Estate Planning and Probate

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Legal Aid assists low-income people with estate planning and probate questions.

This work includes help with documents like advance directives, health care powers of attorney and wills.

Legal Aid frequently hosts clinics focused on estate planning issues.  Click here to check Legal Aid’s calendar of events to see upcoming estate planning clinic details.

Additionally, click here for some self-help materials on Advanced Directives and Health Care Powers of Attorney.

 

FAQs

What is an ABLE account, and how does it help people with disabilities? Close

Ohio launches first-of-its-kind saving and investment account for people with disabilities to pay for qualified expenses without jeopardizing eligibility for benefits – Achieving a Better Life Experience (ABLE) account program.

The ABLE Act of 2014 is federal legislation that authorizes states to establish accounts for people with disabilities that are tax exempt and are not counted when determining eligibility for means-tested federal programs. Ohio is calling its program the State Treasury Achieving a Better Life Experience (STABLE) program.

The accounts will allow people with disabilities to save and invest without losing eligibility for benefits. The STABLE program is open to anyone across the country who meets eligibility requirements, though the fees are higher for people who live out of state.

Ohio residents will pay $2.50 per month to maintain the accounts, while residents of other states will pay $5 per month. Participants can use the money from the account for qualified expenses, including education, health care, housing and transportation.

Participants will be able to choose between five different investment strategies that range in risk levels, including a banking approach that offers no risk and is backed by the Federal Deposit Insurance Corporation.  For more information, see http://www.stableaccount.com/.

Are Wills Really That Important? Close

When my mother died in 2012, we discovered that her will was from 1959 and had not been updated to reflect the many changes in her life since then: she had four more children, she bought a house, furniture, an automobile, jewelry, and a dog. As a result, my mother died without a valid will. Following her death, bills had to be paid, property sold, her furniture, jewelry, the car divided, and someone had to take in the dog.

A valid will would have settled all of the “who gets what” questions, and it would have made the administration of her estate truly reflect my mother’s final instructions to us — her kids. A will would have saved us money as we could have probated her estate without having to post a bond. My mother could have picked whom she most trusted to administer her estate, to pay the bills, and to make decisions with regard to the sale of her house and her household goods, etc. Most importantly, a valid will would have given my mother control over who received special personal items and valuables, gifts that are often remembered most fondly. But, because she died without a valid will, the court chose the administrator to make these decisions.

What is so important about a will?

  • Wills allow you to name whom you select to be the guardian of your minor children following your death. If you have minor children or children that are disabled and will need future care, this is exceptionally important. Without a will, the court will decide among family members or a state-appointed guardian.
  • Wills can provide instructions regarding whom you specifically do not want to inherit from your estate. Without these specific instructions, a person you do not want to benefit under your estate automatically may be entitled to inherit from your estate under the law.
  • Wills limit the opportunity for conflict between beneficiaries (and those who want to be beneficiaries).
  • Wills outline how you would like your property and assets to be distributed following your death. (the “who gets what, when, and where”)
  • Wills allow you to pick the person whom you most trust to carry out the administration and distribution of your estate.
  • Wills limit the court from deciding what should happen to your assets after they die.
  • Wills avoid a long probate process, substantial court involvement, and save the estate money.

How do I make a will?
The best option if you need a will is to seek assistance from an attorney. For eligible clients, Legal Aid will prepare a will. Call 1-888-817-3777 to apply. Others can find names of attorneys who prepare wills by calling the local bar association attorney referral service. Lastly, you can complete forms online without help from an attorney. See a simple will form for Ohio at http://www.proseniors.org/pamphlets-resources/ohioonline-legal-forms/. ProSeniors also has a telephone hotline (800-488-6070) to assist low-income seniors with legal questions.

Wills requires us to think about our death — which is uncomfortable. But in making a will, we can protect and provide for those we love following our death. Wills, while allowing us to express our final wishes, most importantly serve to greatly benefit our loved ones by providing them with clear direction through their difficult grieving process following our deaths.

This article was written by Kate Fenner and appeared in The Alert: Volume 33, Issue 1. Click here to read a full PDF of this issue!

Should you purchase prepaid funeral arrangements? Close

Many people do not like to think about death or funeral arrangements, but some people do make plans for when they pass. For example, some people choose to purchase “pre-paid funeral contracts.” These contacts allow you to make decisions about your own funeral, and pay for it ahead of time.

These pre-paid contracts give some people peace of mind. But before purchasing such a contract, keep the following issues in mind.

First, under Ohio law, a pre-paid funeral contract must always be in writing. Do not hand over any money if the funeral director does not give you a written contract. The written contract must include a statement of the funeral services you have purchased.

Second, a funeral contract can either be “guaranteed” or “nonguaranteed.” Under a “guaranteed” contract, the funeral home guarantees to provide the funeral services you’ve chosen for the amount you paid at the time. It will not matter if the price of the services increases later on. The funeral home cannot ask your family for any more money.

However, a “non-guaranteed,” contract is different. In that case, the funeral home can hold on to your money and refuse to perform the funeral services you asked for if the money you paid is not enough to cover the cost at the time you pass away. The written contract must tell you whether the contract is “guaranteed” or “non-guaranteed.” Always be sure to ask which one it is.

