One of the things I love most about my job is the opportunity to help people plan ahead to protect themselves, their families and loved ones, their pets, and their property. Unfortunately, every single one of us will die someday, and many of us will become less able or unable to manage our own affairs as we age or if we fall ill. Planning ahead gives you certainty and peace of mind. It also reduces the future burdens on your loved ones.
Estate planning is the process of managing your property during your lifetime and transferring your property to others on your terms when you die. Through estate planning, you can care and provide for yourself and your loved ones and minimize certain risks, including taxes, creditor claims, and beneficiary disputes. It is a personalized process tailored to your individual concerns and goals. What are some of your most important estate planning goals?
If you feel a bit overwhelmed by the estate planning process, you are not alone. None of us enjoy thinking or talking about our own death. The range of estate planning options available can seem confusing and the number of decisions you need to make to protect yourself and your family can feel enormous. I remember what it felt like to be a young attorney learning all this for myself and now I enjoy helping others learn about estate planning – I look forward to teaching continuing education to other attorneys, speaking to groups, and sitting down one-on-one with clients. We can work together to simplify the estate planning process, choose the options that best meet your needs, and create a plan tailored just for you. You may need a very simple estate plan, or your needs may be more complex. There are estate planning options available to fit every person, family, situation, and budget.
Please click on the arrows below for more information about our primary estate planning tools:
A Last Will and Testament, often simply referred to as a “Will”, is a legal document that takes effect at your death. The terms of your Will determine how your property will be distributed and to whom. The person you designate as executor will be responsible for winding up your personal affairs and managing your property until it can be distributed. Your Will may also contain special instructions or grant specific authorities that may be needed to administer your estate.
When you pass away, your Will is admitted to probate. Probate is the formal, court-supervised, legal processing for validating your Will, appointing an executor, and settling your estate. Your executor and the probate court are both required to carry out your wishes as expressed in your Will. The more clearly and thoroughly your intentions are expressed, the more likely they will be followed!
If you die without a Will, state law determines who inherits and administers your estate. Without a Will, you lose your right to determine who will serve as the executor of your estate and designate the beneficiaries of your property.
A power of attorney is a grant of legal authority. A power of attorney gives another person the power or authority to act on your behalf as your “agent” or “attorney-in-fact.” You may grant another trusted person the authority to make decisions for you and act on your behalf for almost any matter or purpose. A Durable General Power of Attorney grants another person broad authority to assist you with a wide variety of personal business and financial matters, including doing your banking, paying your bills, filing your taxes, managing your property, handling legal matters, applying for government benefits, etc.
A Durable General Power of Attorney is especially useful to plan for the possibility that you may become mentally or physically unable act on your own behalf at some point in the future. Some of the more common reasons powers of attorney become necessary are dementia, neurological disease, illness, accidents, and age-related cognitive decline. Powers of attorney are also used to prepare for planned events such as travel or surgery. A power of attorney must be created before you need it, while you still have capacity to act on your own behalf.
If you don’t have a Durable General Power of Attorney and become unable to act on your own behalf, a probate court will appoint a guardian to oversee your finances and personal business. A guardianship proceeding is very costly, cumbersome, and public, and should be avoided whenever possible.
A Health Care Power of Attorney grants another person the power or authority to obtain your protected health information and make health care decisions for you. Your health care agent will have the power to make decisions on your behalf only if you are unable to make those decisions for yourself. Some of the more common scenarios where you may need the assistance of a health care agent include during or immediately following surgery, if you are unconscious following an accident, if you suffer illness or injury that impairs your cognitive function, or if you experience dementia, neurological disease, or age-related decline in decision-making ability.
You can use your Health Care Power of Attorney to provide special instructions regarding any health care related matter. It is a good idea to leave instructions regarding your end of life wishes, life support preferences, organ donation, information sharing with family and other loved ones, and other important matters. A power of attorney must be created before you need it, while you still have capacity to act on your own behalf.
If you don’t have a Health Care Power of Attorney and become unable to make your own health care decisions, a probate court will appoint a guardian to make those decisions for you. A guardianship proceeding is very costly, cumbersome, and public, and should be avoided whenever possible.
