Probate Problems: How to Steer Clear of Probate Court

Many people have been told that it is important for people to “avoid probate.” But just because people may have heard that term, doesn’t mean they know exactly what probate means, why it can be a problem or how to successfully avoid it. In this post, we will take a look at the term probate to understand exactly what it means, and what the process includes.


What is Probate?

The term probate most literally means “to prove” a will. Today it covers the entire legal process necessary to settle a person’s estate after they die. The appointed representative (usually a family member) opens the probate case in court. With the court’s help, they will work through all of the financial business that the decedent left behind. For example, probate includes disposing of personal property, money, real property or anything else that the deceased owned at the time of their death. Probate also deals with any debts that were in existence at the time of death.

Why is Probate Such a Negative Thing?

Probate is not inherently evil. It is simply a system that was created to oversee the way estates are handled. However, there is some truth when people say that probate should be avoided, if possible. Some of these cons are listed below.

A Lack of Privacy

Probate cases are filed in the court and are in the public record. If for any reason a person wants to maintain a sense of privacy after they die, it could be a good idea to avoid probating the estate in court. Famous people or other potentially controversial people usually don’t want their financial and family affairs dragged out into the open.

Probate Can Create Family Disagreements

One reason that wills and estates are probated in court is to allow interested persons the chance to represent their own claim on the estate by challenging or contesting a will that does not favor them. For people with complicated family dynamics, unpopular second marriages or estranged loved ones, avoiding probate should be a top priority. When an estate is handled through non-probate channels, it becomes much less likely that a will may be successfully challenged.

Probate is Slow

Like most things that end up in court, probate can be time-consuming. In more complex estates, the entire process can last months or years. And, while the family waits for this time to pass, the decedent’s assets or property may be slowly losing value or be lost completely.

Probate is Costly

Probating an estate requires the help of a competent probate lawyer to facilitate the matter. Since the process requires court appearances and extensive paperwork, the legal fees can mount up quickly. With proper pre-planning, much or all of this cost may be avoided.

How Can Families Prevent the Need for Probate?

Creating a smart estate plan is the best way to avoid probate. You and your attorney can work together to draft the proper legal documents and carefully time asset transfers.

Revocable Living Trust

The revocable living trust is an instrument which dictates the management or distribution of property. The property is transferred in title to the trust during the owner’s lifetime. The property owner also chooses someone to act as trustee, an appointed fiduciary who will manage the trust property and any distributions after the death of the trust’s creator.

The other good thing about a trust is that there is no need to involve the court in any way. There is nothing to file and it does not need to be submitted to the probate court.

Joint Title

Another way to avoid probate hassles is by placing your assets into joint ownership with your future beneficiaries. This way, when you pass away, the ownership interest will automatically transfer to the joint owner.

Payable-On-Death and Transfer-On-Death

Payments on death accounts (POD) have a designation which names a person who will receive the assets in the account when the original account owner dies. At the same time, transfer on death (TOD) is a designation on the title or deed to a piece of real estate or a car which will automatically change ownership once the owner dies.

Don’t Be Tempted to Give Away Your Assets

Some people assume that the easiest way to avoid probate is to give everything away before you die. However, doing this could cause problems for seniors when they may need to qualify for assistance for long-term care.

Hopefully, these tips will help you and your family plan responsibly for the future. Contact a qualified estate planning and elder law attorney today. 

What are Advanced Directives? And Do I Need Them (Part III)


Part 1, Part 2

The "Other" Advanced Directives

Health Care Powers of Attorney and Living Wills aren’t the only Advanced Directives. In this installment we’re going to discuss Do Not Resuscitate Orders, HIPAA Waivers, and Declarations of Mental Health Treatment.

What is a Do Not Resuscitate Order?

A Do Not Resuscitate Order (or “DNR”) is an order stating that you do not want Cardiopulmonary Resuscitation (CPR) or Advanced Cardiac Life Support (ACLS) performed on you. If a DNR is in place and your heart stops, medical personal will not restart your heart under most circumstances. They also will not intubate (insert a breathing tube).

How is a DNR put in place?

Unlike the other documents we’ve discussed, a DNR is a not a document drafted by your attorney. It’s an order made at the hospital and included in your medical records. If you wish for a DNR to be put in your file, you’ll need to let hospital personnel know that is your wishes. 

