What It Means To Die Intestate

What It Means To Die Intestate

Intestate simply means if you die without a Will.

If you have a close relative die without leaving a will, you’ll be faced with some complexities, but you can get through them if you know the rules.

First, it’s important to know how an estate is distributed in the absence of a will. To start with, many assets aren’t passed by will, such as:

  • Life insurance proceeds.
  • Real estate, bank accounts and assets held in joint tenancy/community property with the right of survivorship.
  • Property held in a living trust.
  • IRAs, 401(k)s and retirement plans — assuming a beneficiary was named.
  • Payable-on-death bank accounts.
  • Stocks or other securities held in a transfer-on-death account.
  • Real estate or vehicles held with a transfer-on-death deed or title document.

Ohio State law provides a list of people eligible to fill the role of executor, of which, the surviving spouse is the first choice. Adult children, typically being next on the list, then followed by other family members. In order to be named an executor, you must be bonded by a private insurance company. Section 2109.09 sets forth the bond requirements of an Ohio Executor.

If you’ve been named as executor, you’ll follow the intestate laws for inheritance rules; spouses and blood relatives inherit, and unmarried partners, friends, and charities get nothing.

More specifically, a surviving spouse will receive the largest share while splitting the inheritance with any children. In the case where there are no children, the spouse often receives all the property.

However, there may be exceptions based on state law. More distant relatives will inherit only if there is no surviving spouse and no children. If no relatives can be found, the state will take the assets.

It’s important to note that all states have rules that bar certain people from inheriting, based on past actions. For example,
– someone who is found guilty of criminally causing the death does not profit from it
– a parent who abandoned a child or committed certain crimes against a child cannot inherit from that child

There are exceptions.

Separated couples: if a couple had separated prior to the death of their spouse, or if divorce proceedings had begun, the issue of whether the surviving member is still considered a surviving spouse may have to go before a court.

Common law marriages: The State of Ohio does not recognize cohabitation and/or domestic partnership as a legal marriage, and there is no longer any confusion about same-sex married couples, as their situation is exactly the same as any other married couple.

Children/Stepchildren/Foster children:
– Legally adopted children will inherit under normal circumstances.
– For stepchildren, it depends on the circumstances of the relationship.
– Foster children normally do not inherit.
– Adoption situations can further complicate things. In the case of underage children requiring a guardian, a judge will make that decision.

The bottom line? Working closely with an estate attorney can help greatly in these situations. Contact Chuck Bendig for a free case review.

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How to Choose Your Power of Attorney

How to Choose Your Power of Attorney

One of the most important healthcare decisions you will make is choosing your healthcare power of attorney. Your healthcare power of attorney is someone you choose to make health and medical decisions for you in the event you become incapacitated and are unable to make them for yourself.

Having this legal designation brings peace of mind. However, the decision of who to designate as your healthcare power of attorney is not so simple. We provide detail in this article to help guide your decision.

Healthcare Power of Attorney vs. Legal Power of Attorney

Let’s say that you enter a hospital and learn that you need immediate surgery, and surgery always has risks. Under many U.S. jurisdictions, you may designate a “Healthcare Power of Attorney (POA)” to make medical decisions on your behalf when you are unable to do so. Unlike an attorney-drafted “Legal Power of Attorney”, your delegate’s legal authority is limited to medical decision-making (not finances, administration of the will, etc.). Assigning a Healthcare POA may be done in a hospital setting and just needs two witnesses to complete it. You do not need a lawyer.

However, a Legal Power of Attorney is a more formal document that will have medical as well as legal and financial complexity. This requires a lawyer.

Who Should I Pick as my Power of Attorney?

Most people immediately jump to selecting their spouse, a relative, or a close friend to be their power of attorney, but you can choose anyone you want. Remember, selecting a legal power of attorney is not about choosing the person closest to you, but rather the one who can represent your wishes the best, with a clear mind, when it really matters. You should trust this person completely and feel comfortable discussing your long-term wishes with them.

Your power of attorney has to be willing to follow through even if they disagree. If you feel pressured to change your opinions, then that is a sign that this person would not make a good representative for you. The last thing you need is to deal with family peer pressure or to worry that your wishes may not be carried out. Remember, legal power of attorney can be revoked at any time by serving written notice on the POA.

Characteristics to Look For in a Legal Power of Attorney

Your legal power of attorney will be handling your legal affairs. So, you’ll want to choose someone who either has some experience in that area or has the needed skills to handle those types of decisions. Look for the following characteristics before making your selection.