Third, you can cancel any contract for pre-paid funeral services for seven days after you make the contract. After those first seven days, you can only get your money back if it is a “revocable” contract. (Even if your contract is revocable, a funeral home often can keep some percentage of the money paid.)

Other people want their contract to be “irrevocable” — meaning they cannot cancel it after those first seven days. In fact, if you are buying a pre-paid funeral contract to spend down your assets to qualify for Medicaid, the contract must be irrevocable. The written contract must also tell you whether the contract is “revocable” or “irrevocable.” Always be sure to ask which one it is.

When considering a prepaid funeral contract, be sure to get all the information and read the documents carefully. Do not sign anything until you are certain it gives you the benefits you are paying for.

This article was written by Rebecca Maurer and appeared in The Alert: Volume 33, Issue 1. Click here to read a full PDF of this issue!

How do I name a Durable Power of Attorney? Close

A durable power of attorney can be one of the most helpful estate planning tools a person uses, but it can also be very risky. A durable POA gives a person (who is called an “attorney in fact”) legal authority to act for another person in a variety of matters, including banking, benefits, housing, taxes, real estate, litigation, and more. (The durable POA is different from a Health Care Power of Attorney, which is the form used to appoint a person to make decisions about health care.)

A power of attorney can be limited or very broad in scope depending on what is needed. A properly written and executed durable POA can give someone a great deal of power over another person’s affairs, and should be carefully considered. Executing a power of attorney does not take away the ability of the principal — the person signing the power of attorney — to continue to conduct his own affairs.

When deciding who to name as “attorney in fact,” consider four things about potential people:

1) Trust. The person named in a POA must be trusted to do what the principal wants and needs. The “attorney in fact” must not use his authority to take advantage of the principal and cannot exceed the authority given to him.

2) Competency. The attorney in fact must be capable of handling the tasks the principal needs done. A person who must handle a complicated tax matter needs a different level of competency than someone who needs to make sure the rent is paid each month.

3) Capacity. The needs of the principal may change over time. The attorney in fact should have the time, energy, and willingness to help the principal as different situations arise.

4) Communication. The principal and the attorney in fact should be able to communicate clearly with each other. The principal needs to give directions about what she wants done under different circumstances, and the attorney in fact should be honest about what she is willing and able to do.

Ohio’s “power of attorney” form, along with tools and resources to help fill it out, can be found at http://www.proseniors.org/824-2/. The POA form should be signed before a notary. The POA must be given to anyone or any institutions asked to rely on it, such as a bank or landlord. The POA lasts until the principal dies or says the power of attorney is no longer in effect. The POA must be recorded with the county if used for any transactions involving real property.

Older adults and people with disabilities or serious illness may apply to Legal Aid for help creating a durable power of attorney by calling 1-888-817-3777.

This article was written by Anne Sweeney and appeared in The Alert: Volume 33, Issue 1. Click here to read a full PDF of this issue!

Who Needs Advance Directives? Close

Advance directives help ensure that you receive the medical care you would want even when doctors and family members are making decisions on your behalf. There are two different types of advance directives: Health Care Power of Attorney and Living Will.

Health Care Power of Attorney: This document allows you to legally appoint a person to make health care decisions for you if you lose the ability to make your own decision, even if the period of disability is temporary. It is important for you to discuss how you feel about important health care treatments so that the person to whom you assign this responsibility understands your wishes and is comfortable with the role.

Living Will: With this document, you specify whether or not you would want life sustaining treatment in the case that you are unable to make an informed medical decision and you are in a terminal condition or a permanent unconscious state. You may also specify your wishes regarding organ and tissue donation in this document.

To start the advance directive planning process, speak with your doctor about the types of health care decisions that could come up in your future. Consider what is important to you and your family. Once you feel confident about your wishes, you need to complete legal forms. Your local area agency on aging can assist you in finding the correct documents. Alternatively, you can seek help from a lawyer to complete the documents. Low-income older adults and people with disabilities or serious illness can apply to Legal Aid for help by calling 1-888-817- 3777. You can also use this online interview tool, which will help you create your own Living Will or Health Care Power of Attorney (https://lasclev.org/selfhelp-poa-livingwill/).

After completing your advance directives, give a copy to your doctors, and make your family and close friends aware of where you keep a copy. Also give copies of the directive to the person named as your Health Care Power of Attorney. It is never too early to start planning, and remember to review your advance care planning decisions at least every 10 years.

This article was written by Emily Depew and appeared in The Alert: Volume 33, Issue 1. Click here to read a full PDF of this issue!

Self Help

Do you want an Ohio Health Care Power of Attorney or Living Will?
The website link described here will take you to a
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The Campaign for Legal Aid
Steady growth in donor support through The Campaign for Legal Aid extends Legal Aid’s reach in Northeast Ohio.

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www.ExtendJustice.org

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Working together to #ExtendJustice
Our leadership with The Campaign for Legal Aid will extend the reach of justice to more families in Northeast Ohio.

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www.ExtendJustice.org

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Housing Justice Alliance
The Campaign for Legal Aid will support the Housing Justice Alliance - and we'll be the first community in Ohio to create a right to counsel when someone's home is at risk.

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www.lasclev.org/HousingJusticeAlliance

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