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Estate Planning Essentials

The following is a brief explanation of the primary documents that are usually discussed with clients at an estate plan meeting.

Last Will and Testament – Probate Court

This document is filed with a Probate Court and authorizes an Executor to pay all of the last bills and expenses of the decedent out of assets that are held in the name of the decedent. This formally sets up an estate. After the payment of all bills, the Will then directs a transfer of all remaining assets to particular persons: surviving spouse, children, charities, relatives, etc. The Probate process usually takes from 6 months to 1 ½ years.

  • Next of Kin are to be served with a Notice that there is a Will.
  • Smaller estates may be permitted to file for an expedited probate process.
  • Personal injury
  • A final account is usually filed that itemizes all assets, receipts, expenses and distributions

Trusts

A Trust is a legal document or agreement that directs the transfer of property other than through a will. A trustee of a trust can hold title to assets as trustee and the assets can be distributed upon a person’s death according to the terms of the trust document.

  • There is not necessarily Probate Court involvement. This is a popular way to transfer assets without court involvement.
  • Assets must be re-titled in the trustee’s name. Many times trusts are established but assets are not re-titled leaving the trust ineffective.
  • Conditions can be placed on the transfer of property that cannot be placed on assets through a standard Will.
  • Trusts can be created in a Will but these trusts would require Probate Court involvement.
  • Disputes would be resolved through the Probate Court.

Power of Attorney – Financial

A Power of Attorney allows a person (principal) to appoint someone else to handle their financial affairs if that person is unavailable or sick. The designated party can then handle real estate transfers and access bank accounts and investment accounts for the benefit of the principal.

  • A Power of Attorney is automatically revoked upon the death of the principal.
  • A Power of Attorney can be revoked by the principal at any time.
  • A financial Power of Attorney does not apply to health care situations.

Health Care Power of Attorney

A Health Care Power of Attorney allows a person (principal) to appoint someone else to make health care decisions for the principal if the principal is unable to do so.

  • It usually appoints a spouse and/or an adult child as the representative to make health care decisions.
  • It is usually signed along with a Living Will.

Living Will

A Living Will directs health care providers to withhold medical care if the principal is terminal or in a permanently unconscious state.

  • A Living Will usually works best with a Health Care Power of Attorney.
  • One can also allow for the withholding of food and water in a Living Will.

Should You Try to Avoid Probate?

A big topic of conversation, much of it exaggerated, in Estate Planning meetings is avoiding probate. In addition to trusts, probate can be avoided through the use of bank accounts with a Pay-on-Death (POD) feature. For real estate, a Transfer-on-Death deed can be used. In both situations the beneficiary is not an owner of the property and only will become an owner after the principal’s death. Thus, whatever financial condition the beneficiary is in, that will not affect the solvency or ownership of the primary asset.

Less recommended is the use of joint and survivor accounts to avoid probate. With these accounts, an owner is adding another person’s name to the ownership of the asset, intending for that person to inherit the property after his or her death. This is a common method between spouses. However, with non-spouses, a principal is not only giving up control of an asset but also subjecting the assets to the financial problems of the new owner. In other words, if the new joint owner has been sued, his judgment creditors may be able to attach or seize a joint asset in order to satisfy the judgment. This can be very risky and thus should be avoided.

In many situations, probating an estate is an efficient and effective method of transferring assets of a decedent. The process is transparent and the court’s review gives confidence to all interested parties that the estate is being handled in a fair and legal manner. Notices to interested parties are required and provide for an additional level of review by all parties.

Please call or email if you have any questions.
James Cullen 216-685-9700 jpcullen@core.com

Personal Injury Real Estate Business Law Probate & Estate

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James P. Cullen LLC, LPA
55 Public Square, Suite 1550
Cleveland, OH 44113
Phone: 216-925-0197
Fax: 216-771-8234
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