Wills, Estate Planning, and Probate
You likely have an estate. In fact, nearly everyone does. Your estate consists of everything you own, including but not limited to your car, home, other real estate, checking and savings accounts, investments, life insurance, furniture, personal property. Eventually, everything you own in this world is part of your estate. Therefore, everyone should have a plan for their estate for when they die. The Newby Law Office can help you make the plan for your estate.
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ESTATE PLANNING
Estate planning is important regardless of your health or age. It’s important for adults with children to ensure your children are protected, it’s important for older adults so your wishes are known. And it’s important for young adults so they have someone who can make financial or healthcare decisions if you are unable to or incapacitated for any reason.
The best way to protect you and your family is to prepare an estate plan which includes a will, general durable power of attorney, and advance directives. The general durable power of attorney (sometimes referred to as a financial POA) is created specifically to let someone else act as your agent for financial and other matters. Advance directives inform your family and medical professionals how you would want important medical decisions to be made on your behalf when you aren’t able. This can include whether you want or don’t want certain medical treatment, or if you want or don’t want to be kept on life support if the situation arises. Wills help distribute your property, name an executor, name guardians for minor children, and more.
CREATING A WILL
A will allows you to designate beneficiaries of your estate. A will can be specific or general or both. Example: “My entire estate to be split between my two children, Alice and Bob, equally.” Or, “I give X things to Alice, X things to Bob and the rest split equally between them.” A will allows you to choose an executor to manage your affairs. Having a will does not allow you to avoid probate. Reach out to the attorney to discuss ways to avoid probate.
The Newby Law Office provides a simple step by step process to create your estate planning documents. This process can be done securely online or through physical documents. Your will and other estate planning documents are reviewed by the law office and yourself before the documents are legally executed. The Newby Law Office offers many easy ways to execute your documents, including home visits if requested.
NOTE: A will is only effective AFTER death. If you wish to create documents that will operate during your life, reach out to discuss documents like a durable financial power of attorney, a healthcare power of attorney, or a living will.
DURABLE FINANCIAL POWER OF ATTORNEY (POA)
A Durable Financial Power of Attorney allows you to select someone to make your financial choices when you can’t. You can give your agent power over all of your finances or only certain parts. You can also write down specific wishes or directions for your agent. Your agent is required to make decisions that align with these wishes. A POA is active immediately, and will continue to be active if you become incapacitated. A POA is only effective while you are alive. It will expire immediately upon your death.
HEALTHCARE POWER OF ATTORNEY
A healthcare power of attorney allows someone to make any healthcare decisions for you if you’re not able (i.e. temporarily unconscious, in shock, etc.). However, certain decisions are reserved only for you. You can list preferences for certain medical treatment. Also, a healthcare power of attorney allows you to make a decision regarding artificial nutrition and hydration. Once we have executed your healthcare power of attorney, you should give it to your primary care physician and your agent. You should take your healthcare power of attorney with you if you have surgery or other hospital procedure. Everyone should have HCPOA!
LIVING WILL
While a Living Will sounds like a document that dictates your estate will you are alive, it does not work in that manner. A living will only comes into play if you are terminally ill (likely to die within a short period of time) or in a permanently unconscious state (brain dead) as determined by 2 doctors. Essentially the Living Will is saying that if you’re in one of those two states, you are giving the doctors permission to decide when to withdraw care. If you are in one of 2 states, allows you to make preference about whether you want artificial nutrition and hydration. You are always entitled to comfort care.
DECLARATION OF FUNERAL ARRANGEMENTS
The Declaration of Funeral Arrangements names an individual to execute your wishes. It contains information regarding your wishes regarding the disposal of bodily remains. Also, it describes where someone could find the funds to execute your wishes.
ESTATE PROBATE
What is estate administration?
Estate administration is the process by which a person's assets are collected, maintained, and distributed among creditors, heirs and beneficiaries according to the person's Will and the laws of Ohio.
When an individual dies, some of the person's assets may be transferred by trust, joint and survivorship property, payable on death accounts, transfer on death property, and beneficiaries named under life insurance and retirement benefits. These are non-probate assets. Other assets must be transferred through proceedings in probate court and these are called probate assets. Most people die owning both probate and non-probate assets.
How does the probate process begin?
After the death of an individual, the probate process begins by any interested person filing an application to administer the estate in the county in which the decedent lived. The court will appoint an estate representative, called a fiduciary. The fiduciary is responsible for administering the decedent's estate and accounting to the court for that administration. A bond may be required of the fiduciary to protect the beneficiaries and creditors of the estate and to ensure proper administration of the estate's probate assets.
FREQUENTLY ASKED QUESTIONS
The Newby Law Office is often asked these questions from clients regarding estate planning and will creation.
Are you an estate planning attorney near me?
YES! Attorney Joel Newby practices in Columbus and throughout central Ohio.
How much does an estate planning attorney cost?
The cost really depends on what needs to be created. The Newby Law Office offers some great deals and discounts for couples. Click HERE for the full pricing schedule.
Should I get an attorney to create my will?
The short answer: YES! The long answer: Ohio law requires a will to have certain elements to be valid. An attorney helps you create a legally valid will. Further, an attorney will give advice based on the information that you provide to help you create an estate plan specially created for you and tailored to your specific needs.
Should I use online programs or legal websites to create my estate plan or will?
Consult an attorney to evaluate your case. Online programs or legal websites charge the same amount as an attorney but provide little to no actual legal advice. Further, Attorney Joel Newby has reviewed wills from some of these sources that are not legal and/or do not achieve the goals of the person creating the will. Technology will one day provide a larger role in creating a will, but these programs just are not close yet.
What if there is no Will?
If the decedent had no Will, the decedent's probate property is distributed to the decedent's nearest surviving kin in the manner as set forth in the law.
What if the Will is unclear?
If the Will is unclear, an action to construe the Will may be filed in the probate court. A hearing is held to determine the intent of the testator.
May I object to the Will?
Any interested party may contest the validity of a Will. A Will contest must be filed within three months after the filing of a certificate that all interested persons were given or waived notice of the admission of the Will to probate.
Must a Will be presented to the court?
A Will should be presented to the probate court as soon as practical after the death of an individual, even if there are no known probate assets. A person who withholds a Will intentionally, negligently, or without reasonable cause may lose the right to inherit.
How long should it take to administer an estate?
The time it takes to administer an estate depends on each estate's circumstances. Some estates are administered in six to nine months. Some circumstances extending estate administration may include the sale of real estate, filing an estate tax return, or if the estate is involved in litigation.
What are the steps of an estate administration?
The basic steps of administration are as follows: (1) Filing of an application for authority to administer the estate and admit the will to; (2) probate, if one exists; (3) Appointment of fiduciary; (4) Gathering assets and obtaining appraisals as required; (5) Filing an inventory of assets; (6) Paying creditors; (7) filing estate and income tax returns and paying taxes, if any; (8) Distributing remaining assets to beneficiaries; (9) Filing accounts; and (10) Closing the estate.
No one wants to think about their own death; however, by aggressively preparing for that time, you could save your love ones a lot of stress, money, and potentially sadness. The Newby Law Office can help you create these documents. To start the process of creating these documents, sign up for a free consult today.