Your Living Will specifies that if you’re terminally ill or permanently unconscious, a DNR should be issued, but the Living Will itself is not a DNR. Likewise, your Health Care Power of Attorney empowers your agent to ask that a DNR be issued, but is not a DNR itself.

What is a HIPAA Waiver?

A HIPAA Waiver is a document permitted individuals you name to access your health records. “HIPAA” comes from the federal medical records privacy law called the Health Insurance Portability and Accountability Act of 1996. That law requires medical care providers to keep health care records confidential except in limited circumstances. 

Do I need a HIPAA Waiver?

Most Health Care Powers of Attorney include a HIPAA Waiver, so you may be tempted to think that a standalone HIPAA waiver isn’t necessary. But recall that a Health Care Power of Attorney doesn’t work until you’re unable to make health care decisions for yourself. So if you’d like to allow someone to access your health records even if you’re still able to make decisions for yourself, a HIPAA waiver is a good thing to have.

For example, if you’re recovering from surgery and need your daughter, spouse or another person to pick up mediation from a pharmacy and speak with the pharmacist about your medical condition and the drugs they’re picking up for you, a HIPAA waiver will allow them to do that. Without it, the pharmacy will likely allow them to pick up your medication but will not discuss it with them, other than to give basic information to them.

What is a Declaration of Mental Health Treatment?

The State of Ohio allows for an additional advanced directive that is not as common as the others. A Declaration of Mental Health Treatment describes your preferences for mental health treatment and appoints someone to make mental health treatment decisions for you if you’re unable to make your wishes known.

Although a Health Care Power of Attorney does cover mental health treatment, it is a general document that doesn’t offer an opportunity to provide guidance on mental health issues.

Do I Need a Declaration of Mental Health Treatment?

If you have been diagnosed with a mental illness or believe you may end up in a circumstance where the declaration will be helpful, you should consider putting a Declaration of Mental Health Treatment in place. For instance, if you have received a dementia diagnosis or believe you may be at risk for Alzheimers or other dementia, you should speak with your estate planning attorney about putting a Declaration of Mental Health Treatment in place. 

How does a Declaration of Mental Health Treatment work if I have a Health Care Power of Attorney and Living Will?

Your Declaration of Mental Health Treatment overrides your Health Care Power of Attorney regarding mental health issues; however, your Living Will controls over your Declaration of Mental Health Treatment if you are terminally ill or permanently unconscious.

If this has created a need to learn more about Advanced Directives and if you need them, give us a call and schedule a time to sit down with one of our attorneys for an honest, no-cost assessment. We can be reached at or 937-985-1843.


What are Advanced Directives? And Do I Need Them? (Part II)


Part 1

Who makes decisions for me if I don’t have a Health Care Power of Attorney?

There’s a pretty clear answer when it comes to end of life decision-making. The answer isn’t so clear when it comes to decision-making when you’re unable to make your wishes known but aren’t terminally ill or permanently unconscious.  

Ohio law gives us a list of people who can make end-of-life decisions for us. Your doctors will start at the top and go down the list until they find someone to make the decision:

1.      Your guardian (for minors and anyone over the age of 18 who has had a guardian appointed);

2.      Your spouse;

3.      A majority of your adult children;

4.      Your parents;

5.      A majority of your siblings; and

6.      The nearest adult who is related to you by blood or adoption.

As an example, if Marge’s doctors conclude that she’s terminally ill and can’t make her wishes known, they’ll start at the top of the list and work down. Marge doesn’t have a guardian, so they move to the next line. Likewise, she doesn’t have a spouse or children, and her parents died many years ago. Marge does have a brother and a sister that the Doctors are able to locate, and because both her brother and sister agree to remove life sustaining treatment, the Doctors will follow their wishes.

When can my family (or guardian) make a decision to remove life sustaining treatment?

Your family (using the list above) can remove life sustaining treatment if you’re terminally ill, can’t make your wishes known, and don’t have a Living Will. 

If you’re permanently unconscious, the situation is a little more complicated. Doctors can only end life sustaining treatment in that case if you’ve been permanently unconscious for a period of at least 12 months. You read that right. Under Ohio law you’re going to be kept alive for at least 12 months if you’re permanently unconscious, but not terminally ill, and didn’t sign a Health Care Power of Attorney. 