A Living Will documents your end-of-life care wishes. You can use a Living Will to instruct your health care providers in advance regarding the health care you would like to receive if you become permanently unconscious or terminally ill and are unable to make your own decisions. You have the right to refuse live-saving and life-sustaining treatment if you are permanently unconscious or terminally ill. If you would prefer to die naturally with comfort care under these circumstances, a Living Will is an effective and binding way to express your preferences.
You can use a Living Will to: (1) document your end-of-life treatment wishes, (2) relive your family members from the burden and guilt of making end-of-life decisions for you, and (3) ensure your end-of-life wishes will be followed, even if your loved ones disagree with your choices.
If you become permanently unconscious or terminally ill and don’t have a Living Will, your health care agent or family members may choose to keep you alive on life support against your wishes.
A Trust is a legal relationship where the one person (known as the trustee) manages and distributes money and other property for the benefit of a trust beneficiary or to fulfill a trust purpose. The trust relationship is created by agreement between the trust’s creator (known as the settlor or grantor) and the trustee regarding how the trust property will be managed and distributed for the benefit of a trust beneficiary or to fulfill a trust purpose. Every Trust must have a creator, a trustee, trust property, and at least one beneficiary or purpose.
Although a Trust is technically a relationship, you can also think of it like a contract between the trust creator or settlor and the trustee. A trust agreement between the settlor and trustee is usually in writing and a written trust agreement offers the best protection for everyone involved. In simple terms, a trust agreement sets forth the settlor’s intentions and instructions to the trustee on how trust property should be managed, used, and distributed to benefit a trust beneficiary or fulfill a trust purpose. The trustee is considered the legal owner of trust property, but the trustee must follow the settlor’s intentions, any instructions, and the trust terms. A trust agreement is legally binding on the settlor, trustee, and trust beneficiaries and will be enforced by a court if necessary.
A Trust may be revocable or irrevocable. A revocable Trust can be changed, amended or terminated (revoked) by the trust creator or settlor at any time. Most general estate planning trusts are revocable while the settlor or settlors remain living. An irrevocable Trust is less flexible but can be an effective tool to protect assets, provide protection from creditors, or freeze the value of assets for estate and gift tax purposes.
Unlike a Will, a Trust does not go through probate. Many people choose to create a Trust for the primary purpose of avoiding probate. Trusts can also be used for a nearly endless variety of other purposes, including general estate planning, exerting post-death control over property, estate or gift tax savings, planning for a special needs beneficiary, Medicaid planning, creditor protection for trust beneficiaries, general asset protection, family farm or business succession planning, maintaining a family vacation property, providing for pets, and more.
There are many different types of Trusts that could be used to plan for your unique family or circumstances. Here is a brief description of some of the most common Trust types and uses: (click on the arrows to learn more)
An individual, couple, or family can use a Revocable Trust to avoid probate, provide for a spouse and children, provide for other loved ones, minimize estate and gift taxes, exert post-death control over property, make distributions to beneficiaries over time, place conditions on a beneficiary’s inheritance, provide for future generations, and more. Revocable Trusts are extremely flexible and can be tailored to fit most general estate planning needs.
A Special Needs Trust may be established to benefit a disabled person or someone with other special needs. There are many different types of trusts that are referred to as “Special Needs Trusts”, including wholly discretionary trusts created by family members, self-settled trusts created by the disabled person, and pooled trusts managed by a non-profit organization.
A Medicaid Asset Protection Trust can be used to protect your property from Medicaid spend down if you or your spouse require long-term care and to protect your property from Medicaid Estate Recovery state payback after you and your spouse have passed. An irrevocable MAPT Trust is an effective means of protecting your home and excess assets for the benefit of your children or other loved ones and can also be used for general estate planning purposes.
A Pet Trust is a statutorily enforceable trust relationship for the care of one or more animals. A Pet Trust may be used to maintain and care for an animal and manage and disburse trust property and money to pay for the animal’s care. A Pet Trust is established for the purpose of providing for and protecting an animal rather than for the benefit of trust beneficiaries. A Pet Trust will be enforced for the benefit of pets rather than people, making it the most protective planning option available for animals. In Ohio, Pet Trusts can be used to plan for any animal alive during your lifetime, including dogs, cats, birds, horses, exotic pets, farm type animals, and more.
