If you use a simple last will to state your final wishes with regard to the distribution of your monetary assets, you will name an executor to act as the hands-on administrator. Some people think that the executor can read the terms of the will to the people that are impacted and start distributing assets right away.
In reality, this is not the way it works at all. A will would be admitted to probate, and the probate court would provide supervision during the process.
During probate, there is a “proving of the will.” The court examines the document to make sure that it has been properly executed, and witnesses to the signing must be contacted.
It should be noted that in some states, the witness testimony can be omitted if the will is self-proving. This would speed up the process, and it is done by having the witnesses sign the will in front of a notary. In Ohio, this is not permissible.
Anyone that wants to come forward to contest the validity of the will can do so during the probate process. Acceptable grounds include fraud, coercion, undue influence, improper execution, the introduction of a more recent will, and mental incapacity.
Another function of probate is to allow the creditors of the decedent to come forward seeking satisfaction. This is totally fair, but it slows down the process considerably.
In all, it can take eight months to a year or more for probate to run its course, and the inheritors receive nothing during this interim. That is a long time to wait for an inheritance, and it is not the only drawback.
There are considerable expenses that accumulate during the probate process, and it is a public proceeding. Anyone that is interested can access probate records to find out how the assets were distributed to the heirs.
The loss of privacy is generally disconcerting, and the information can cause genuine hard feelings among interested parties.
Guardianship
Another type of case that would fall under the jurisdiction of the probate court is the matter of adult guardianship. Unfortunately, a significant percentage of elders become unable to make sound decisions at some point in time.
Alzheimer’s disease strikes 32 percent of people that are 85 years of age and older, and there are other underlying causes of incapacity. If you do nothing to prepare for this eventuality in advance, the probate court could be petitioned to appoint a guardian to act on your behalf.
This is a necessary safeguard, but a guardianship proceeding can be less than ideal. First of all, there is the unwieldy nature of the process itself. Secondly, the person that is chosen may not be someone that you would have selected yourself. Lastly, family members may disagree with regard to the optimal course of action.
You can proactively prevent a guardianship through the inclusion of an incapacity component within your broader estate plan. This would involve the execution of durable powers of attorney.
In these documents, you can empower agents to make medical and financial decisions on your behalf. It should be noted that you could also name a disability trustee if you are using a revocable living trust as the centerpiece of your estate plan.
Your incapacity plan should include a living will as well. With this type of will, you state your preferences with regard to the utilization of life-sustaining measures like mechanical respiration, resuscitation, and artificial nutrition and hydration.
Attend a Free Webinar!
We are conducting a number of webinars over the coming weeks and months that will cover some very important estate planning and elder care topics. There is no charge to attend the sessions, and you earn a free virtual consultation if you attend.
You can see the dates if you visit our webinar page, and when you identify the session that you would like to attend, follow the instructions to register.
Need Help Now?
We are here to help if you would like to discuss your objectives with a Cincinnati estate planning attorney. You can send us a message to request a consultation appointment, and we can be reached by phone at 513-721-1513.