If you have a Living Will, you can be removed from life sustaining treatment if your physician and one other physician agree that you’re terminally ill or permanently unconscious. 

What does it mean to be terminally ill?

You're “terminally ill” if you have an “irreversible, incurable and untreatable condition caused by disease, illness or injury.”

What does it mean to be permanently unconscious?

You’re “permanently unconscious" if you have an irreversible condition in which you are permanently unaware of yourself and your surroundings. 

How do family members make a decision to remove life sustaining treatment if I don’t have a Living Will?

They must make the decision in writing.

What if all my children aren't immediately available to make a decision?

If you’re terminally ill or permanently unconscious and the decision whether to remove life sustaining treatment has fallen on your children, doctors must make “a good faith effort,” and use “reasonable diligence,” to notify all your children before removing life sustaining treatment. 

What if my family members disagree about my care?

It depends on the situation. By law, the hospital can defer to your Living Will if you are terminally ill or permanently unconscious. If you’re not in either state, and have a Health Care Power of Attorney, your doctors can defer to the judgment of your agent under your Health Care Power of Attorney. If you don’t have a Health Care Power of Attorney or Living Will, your doctor can follow the procedure outlined above for decision-making. 

Unfortunately, in the real world, hospitals often balk at following the wishes of one family member if another is dead set again the action—even if the family member is legally entitled to make a decision. Hospitals are very risk averse and once a person has passed away, there’s no fixing a mistake. For that reason, the hospital may decline to act, leaving family members to either reach agreement or petition a court to order the hospital to follow the instructions of the person with the legal right to make the decision.

Who makes medical decisions for me if I’m not terminally ill or permanently unconscious?

The law isn’t so clear about the list of people who can make medical decisions for you if you’re not terminally ill or permanently unconscious. 

The law states that the patient’s “natural or court-appointed guardian” may consent to a procedure if the patient cannot do so him or her self. If no there isn’t a guardian, because the patient isn’t incompetent and is over the age of 18. Medical treatment decisions can be made by the chief clinical officer and attending physician at the hospital, but Ohio law doesn’t give a list of family members who can consent to treatment. 

As a result, if you don’t have a healthcare power of attorney and can’t consent to a medical procedure yourself, you may end up having a stranger at the hospital (albeit a doctor) make decisions for you and not your family. 

That’s why we recommend everyone over the age of 18 have a Health Care Power of Attorney. College students who don’t have much in the way of assets may not seem like good candidates for estate planning, since they often have little need for a will. But without a Health Care Power of Attorney in place, even their parents may run into a brick wall when it comes to medical decision-making. Everyone from 18-118 should have a Medical Power of Attorney. 

If this has created a need to learn more about Advanced Directives and if you need them, give us a call and schedule a time to sit down with one of our attorneys for an honest, no-cost assessment. We can be reached at or 937-985-1843.

What are Advanced Directives? And Do I Need Them? (Part I)


What are Advanced Directives?

“Advanced Directive” is the general term given to legal documents that make your wishes known regarding your health care. The basic advanced directives are the Health Care Power of Attorney, Living Will, HIPAA Waiver, and Declaration for Mental Health Treatment.

What’s a Health Care Power of Attorney, and do I need one?

A health care power of attorney lets you choose a person to make medical decisions for you if you can’t make them yourself. Without a heath care power of attorney in place, Ohio law will make the decision for you. 

The person you name to make medical decisions for you is called your “Agent.”

Do you need one? It depends whether you like the vague Ohio rules and understand how they’ll affect you if you can’t speak for yourself. We discuss the rules for who makes medical decisions if you don’t have a Health Care Power of Attorney in Part II of this article. 

What’s a Living Will, and do I need one?

A living will says how you want your care handled if you’re permanently unconscious or terminally ill and can’t make your wishes known. 

What does it mean to be terminally ill?

You're “terminally ill” if you have an “irreversible, incurable and untreatable condition caused by disease, illness or injury.”

What does it mean to be permanently unconscious?

You’re “permanently unconscious" if you have an irreversible condition in which you are permanently unaware of yourself and your surroundings. 

Who decides whether I’m terminally ill or permanently unconscious? 

