PLANNING BASICS
Last Will and Testament
Your Last Will and Testament directs your Executor, under Probate Court supervision, to gather and inventory your assets, pay your enforceable debts, and make a distribution of assets in accordance with the Will.
Your Will is effective only upon death and acceptance by the Probate Court. It can easily be amended or revoked at any time before death. With few exceptions, only the original of the Will will be accepted by the Probate Court. It is important to keep your original Will in a safe place known to you and the Executors named in the Will.
Probate and Non-Probate Assets
Your Will governs the disposition of “probate assets”. A probate asset, simply put, is an asset without a beneficiary designation. For example, a bank account in John’s name only, upon his death, would be a probate asset. It would be distributed under the terms of his Will, but only after an estate is opened and his Will is admitted to Probate.
Adding a beneficiary designation to John’s bank account is simple: “John, Payable on Death to my sisters Jane and Judy”. John’s bank account is now a non-probate asset, and is paid to Jane and Judy on his death without Probate Court involvement.
If all assets are titled with a beneficiary designation, the expense and delay of Probate is avoided. Your Will then acts as a back-up plan for any overlooked asset.
Transfer on Death Beneficiary for your Home
A Transfer on Death Beneficiary Affidavit for your home is an effective probate-avoidance tool. It is recorded with your county Recorder's Office the same as a deed. Upon your death, your home will be transferred to your designated beneficiary or beneficiaries, without Probate Court involvement. If your home is held by you and your spouse as joint tenants with right of survivorship, then the home will transfer to the designated beneficiary only upon the death of the surviving spouse.
You and your spouse together, or the survivor of you, can revoke or change this designation at any time by a subsequently recorded document. And because the designation is effective only upon your death, your ability to sell your home is unaffected.
Payable on Death Beneficiary for Bank Account
A Payable on Death Beneficiary Designation can be added to your checking and savings accounts. At death, the balance in the accounts will be paid by the bank to your designated beneficiary, immediately and without Probate Court involvement.
A Payable on Death Beneficiary Designation does not effect current ownership of the account, and can be changed or revoked at any time by written notice to the bank.
Life Insurance, Financial and Brokerage Accounts
Life insurance policies and most financial and brokerage accounts have a beneficiary designation. A beneficiary is selected when the policy or account is established. If so, the policy proceeds and account holdings are non-probate assets. Nothing more need be done other than make sure the designated beneficiary is still an appropraiate choice.
If no beneficiary is listed, however, your policy proceeds or account holdings may be Probate assets. You can cure this by simply making a beneficiary election or Transfer on Death Beneficiary Designation.
Transfer on Death Beneficiary for Motor Vehicles and Watercraft
A Transfer on Death Beneficiary Designation can be added to the Ohio title of a motor vehicle and watercraft, converting them to non-probate assets.
And because the designation is effective only upon death, your ownership and ability to transfer the title are not affected, and you can revoke or change the designated beneficiary at any time.
Durable Financial Power of Attorney
A Financial Power of Attorney grants another individual, your "Agent", authority to act on your behalf in certain matters spelled out in the document.
Unless stated otherwise, the Power of Attorney is effective immediately. A copy of the Power of Attorney is as effective as the original, be it photocopy, fax copy or electronic PDF.
Your Power of Attorney can be “durable” in that it survives your incapacity. If you become mentally disabled, the Agent’s authority to act on your behalf remains in effect. A Durable Financial Power of Attorney, together with a Health Care Power of Attorney, can avoid the need for a guardianship should you become incapacitated.
A Power of Attorney can be revoked or amended at any time in writing by an able-minded grantor.
HealthCare Advance Directive
The standard Ohio Health Care Advance Directive includes a Living Will and Durable Health Care Power of Attorney, as well as an Organ Donor Registration.
A Living Will is a written declaration of your decisions regarding use of artificial life support in certain terminal or vegetative states. The Health Care Power of Attorney designates and authorizes an Agent to make medical decisions for you if you are unable to do so. Such decisions must be consistent with your intentions evidenced in your Living Will.
The Organ Donor Registration can be completed, signed, and mailed to the Ohio Bureau of Motor Vehicles for inclusion in their registry.
Your Health Care Advance Directives can be amended or revoked at any time in writing.