Estate Planning
Frequently Asked Questions

A will is a document that sets forth how a person would like to have their probate property distributed upon death. To be valid, a will must meet specific formal legal requirements.

A properly executed will is valid as long as it is not revoked (canceled). A will is generally revoked when a new will is executed. You also may cancel a will by destroying it with the intention of revoking it. Want to learn more about the legal requirements? Call us, Perrysburg, OH - 419-874-3203 | Pemberville, OH - 419-287-3233

Have kids? If so, having a will would allow you to appoint a guardian for your children.

Without a will or intestate, as the law calls it, if you die, your probate property will be distributed to your closest family members according to a formula fixed by law. So, if you don’t make a will, you cannot control who will receive your probate property. Also, you cannot choose who the court will appoint to administer your estate (commonly referred to as the executor or administrator).

Without a will, working out all of these details would be very expensive/time-consuming and could have been avoided with proper estate planning.

It is not advisable to draft your own will. There are formal legal requirements for a will to be considered valid. Though anyone at least 18 years old, of sound mind, and not under undue influence may make a will in Ohio, but drafting a will demands professional judgment. Hiring an estate planning attorney will help you avoid pitfalls and help design a will best suited for your situation.

Don’t hesitate to reach out to us. Call our office today, and we can assist. Perrysburg, OH - 419-874-3203 | Pemberville, OH - 419-287-3233

Yes, you may change your will as often as you wish. Although to avoid potential unintended consequences, you should not make changes without the assistance and advice of an attorney.

In Ohio, spouses and children have special legal rights to your estate. While there are ways to avoid leaving an inheritance to your children or spouse, these are very technical, and the advice of an experienced estate planning attorney is advised.

Yes, but probably not the gifts to your (now) ex-spouse. It is always good to update your estate planning after a major life event. i.e. Marriages, deaths, births, and divorces. We can help you today!

Probate property consists of all property titled in the decedent’s name that was not designated as transferable on death before the decedent’s passing. Probate property is distributed according to the terms of the decedent’s will. According to Ohio law, it can also be distributed if the decedent dies without a will (intestate).

Yes, non-probate assets will pass directly to a named beneficiary, survivor, or successor in interest without probate proceedings.

An executor has a duty to carry out the wishes of the decedent as set forth in the decedent’s will. An appointed Executor does not have to accept this appointment. If they decline to serve as an executor, either a successor executor can serve, or the court can appoint one.

The Executor or Administrator manages the following tasks:

• Caring for the decedent's property
• Receiving payments due to the estate, including interest, dividends, and other income
• Collecting debts, claims, and notes due to the decedent
• Determining the names, ages, addresses, and degree of relationship of all heirs
• Determining the names, ages, and addresses of all beneficiaries, if there is a will
• Investigating the validity of all claims against the estate and paying all outstanding obligations
• Planning for all relevant estate and income tax returns when required and making the required payments
• Carrying out the instructions of the probate court of the estate and distributing the assets of the estate to the heirs

There are certain things that loved ones should do and certain things loved ones should avoid doing after a family member has passed. Sometimes it is beneficial to begin the estate administration process immediately; other times, there are benefits to waiting. This is a very technical area, and that is why an experienced probate attorney should be contacted.

Every county has a fee schedule that is suggestive as to what the reasonable attorney fees should be. At Ruck & Wright Law, our experienced probate attorneys and administrators will always evaluate what a fair and reasonable fee is on a case by case basis.

A probate proceeding takes place in the probate court of the county in which the decedent lived. If the decedent also owned real estate in another state, additional proceedings may be necessary for that state.

The time it takes to fully administer an estate is different for every case. While some estates can be wrapped up in just a couple of months, other estates may need to stay open longer for a variety of reasons. (IE, if a federal estate tax return is required or if there is some type of will contest). In many cases, however, distributions of most or all estate assets do not necessarily have to wait until all probate matters have been completed.

Unless the Executor or Administrator is confident that the estate will have more than enough assets to pay all of the decedent's debts, they may be well-advised not to pay debts received until the expiration of the creditor's claim period. (Which is six months.) at which time they can determine whether or not there are sufficient probate assets with which to pay the debts or if the estate is insolvent.