Your physician plus one other physician.

How’s a Living Will different from a Health Care Power of Attorney? 

A Living Will covers only end of life decision-making, where a Health Care Power of Attorney deals with medical decision that need to be made anytime you can’t speak for yourself. The other big difference between the two is that the Living Will doesn’t appoint someone to make decisions for you, it tells medical personnel what to do.

Do I need a Living Will?

That’s entirely up to you. If you have a Health Care Power of Attorney and choose not to have a Living Will, decisions about your end-of-life care will be made by the person you name in your Health Care Power of Attorney. 

If you have a Health Care Power of Attorney and a Living Will, your agent will make decisions for you until you’re terminally ill or permanently unconscious. At that point, your Living Will takes over and instructs doctors how to handle your care.

How do I put a Health Care Power of Attorney and Living Will in place?

The State of Ohio publishes Health Care Power of Attorney and Living Will forms. Some attorneys recommend that people sign the documents without the assistance of an attorney, but we don’t agree. There’re a lot of very important issues that are affected by the documents, and you shouldn’t take the documents lightly! We believe in counseling our clients regarding these documents. It’s important that you understand exactly what you’re signing and how the documents will affect you should be be unable to make health care decisions for yourself.

Do I need a Health Care Power of Attorney if I have a Living Will?

Yes, except in the rarest of circumstances. Only a person who truly doesn’t have anyone to make health care decisions for him or her could get by with only a Living Will. But if a family member shows up, the hospital just might let that person make necessary medical decisions. So in essence, getting by without a Health Care Power of Attorney is a very serious decision and leaves you without a choice about who will make decisions for you. A person in that situation should make absolutely sure there’s no one in his or her life to name as Agent.

If this has created a need to learn more about Advanced Directives and if you need them, give us a call and schedule a time to sit down with one of our attorneys for an honest, no-cost assessment. We can be reached at or 937-985-1843.

You Can Have Your Cake & Eat it Too (Part 4: The Story of Two Friends)


Part 1, Part 2, Part 3

What about a Trust?

Marge and Elizabeth’s friend Betty lost her husband about a year ago. Like Elizabeth, Betty didn’t struggle with probate after her husband, Frank, died. In fact, she spent very little time settling Frank’s affairs, other than marking their joint income tax return as “final.”

Then, when Betty died two years later, her 3 children got together, expecting a hassle. But what they soon found out was that, like their mother when their father died, they had very little to do. Betty and Frank’s oldest, Michael, was able to take charge, sell the family home and cars, pay a couple of bills and then distribute all the remaining cash and investments equally to all the siblings. 

Although Betty’s youngest daughter, Vivian, desperately wanted her siblings to hold off on selling the house as she tried to convince her husband to move their family into the home, she wasn’t able to hold up the process. Everything was distributed as per Betty and Frank’s instructions in less than 4 months’ time. The family incurred less than $2,500 in expenses settling their mother’s (and father’s) affairs.

Betty and Frank used a living trust to avoid all of the problems that plagued Marge and Elizabeth’s families’ estates experienced at each generation. 

You can think of a trust as a container for holding assets. You carry the container (your trust), and then when you can’t handle your finances yourself, you hand off the trust to a person you chose ahead of time—called your successor trustee. 

Your successor trustee can manage your assets for you while you’re alive but unable to handle things yourself and can also take over after you pass away.

Your trust doesn’t require probate court involvement, and your successor trustee has the final word about management, which means your family won’t run into a situation where one siblings holds up sale of a house or other property. 

Trusts also protect beneficiaries against themselves. In Betty’s case, her second daughter, Lucy, is terrible with money, still overspending despite having filed for bankruptcy twice. If a share of Betty and Frank’s money had simply passed to Lucy, there’s no doubt she’d have spent it within six months. But instead of cutting a check to Lucy when the kids were receiving their shares, Betty’s successor trustee held onto Lucy’s share, distributing it only as instructed in Betty and Frank’s trust.

If this story has created a need to learn more about Trusts and whether your or your loved one's estate planning is adequate, give us a call and schedule a time to sit down with one of our attorneys for an honest, no-cost assessment. We can be reached at or 937-985-1843.