1.Choose someone who will respond to a call.
Consider where your potential healthcare power of attorney currently lives. Are they in a home they intend to be in the long term or do they move around a lot? For Healthcare POAs, how close are they to you or your preferred hospital? This is important because a power of attorney might need to get to the hospital quickly in an emergency. Therefore, choosing someone who lives out of state may not be the best choice. With modern cell phones, a better question might be ‘Do they pick up and respond to calls from an unknown number?’

2. They should be trustworthy.
It is important to consider the person’s character and values. Ask yourself if this person can be trusted with such a big responsibility. Will they follow your wishes? After all, you’re trusting this person to speak on your behalf and to make decisions that will impact your life.

3. Can they be assertive?
Being a power of attorney is not an easy task, especially when under stress and emotions are running high. Think about their communication style. Are they assertive or passive? Are they able to stand up to other people and hold their ground when needed? You’ll want someone who will not back down when it comes to supporting your wishes, no matter how much pressure they may get from family or friends. This person should be able to communicate clearly without wavering or second-guessing.

4. They should understand the medical process
Your healthcare power of attorney is charged with making healthcare decisions on your behalf. So you’ll want someone who has some form of understanding of how medical processes work. This doesn’t mean that you have to select a doctor or a nurse in the family, just that you’ll need someone who knows how to ask the right questions, especially about medical tests, prognosis, and the overall value of medical intervention. Ideally, you want someone who is willing to research your condition and learn as much as they can about it.

5. They should be articulate
Is your potential power of attorney naturally a calm person who is able to communicate clearly and effectively, even under pressure, or does this person become easily flustered when things get heated or emotional? Would they be able to communicate your wishes clearly and effectively, not only to your family members but to your medical team as well? Pick someone who has strong communication skills. Does it take them a while to get to the point? If this is the case, you may want to reconsider selecting them. In challenging medical situations, your power of attorney needs to be a decisive and strong communicator.

6. Above all else, choose someone that WANTS this role.
Being a power of attorney can be stressful and demanding, and not everyone is cut out to perform the tasks required. When choosing, talk to the person you are considering. Be sure they feel they could serve in this capacity and encourage them to be honest. The last thing you want is for someone to say yes when in reality the role would end up being too overwhelming.

This is your decision and only your decision. When you’re ready to assign a power of attorney or to begin your estate planning process, give us a call and we’ll start the process for you.

Call Chuck Bendig (614) 878-7777

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Making home safer for elderly loved ones.

Making home safer for elderly loved ones.

With loved ones living longer and needing more care, many families struggle with the best way to help an aging relative. Completing a home modification geared towards accessibility and safety can help your loved one maintain independence and enjoy aging in place in familiar surroundings.

While it may seem like an expensive undertaking, there are a plethora of organizations and grants to help cover what Medicare doesn’t.

Contacting Ohio’s Agency on Aging can be helpful, as well as community development departments or local government programs.

Check out grants from organizations such as Rebuilding Together, which is a national nonprofit organization that helps with home modifications to promote safety and independence.

Here are some remodeling suggestions:

1. LIGHTING

  • Install brighter bulbs everywhere. New LED bulbs also reduce power consumption while making it easier to see.

2. DOORWAYS

  • Expand doorways to accommodate walkers, wheelchairs or mobility scooters, which don’t always fit through standard-sized doorways.
  • Adding a wheelchair ramp should be one of the first things on your list, as it eliminates the need to climb stairs to enter the home.
  • Consider replacing doorknobs with lever handles that are easier to grip and don’t require a twisting motion.
  • If your loved one is restricted by a wheelchair, they can’t reach the peephole to see who is knocking. Consider installing a camera for the door(s). There are many to choose from (Google Nest , Ring, Amazon, etc) and it is not essential to use a smartphone. There are easy to use and easy to see displays for the counter or end table.
  • Make sure there is a sturdy rug to prevent slip/fall from wet shoes.

3. STAIRS

  • Unless you move your loved one’s bedroom downstairs and eliminate any need to access the second floor of the house, you will need a stairway lift or at least, carpeted stairs or non-slip treads.
  • If a chair lift isn’t yet needed, be sure there are strong railings at every staircase.

4. FLOORS

  • Remove throw rugs, as they can easily become trip hazards.
  • Replacing flooring with a slip-resistant material such as vinyl, linoleum, bamboo or cork can give good traction while being more forgiving than tile or hardwood if they fall.
  • The 3M company makes traction strips with adhesive backing – just peel and stick. They are available for the interior, exterior, and bathtub/shower applications. You can find them in local hardware stores, Home Depot/Lowes, or Amazon.

