As estate planning and elder law attorneys, we often interact with the probate court. There are a handful of different types of situations that must be supervised or decided upon by this court. In this post, we will look at three of these matters that are quite relevant to our field of endeavor.
Statistics are compiled periodically in an effort to gauge the estate planning preparedness of American adults. Unfortunately, younger people are woefully unprepared, and this is a big mistake for parents of dependent children. While it is true that people usually don’t pass when they are in their 30s or 40s, it does happen, so the appropriate safeguards should be put in place.
One of these is the matter of the selection of a guardian to care for the children if there were no parents still living. If there is no estate plan with a guardianship provision, the probate court would be forced to empower a guardian with no guidance from the parents.
This person may or may not be the individual that parents would have chosen, and this is one drawback. Another is the fact that family members can have disagreements with regard to the person that should serve as the guardian of the children.
Most people think about minors when they consider the matter of guardianship, but as elder law attorneys, we see a broader picture. Once you reach the age of 67, your life expectancy is at least 85 years. The Alzheimer’s Association tells us that 40% of people that are 85 years of age and older have contracted the disease.
Clearly, people with Alzheimer’s are not going to be able to handle their own affairs at some point in time. Of course, Alzheimer’s is not the exclusive cause of incapacity in elders. The probate court could be petitioned to appoint a guardian to represent an incapacitated adult.
To make your own decisions and keep the court out of it, you can proactively include an incapacity planning component when you are devising your estate plan. With a durable financial power of attorney, you can name someone to take care of your finances if you become unable to do so yourself. You can add a durable power of attorney for health care to appoint a medical decision-maker.
You may assume that the executor that is named in a last will can act independently and distribute assets to the people that are named in the document after the passing of the testator. In fact, this is not the way it works. The executor would be required to admit the will to probate, and the court would provide supervision during the estate administration process.
There is nothing inherently negative about probate, but it can be troublesome for the rightful heirs. No inheritances can be issued while the process is underway, and it will take eight months to year in most cases. Expenses accumulate during probate, and anyone that is interested can access probate records to find out how the assets were distributed.
There are a number of different ways to avoid probate, and the most popular choice is the utilization of a revocable living trust. When you establish this type of trust, you can act as the trustee and the beneficiary while you are alive, so you retain control. After you are gone, the successor trustee that you name in the document would follow your instructions and distribute assets to the successor beneficiaries outside of probate.
If you die without any estate planning documents at all, the probate court would step in to sort out the situation. A personal representative would be appointed, and final debts would be paid, including taxes. Ultimately, the intestate property would be distributed under the succession laws of the state of Ohio.
Download Our Free Estate Planning Worksheet!
Our Blue Ash probate attorneys have devised an estate planning worksheet that you can use to gain some insight into the process. It is being offered free of charge at the present time, so there is no reason to eschew this resource. To gain access to your copy, click this link and follow the simple instructions: Free Estate Planning Worksheet.