Selling Your Childhood Home (Part 3: The Story of Two Friends)

The Downside of Transfer on Death Designations

Part 1, Part 2

Let’s change Phil and Marge’s situation and assume that, in addition to recording a joint and survivor deed, they also recorded a Transfer on Death Affidavit naming their children as beneficiaries on their house. Now, after Phil and Marge both pass away, their children own the property together—each is 50% owner. 

Great, right? Phil and Marge planned ahead, avoided probate, and their bank accounts have been split evenly between their children, who are equal owners of their home.  

Marge and Phil's children get together a few days after the house is transferred to them. Amy, the older of the two talks to her younger sister, Fran, about some minimal upgrades they can make to the property to increase its value. Fran, who spent her entire childhood in the house, is uneasy with the idea of selling and talks in general terms about buying her sister out. 

Unfortunately, Fran’s credit is bad after her divorce and subsequent foreclosure, so she can’t get a mortgage to buy out her sister. Amy insists on a sale. The sisters’ relationship deteriorates over the next six months and they spend their first Thanksgiving apart since Fran was born.

As you can see in this instance the problem with Transfer on Death designations is that there’s no one left to manage your assets after you die. Without centralized management of your property, beneficiaries who receive property together all must agree before any decisions can be made about the property—selling, updating, renting all must be approved by all the owners, whether there are 2 or 5.

Amy’s insistence on the sale isn’t going to get her anywhere. Fran can obstruct a sale as long as she’d like, forcing the property to sit empty. 

When one beneficiary will receive real estate, a Transfer on Death Affidavit may be an efficient mechanism for passing property after death. For two beneficiaries, the arrangement can result in a statement. And for three or more beneficiaries, a Transfer on Death Affidavit nearly guarantees problems for the beneficiaries.

The other problem with not having centralized management is that there’s no one left to pay your debts.

There are fewer problems when bank and investment accounts are transferred to beneficiaries through a Transfer on Death designation, since accounts are split between the beneficiaries. But other problems can develop. For instance, if all of a person’s assets are distributed Transfer on Death, there is not a pool of assets that can be used to pay the deceased person’s debts. 

Your creditors can go after the assets you passed to your beneficiaries. If a creditor can’t find one or more of your beneficiaries, the remaining beneficiary or beneficiaries will be on the hook. Your beneficiaries can, in essence, take the money and run. 

If this story brings up questions about what your beneficiaries will get, when they will get it, and what they will have to do to get it, give us a call and schedule a time to sit down with one of our attorneys for an honest, no-cost assessment. We can be reached at or 937-985-1843.


Transfer on Death Designations (Part 2: The Story of Two Friends)

Part 1

What about Transfer on Death Designations to Avoid Probate?

Let’s assume that Marge and Phil’s deed was joint and survivor. 

When Marge passed away many years after Phil’s death, her children got together to figure out what to do about her things, including the house. It turned out that, apart from recording an Affidavit of Surviving Spouse, Marge didn’t take any other action regarding her house. 

Her children discovered that, because Marge died without a living joint owner, her home (and other assets) could only be distributed to her children through probate.

Marge wanted to avoid probate, knowing it was a tedious process, but she wanted all three of her children to share equally in the house after her death, and didn’t want to make all three of her children joint owners of the home with her.

Was Marge’s only option to avoid probate to make all three of her children joint and survivor owners of her home with her? No. Marge had another option.

If you name another person as joint owner of your real estate, you can’t take that gift back. They are owners of the property with the same rights as you! And this doesn’t just apply to real estate; it works that way with bank accounts as well. Parents often name one or more children as joint owners of their home (or bank account) in the hopes of simplifying their lives avoiding probate, but what they don’t realize is that their “gift”—whether they intended to make a gift or not—can’t be taken back, and the child named as co-owner of the home or account has no obligation to share the property with anyone else. It doesn’t matter what your will says. When you pass away, your joint owner gets the real estate or account.

What about Real Estate?

For real estate, you can sign a Transfer on Death Designation Affidavit, naming your desired beneficiary or beneficiaries. Then, after you pass away, your designated beneficiaries take over ownership of the property without having to deal with the tedious probate process. And a Transfer on Death Designation Affidavit doesn’t transfer anything to anyone until you’ve passed away. Unlike a deed, you have a right to change your Transfer on Death Designation Affidavit at any time before you pass away.