5. BATHROOM

  • Adjust the temperature of the hot water heater to prevent burns. On the water heater, there is a knob with temperature markings – keep it beneath 120° F.
  • Install grab bars to help prevent falls.
  • Add textured, non-slip strips in the bathtub and shower.
  • A waterproof seat or chair in the shower can also be a big help.
  • High-profile toilets make sitting and standing easier – again install grab bars.
  • If your loved one is in a wheelchair or uses a walker, consider a pedestal or wall-mounted sink that a mobility device can fit beneath.
  • Consider replacing the sink mirror with one that tilts downward.
    ADA Standards for accessible design

6. KITCHEN

  • Adjust kitchen countertops if a wheelchair is needed so they are able to access them to prepare food.
  • Remove obstructions and trip-hazards (e.g., trash cans, bar stools, etc).
  • Move the contents of the top shelves down to lower shelves to reduce the reach.

It’s important to keep in mind, Medicare or private insurance usually covers medical equipment that’s installed in the home and there are home improvement grants to help with expenses, depending on your income and where you live. You can find more information on the Department of Health and Human Services’ ElderCare.gov website.

Encourage your loved one to update or complete their estate plans. There are really 5 basic estate planning documents:

  1. Will
  2. Durable Power of Attorney
  3. Healthcare Power of Attorney
  4. Living Will
  5. Revocable Trust

It is a great gift to have everything in order when they pass. It can keep your family strong and minimize taxes. Their savings and possessions can help the people that they love.

It starts with a conversation. Call estate planning attorney Chuck Bendig @ 614.878.7777 or visit our website for answers to frequently asked questions and details.

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What happens to her if something happens to you?

What happens to her if something happens to you?

It sounds simple; You just want to give your assets to the people you love in a way that provides for those that can’t provide for themselves and avoids fighting so the family stays strong.

Should I download a Will template or should I meet with a lawyer?

Family structures have gotten pretty complex in the last few decades. With many couples electing to not marry and live together with or without having children, with divorce rates over 60%, and remarriages extending core families, there are lots of horror stories stemming from Wills that weren’t written properly. Loopholes and estate plan ambiguity can provoke your loved ones to contest your Will and file lawsuits to claim what is “rightfully theirs”. Ohio inheritance laws update frequently. Uncle Sam may (but not often) want a piece, how can you minimize the tax? An estate lawyer can be extremely helpful.

What is actually yours to give?

If you’re married, divorced with children, or have contracts (i.e. prenuptial agreements and/or certain trusts), you may have restrictions.

What should your Will include?

Here are a few basics:

Beneficiaries are people you choose to receive real property or personal property in the form of cash or assets. It’s common to name your spouse, children, friends, charities, or other family members.

Executor is the individual who will carry out what’s written in your Will. You can choose whomever you like, but most people choose a responsible friend or family member. If you don’t name an executor, often this job falls into the hands of an administrator who has to pay for a bond.

Parental guardian: If you are caring for young children, it’s important to name the person(s) you want to raise your children should you pass away. Since this is a major life endeavor for the person or people you name, list a few individuals in case one or two of them are not in a position to take on this role at the time of your death.

What should be left out of your Will?

Conditional gifts: You are not allowed to leave conditional gifts, such as bequeathing money to a beneficiary on the condition that they get married, get divorced or make some other life change. Although it may make for a good movie plot, in real life, it’s just not legal.

Final arrangements instructions: Your Will is typically not read until after the funeral, so your requests may not be carried out.

Allocate property to pets: Pets cannot legally inherit any assets. This kind of thing happens more often than you would think! Create a Pet Trust and leave assets in the care of a Trustee for the benefit of your pets.

Should I include a personal note?

You can attach a personal note to your Will as a way to say goodbye to loved ones. It’s a good way to personalize a somewhat sterile document. Some people leave a video.

Your Will may not be the only part of an estate plan. Various trusts can be of enormous help and may have advantages over a Will. You also can leave assets to transfer at death outside of Probate Court. The most important thing is to make sure your Will is as clear as possible so that your wishes are fulfilled correctly.

Contact Estate Planning Attorney Chuck Bendig to get started.

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How Do Pour-Over Wills Work?

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Older Couples Selling Their Homes Can Get Major Tax Breaks

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How a Trust for Minors Works

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How do I make a home safer for my elderly parents?

How do I make a home safer for my elderly parents?

If you have an elderly loved one, making adjustments to their home to make it more accessible is important for safety and independence, even if they don’t live alone. Can you imagine how frustrating it must be to not be able to navigate your own home; how a simple obstruction can keep you from getting in the front door? Below are 7 ways that you can help make a life a little easier and more independent.

1.Ramp

  • a wheelchair ramp should be one of the very first things on your list

2.Lighting

  • Install brighter blubs everywhere. New LED bulbs also reduce power consumption while making it easier to see.

3.Doorways

  • walkers, wheelchairs or mobility scooters don’t always fit through standard-sized doorways; consider widening doorways and entrances
  • replace doorknobs with lever handles.