A Testamentary Trust is a trust inside a Will. Unlike other types of trusts, a Testamentary Trust does go through probate and is subject to court oversight. Testamentary Trusts are most commonly used to provide for minor children in the unlikely event that both parents die or in other circumstances where court oversight may be desirable.
An Ohio Legacy Trust is an irrevocable self-settled, domestic asset protection trust. As a general rule, you cannot be a beneficiary of your own asset protection trust. An Ohio Legacy Trust is an exception to that rule – you can protect your assets while still receiving the income those assets produce and possibly even access to the principal. The most common reasons to create an Ohio Legacy Trust include protecting assets from unknown or future general creditors, pre-marital planning, and multi-generational estate planning.
There are several types of trusts that may be established to benefit charities. Some charitable trusts allow donors to support charities while also reserving an income stream for themselves or including family members as beneficiaries. Charitable trusts offer varying degrees of tax benefits, including charitable income tax deductions, capital gains tax avoidance, and estate and gift tax savings.
In Ohio, we can designate beneficiaries on most types of assets, including financial accounts, stocks and bonds, retirement accounts, life insurance, real estate, and vehicles. Upon your death, assets with designated beneficiaries will pass directly to the beneficiaries without going through probate. Beneficiary designations have been described as a “poor man’s trust alternative” because they are easy and inexpensive to establish. You can designate a beneficiary on most assets without the assistance of an attorney.
However, beneficiary designations are deceptively simple. There are a number of potential pitfalls that must be considered. For example, if you designate multiple beneficiaries on the deed to your home, they must all agree and work together to sell your home after you pass. Probate can actually be the simpler and less expensive alternative if beneficiaries cannot cooperate. In addition, if one of your designated beneficiaries passes before you die, most assets will be divided among the living beneficiaries and will not be shared with the deceased beneficiary’s children. Thus, if you designate your adult children as beneficiaries and one of your children predeceases you, your grandchildren may be unintentionally disinherited.
Beneficiary designations are incredibly useful tools but must be used carefully to fit into and meet the overall objectives of your estate plan.
I consider myself a lifelong student, so Estate Planning is a natural practice area fit for me. There is always something new to learn. Not only is the law constantly evolving, every person and family is unique. You will not find any pre-packaged or one-size-fits-all estate plans here – every estate plan is tailored to fit individual objectives, needs, and budgets. With more than 20 years of estate planning experience, I can help you with the “legal stuff” so you can focus on what matters most to you.
My maternal grandparents lived three states away but were two of the most important and influential people in my life growing up. My grandfather only completed the eighth grade, but studied and taught himself finance and investing strategies that enabled him to retire as a millionaire on a working man’s salary. My grandmother owned and operated a small beauty salon at a time when there were no incentives for women-owned businesses because the proper place for a wife and mother was in the home. Every day, I am thankful for the valuable lessons they taught me, not through their words, but through the way they lived their lives: the value of education, the benefits of hard work and self-reliance, and most importantly, to never set limits on yourself or what is possible to achieve. I watched how they created their own little family legacy and were able to support what mattered most to them – family, friends, and worthy causes. Now I get to help others plan for what matters most to you.
Under Ohio law, I am required to advise you that this website IS AN ADVERTISEMENT. The information and materials contained on this website are for general information and educational purposes only. Although I hope you find the information and materials provided helpful, everyone's facts and circumstances are unique and the general information provided on this website may not apply to your particular situation or may be insufficient to address your specific concerns. The information and materials contained on this website should not be construed as legal advice and you should not act or decline to act based on the content of this website without seeking legal advice from an attorney of your choice. The law changes and evolves constantly and the contents of this website may not accurately reflect the current state of the law. Nothing contained on this website predicts or guarantees particular or favorable results. Laura J. Martin and Wright & Schulte, LLC are not liable for any damages resulting from the interpretation or use of information contained on this website. Viewing this website content or communicating with Laura J. Martin through this website does not create an attorney-client relationship. The express agreement of the attorney and client are required to form an attorney-client relationship.
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