In Marge’s case, there were two options:

1. Marge and Phil could have signed a TOD Affidavit while Phil was still alive, naming their three children as beneficiaries of the property. Then, after Phil passed, the survivorship deed would have passed the property to Marge, and then on Marge’s passing, the property would have passed to their three children through the TOD Affidavit. No probate. No mess.

2. Marge could have signed a TOD Affidavit naming all three children as beneficiaries of her house after Phil passed away. Then, after Marge passed away, her children would become equal owners of the property.

The same principle applies to bank and investment accounts. Rather than naming children or other intended beneficiaries as co-owners of an account, you can name your children as Transfer on Death Beneficiaries of your accounts. And accounts are even easier to deal with than real estate. Your financial institution will provide you with a form for naming beneficiaries.

If you are unsure of your options and whether your or your loved one's estate planning is adequate, give us a call and schedule a time to sit down with one of our attorneys for an honest, no-cost assessment. We can be reached at or 937-985-1843.


The Story of Two Friends (Part 1)

Myth Buster: My House Will Have to Go Through Probate When I Die

Robert and Phil are brothers. Both are married and have 3 children. Both own a home worth about $150,000 and both have about $125,000 in savings. 

Robert and Phil died within 3 months of each other. 

Elizabeth, Robert’s widow and Marge, Phil’s widow got together about 3 months after Phil’s death. 

Elizabeth was confused and unsure what to do next. “I figured that since we were married, everything would be taken care of after Robert died. But I’m spending hours a day trying to get everything figured out. I couldn’t believe it when I found out that I had to go to court to get our house put in my name. How did you handle it all?”

Marge was a bit unsure how to respond. Her experience was nothing like Elizabeth’s. 

It turned out that Elizabeth had hired an attorney, spent thousands of dollars and now, six months after her husband’s death, it looked like the process was just winding down.

Marge’s experience after Phil’s death was quite different than Elizabeth’s experience after her husband died. Although she did hire an attorney to make sure she didn’t miss anything, she spent hundreds and not thousands. And settling her husband’s affairs had taken about a month instead of six.

Why the disparity between Marge’s and Elizabeth’s experiences after their husbands’ deaths?

The difference came down to planning. Both Marge and Elizabeth grieved. But during the grieving process, Elizabeth was embroiled in months of unnecessary hassle and spent thousands of dollars in fees because her and her husband hadn’t spent a little time and money putting a plan in place while they were able. Remember, Probate Courts oversee the administration of a deceased person’s estate. By keeping your house out of your estate you can avoid probate.

What about Joint Ownership with a Right of Survivorship? Will that avoid Probate?
When Marge and Phil purchased their home 10 years before Phil’s death, they both signed a deed that included their names, “Philip C. Black and Marge E. Black, a married couple.” 

About a year before Phil’s death, Marge and Phil went to their attorney’s office to review their estate plan and were informed that their deed was not a “Survivorship Deed.” Their attorney explained that a Survivorship Deed must include some “magic language” in addition to their names: “Philip C. Black and Marge E. Black, a married couple, and to the survivor of them.” 

Unfortunately, without the magic language “and to the survivor of them”, when one spouse passes away, the other does not automatically receive ownership of the deceased spouse’s part of the property. If that language is included, as it was in Marge and Phil’s deed, the surviving spouse receives the property without probate court intervention. A simple document called an Affidavit of Surviving Spouse must be filed with the county recorder, and the surviving spouse is recorded as the sole owner of the property.

The deed for Elizabeth and Robert’s home was either owned by Robert alone or it was owned by both spouses, and the deed did not include survivorship language. In either case, Elizabeth’s only recourse was to ask the probate court to transfer the property into her name alone. 

Any time a court is involved in any process, there are going to be delays and significant expenses. We won’t get into the intricacies of probate here—they’d require a 500 page book. The important thing to note is that the 6 or so words were of survivorship language missing from Elizabeth’s deed cost her thousands of dollars and 6 months of unnecessary stress. 

But what about the couples’ bank accounts? 

As with a home, joint ownership with a right of survivorship prevents a bank or investment account from passing through probate as long as the other joint owner survives the other owner.