4.Stairs

  • Unless you move your loved one’s bedroom downstairs and eliminate any need to access the second floor of the house, you will need a stairway lift or at least, carpeted stairs or non-slip treads.
  • strong railings at every staircase

5.Floors

  • remove throw rugs
  • apply non-slip wax to vinyl & wood floors.

6.Bathroom;

  • textured, no-slip strips in the bathtub and shower
  • grab bars near the toilets and in the tub/shower
  • a waterproof seat or chair in the shower
  • a high-profile toilet
  • a pedestal or wall-mounted sink that a wheelchair or walker can fit beneath.

7.Kitchen

  • replace knob-style kitchen faucet with lever style
  • move the contents of the top shelves
  • down to lower shelves to reduce the reach
  • remove obstructions that can trip (trash cans, bar stools, decorations, etc)

Encourage your parents to update or complete their estate plans. There are really 5 basic estate planning documents:

  1. Will
  2. Durable Power of Attorney
  3. Healthcare Power of Attorney
  4. Living Will
  5. Revocable Trust

It is a great gift for a parent to have everything in order when they pass. It can keep your family strong and minimize taxes. Their savings and possessions can help the people that they love.

It starts with a conversation. Call estate planning attorney Chuck Bendig @ 614.878.7777 or visit our website for answers to frequently asked questions and details.

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How Do Pour-Over Wills Work?

How Do Pour-Over Wills Work?

What is a Pour-Over Will? A pour-over will is a last will and testament that transfers all of the deceased person’s property, upon death, into a revocable living trust. Simplifying; a pour-over will directs that all property that passes through the will be transferred...

Older Couples Selling Their Homes Can Get Major Tax Breaks

Older Couples Selling Their Homes Can Get Major Tax Breaks

Susan recently lost her husband, Carl, and is now a widow. They shared ownership of their home with the right of survivorship. In simpler terms, this means that upon the death of Carl (co-owner), the surviving co-owner (Susan) automatically acquires full possession of...

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5 Common Misconceptions about a Power of Attorney

5 Common Misconceptions about a Power of Attorney

MISCONCEPTION #1. A power of attorney can be authorized at any time.

– I received a phone call asking me to draft a power of attorney. The caller said that she had just received certification from her father’s doctor stating that he is no longer competent. “Can you draft a power of attorney and living trust for my dad?” she asked. Unfortunately, I can’t do that. Once someone lacks legal capacity, they can no longer sign any legal document including a power of attorney or living trust, which of course is the purpose of the document. At this point, the only recourse is a guardianship proceeding through the courts, which can be extremely costly and time-consuming.

MISCONCEPTION #2. Power of Attorney documents are all the same. I’ll just download one from the web.

– Everyone’s circumstances are unique. Without guidance from an experienced estate attorney, a generic POA document could expose your estate to legal challenges and interjections. Unfortunately, when problems with a POA are discovered it’s usually too late.

MISCONCEPTION #3. A Power of Attorney grants the agent the right to make any decision that they choose.

– Within a POA the agent has an obligation to make decisions that are in the best interests of the principal. While the POA grants authority, the right to act is based on fiduciary circumstances. If the action is not in the best interests of the principal, the agent does not have the right to act. In fact, many people fear signing a POA because they are concerned that their agent will mismanage their estate. Although the fiduciary obligation offers protection, it is important to choose someone that you trust to be your agent.

MISCONCEPTION #4. There is one standard Power of Attorney; it covers everything.

– It is much more flexible than that. The principal determines what powers to grant their agent in the document, which is why it’s important that it be drafted by an experienced attorney.

  • A general power of attorney governs all powers covered by a power of attorney, such as buying or selling property or otherwise managing one’s assets.
  • A limited or special power of attorney can grant very precise authorizations. For example, a power of attorney can be drafted which only grants the power to conduct a real estate sale.

MISCONCEPTION #5. Only a Durable Power of Attorney survives death.

-All powers of attorney terminate upon the principal’s death. The difference between a regular power of attorney and a durable power of attorney revolves primarily around incapacity.

 

  • A standard POA terminates upon death or incapacity. Once either of those events happens, the POA is invalid.
  • A Durable POA survives mental incapacity, but not death. The agent can act on the principal’s behalf even if the principal is declared mentally incompetent.

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How Do Pour-Over Wills Work?

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What is a Pour-Over Will? A pour-over will is a last will and testament that transfers all of the deceased person’s property, upon death, into a revocable living trust. Simplifying; a pour-over will directs that all property that passes through the will be transferred...

Older Couples Selling Their Homes Can Get Major Tax Breaks

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How a Trust for Minors Works

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