A Will, Power of Attorney (POA) (durable or non-durable), Living Will (LW), and Healthcare Power of Attorney (HCPOA).

The key difference is whether the powers granted to the agent survive the principal's incompetency. The powers do survive in a durable POA, and they do not survive in a non-durable.

Whatever powers are granted within the document, if specifically enumerated within the document, then yes, digital assets can be accessed.

Yes. Ohio law now says that, unless the powers are specifically granted, an agent cannot:

1. Create a trust for the principal or make changes to an existing trust.
2. Give away the principal's property.
3. Create or change rights of survivorship.
4. Change beneficiary designations.
5. Let others act in place of the named agent.
6. Waive the principal's right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan.

Such powers are the types most likely to be abused.

Yes, but this is not usually advisable because a financial institution is less likely to accept such a POA. It is better to use the statutory "short" form, which allows the person to pick from many powers which financial institutions recognize. An estate planning attorney can help you avoid pitfalls and help design a POA best suited for your situation.

Yes. The principal who still has sufficient mental capacity can always change or revoke his or her POA. Simply destroying the original document is not enough. It is best to sign a written revocation of the POA and provide a copy to all banks and other financial institutions where the principal has accounts.

The agent's authority begins when the POA says it will begin. If the POA does not state when the powers start, the agent can begin acting immediately.

An agent's authority ends when the POA states that it will end or when the principal revokes the POA. Many POA documents do not specifically state when the agent's authority ends. If the document does not include a specific end date, then the agent's authority will end only when the POA is revoked or when the principal dies. An agent can never act after knowing the principal has died.

An HCPOA is a legal document that authorizes another person (your agent) to obtain your health information and to make health care decisions for you.

An HCPOA names an individual you trust to make a wide variety of health care decisions for you at any time you cannot do so for yourself, whether or not your conditions is terminal. It also requires the person you appoint to make decisions that are consistent with your wishes.

Yes. A POA only pertains to the financial matters of an individual, while an HCPOA pertains to your health information.

No. You may appoint any adult you wish as long as it is not your doctor or the administrator of a health care facility in which you are being treated. It must also not be any person employed by either your doctor or a health facility in which you are being treated.

A living will, or LW is a legal document you can use as instructions about the use/non-use of artificial life-sustaining support if you become terminally ill or permanently unconscious. A LW:

• Only becomes effective when you cannot communicate your wishes and are permanently unconscious or terminally ill.
• Can be changed/revoked by you at any time, but cannot be changed or revoked by anyone else.
• Trumps the HCPOA.

An HCPOA allows health care decisions to be made for you at any time you cannot do so for yourself, whether or not your condition is terminal. At the same time, a LW is a legal document you can use to set forth your directions about using or non-use of artificial life-sustaining support if you become terminally ill or permanently unconscious. The Terri Schiavo case was a terrible situation. The wife did not leave a living will the unforeseeable happened, and she was in a vegetated state without the prospect of recovery. A long battle was endured between her husband and her parents, who could not agree on removing life support; the husband voted to remove it as he claimed his wife would not want to live this way, while the parents remained vigilant that life support should continue. While this was a terrible and unfortunate case, it was a massive eye-opener to all around the world at just how important a LW can be if the inevitable strikes! A LW puts your wishes in writing and is significant tool in avoiding family brokenness, as well as saving your time and money that could otherwise be spent in a major legal debate.

Yes. A living will only affects the care that artificially or technologically postpones death. It does not affect the care that eases pain. For example, you would continue to receive oxygen and medical care, including pain medication, spoon-feeding, and being turned over in bed. Your doctor is required to provide comfort care as long as they feel it is medically appropriate.

Good job. You have taken the first step. Put your documents in a safe place, notify your executor where the documents have been placed, and be at ease that you have put things in order if the unprecedented happens. Remember, if you need to change your documents, you can! Simply contact your estate planning attorney to set up a meeting to make any changes you may have.