This section is titled “Joint Ownership with a Right of Survivorship Avoids Probate… Sometimes” because of the final clause in that last sentence. If neither joint owner is alive, the survivorship language does nothing, and the property will become part of one (or both) of the joint owners’ probate estates. That’s the downside to joint ownership with a right of survivorship. It only avoids probate for so long. 

If this story brings up uncertainty whether your or your loved one's estate planning is adequate, give us a call and schedule a time to sit down with one of our attorneys for an honest, no-cost assessment. We can be reached at or 937-985-1843.

Does the "P" in your Problem stand for Probate?

What’s Probate?
When you pass away, your county Probate Court oversees the gathering up of your assets, payment of your bills, and distribution of anything left over. 

Why is Probate a Big Deal?
Probate is a problem because:
1.    The process is public. Anyone can see the court files and figure out how much you had and who it's going to. Do you want the public to know how much your spouse and kids are getting when you're gone?
2.    Probate is expensive. The fees and other expenses of probate typically come to between 2% and 5% of the value of your assets! Put another way, if you have $1 million in savings, your home equity, and a business, your estate will pay between $20,000 and $50,000 in expenses after you're gone!
3.    Probate is long. Probate takes no less than 6 months and the process often extends over a year. Your loved ones will have to wait to receive your gifts until the process is over. 

How can you avoid Probate?
Probate Court only oversees property you owned in your individual name. Jointly owned property, property with a living beneficiary named, and Trust property won’t go through Probate. So naming beneficiaries on your accounts will keep those accounts out of Probate. You can even name a beneficiary/beneficiaries on your house using a document called a Transfer on Death Designation Affidavit. 

Accounts are easy enough to deal with; they get split evenly between the named beneficiaries, but real estate is another matter. Each of the named beneficiaries owns an equal share of your real estate. And that means that your beneficiaries must agree unanimously before anything can be done with the property. A resistant beneficiary can hold the other beneficiaries hostage until they agree to sell out to the trouble-maker at a bargain price. 

How does a Trust help?
A Trust does the same two basic things a Will does:
1. It appoints someone to handle your property (called your "Trustee")
2. It gives that person instructions for how to handle your stuff.

A Trust is also like a legal "box" that you put your stuff into (your house, accounts, and personal property) to avoid probate. However if you leave something out of the Trust, it’ll have to go through Probate.

Assuming you’ve put everything you own in your Trust, because there's no Probate, your affairs will be kept private. There's no public record of the Trust and no one must know anything about what you own and who’s going to get it after you're gone.

Also, the cost of "settling" a Trust after you die is significantly lower than for administering an estate through Probate, and the process can be streamlined significantly. That way, your loved ones aren't spending tens of thousands of dollars and waiting a year or more to receive what you've given them.

If you're unsure whether your or your loved one's long-term care plan is adequate, give us a call and schedule a time to sit down with one of our attorneys for an honest, no-cost assement. We can be reached at or 937-985-1843.

You Can't Do It All

Staying Sane When Mom or Dad Needs More than You Can Give

I sat in the community room at the nursing home next to someone I love very much. His wife sat at my other side, a look of fear and confusion in her eyes. She'd been at the facility for rehab--a short term stay intended to get a person back on their feet after an illness or injury-but it wasn't looking like she was headed home anytime soon.  A move to the long-term care side of the building was imminent. 

"Don't leave me."

That's not something anyone is prepared to hear the first time; and when you can't stay, when a lack of sleep will affect your ability as a caregiver, when there just isn't any energy left to give no matter how much you want to help, you just have to walk out the door and head to your bed for a few hours rest.

Sure, you could have an orderly drag a cot into the room--and there may be nights where that's exactly what you do-but you can't do that every night.

What should you do when you've hit your limit, when you just have to walk away for a few hours?

1. Don't beat yourself up.  You're human. 

2. Take care of yourself. You aren't going to be any good to anyone if you aren't sleeping, if you aren't eating, if you're so run down you start to wonder if you're losing your mind.

3. Delegate. Don't try to do it all yourself. You can't. You're strong, you're capable of doing more than anyone else to help your parent, but you have to face the fact that you can't do it all. You're also not the person best able to care to all of your parent's needs. It's hard to hear, but there are professionals that can manage parts of your mom or dad's care better than you can. It's hard to hear, but it doesn't have to be you.

