized and keep everything related to his or her care together in one place. Paperwork, keys, a list of important phone numbers, and anything else you might need when considering your loved one’s well-being should go into a folder so/schedule-a-consultation-with-an-elder-care-attorney you can easily access it all whenever you need to.


It’s also critical for both your and your senior’s peace of mind that you have affairs in order. This doesn’t just include immediate needs, but long-term concerns as well.


It’s important that you and your senior have an honest and explicit conversation about the future and your senior’s wishes in case of emergency, sickness, or even death. If you leave this discussion until it’s too late, you may find yourself in a stressful and difficult situation.

2. Help your loved one make friends

Becoming social, and staying social, can be hard for seniors, so help your loved ones find a book club, gardening club, or workout group to join in their community. Living alone can be difficult, so it’s helpful if there’s a group of people they can connect to and spend quality time with on a weekly basis.

3. Help them stay mobile

For seniors who don’t drive or have limited mobility, getting around to doctor appointments and to the grocery store can be daunting. It’s important to help seniors find a safe means of transportation through a local senior center or community service and to make sure they have the phone number for the service to pick them up when they’re finished and ready to go home.

4. Stay involved

The best way to help your loved ones is to stay involved in their life. Talk on the phone often and help them set up a smartphone or other device that will allow you to have video chats. Take an interest not only in their doctor visits and checkups, but in their daily activities as well. Help seniors feel as though their lives have meaning and importance. You can find some helpful resources for seniors here.

If your loved ones are having difficulty with getting around, remembering things, or taking care of their home, it may be time to think about downsizing. This can be an overwhelming process for some seniors, especially if the best option is to move into an assisted living facility. Help your loved ones decide if they’d rather live somewhere that will give them access to medical care in case of emergency or just move into a smaller home, and make sure to talk about the pros and cons for each.

Of course, downsizing isn’t easy because seniors must deal with paring down belongings and saying goodbye to some memories. Help your senior face this challenging time by offering to come and stay for a few days to help make arrangements, clean, and pack. For some tips on how to make downsizing easier, head to Redfin.com.

When looking after your loved ones from a distance, it’s important to give them as much support as possible, get their affairs in order, and encourage exercise and social activity. But remember to take care of yourself, too.

Contact Port Legal of Central Ohio today to find out how we can help you find the best solutions for all of your family’s estate questions and concerns.

Our consultations are completely free of charge and intended to equip you to make the best decision.


Topics: Estate Planning, Probate, Trusts, Wills, Estate Administration, Estate Executor, Succession Planning, Business Owners, Ohio Probate, Ohio Probate Lawyer, Probate Process, Special Needs Planning, Ohio Estate Planning, Ohio Estate Planning Lawyer, Living Trust, Elder Care Law Attorney, Elder Care

Port Legal Staff

Written by Port Legal Staff