4. Do what you do best. But there are some things you can't, and shouldn't, delegate, to professionals. Even the most empathetic doctor, the kindest CPA, the most genuine attorney can't love your parent like you can. The bond you have is deeper than anything that'll form in the months (or even years) they're working with your mom or dad. Sure, they'll form tight bonds, and they may even have a lot of affection for your mom or dad, but you and your siblings are the only ones who can love him or her like a child. Don't skimp on being your parent's child to be his or her caregiver. 

5. Call someone. You could use a kind ear right now, and there's no shame in that. If you're angry, if you're scared, if you're sad. Talk to someone about it. Vent.

6. Take a deep breath. Seriously. Stop and take a deep breath-eyes closed. Now do the same thing a few times  day. You're doing everything you can, and your worry isn't going to help anyone, especially not yourself. At the risk of going new age on you, your breath is your connection to yourself, to your body. Don't take it for granted.

Starting Hard Conversations about Long-Term Care During the Holidays

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The holidays are upon us! Time sure flies, doesn’t it?

One of the joys of the holiday season is family get-togethers. As technology has ”shrunk” the world, we’ve moved further from our families, leaving the holidays as one of the precious few times we have with extended family members.

Most of us prefer to spend these times enjoying our loved ones’ company, leaving serious business to the rest of the year, but family get-togethers offer an opportunity many of us won’t have at any other time of the year. Whether we’re keen to admit it or not, we’re all aging, and the younger generations play a crucial role in ensuring that we remain independent and happy  as long as possible.

The unfortunate fact is that most families doing “long-term care planning” are in a crisis situation. While we can make last minute, emergency decisions about where we and our loved ones will live during our golden years, outcomes are always better when we plan. They say you can’t plan for everything, but I believe that we can come pretty close if we act in time.

Planning six months ahead can make a huge difference, and a 5-year plan changes everything. Without advanced planning, many seniors end up in a nursing home long before it’s otherwise necessary or end up losing everything they’ve worked a lifetime to accumulate.

With a plan developed well in advance of long-term care needs, at-home care options as well as independent living and assisted living options that reduce the level of intervention and increased quality of life may be an option. Waiting until the last minute often ensures institutionalizations at a skilled nursing facility.

So what does it take to put a long-term care plan in place? The task can appear daunting, so we’ll break it into 7 steps.

1.       Have the conversation.

The first step is to have the conversation. You won’t know unless you ask. Would your loved one prefer to stay at home as long as possible, or would her or she prefer to move into a smaller living space like an independent living apartment? Does your loved one want to take steps to protect his or her assets from long-term care costs?

2.       Assess where things stand.

Another important step is to assess where things stands now. Have you noticed mom or dad slowing down? Have there been any cognitive changes since last year’s gatherings? It’s the last thing we want to consider, but 1 in 9 Americans age 65 and older has Alzheimers, and 3 in 9 age 85 and older have the disease. Early intervention makes all the difference.

3.       Put a written plan in place.

Putting a comprehensive written plan in place can be overwhelming. Most families don’t know where to begin or even which questions to ask. Professional help from an elder law attorney who is willing and able to put together a comprehensive long-term care plan will remove the uncertainty and get everyone on the same page. Many attorneys offer only documents even if they claim to do “planning.” Be sure your attorney is looking at the big picture.

4.       Visit facilities well in advance of need.

There are a huge number of options for long-term care. Your elder-law attorney should have the experience to steer you toward facilities that will  best serve your needs—and budget. In our experience, last-minute decisions rarely result in optimal living conditions.

5.       Review the plan regularly.

Everyone should understand their roles and its overall objectives. We recommend reviewing your plan at least every three years, but in many circumstances, an annual review is necessary.

6.       Update your plan.

Circumstances change, and your plan should keep up with your evolving family dynamic.

7.       Follow your plan.

If you’ve followed the prior six steps and have a caring advocate at your side, your plan should unfold with minimal confusion and discomfort. You’ve done the hard work ahead of time. It’s time to focus on what’s most important… your FAMILY.  

If you're unsure whether your or your loved one's long-term care plan is adequate, give us a call and schedule a time to sit down with one of our attorneys for an honest, no-cost assement. We can be reached at or 937-985-1843.