Where there's a will there's a way for peace of mind
The following article, written by Sara Arthurs, appeared January 9, 2017 in the Findlay-Hancock County Courier. Read below or view on The Courier's website. LAWO attorneys John Keenehan and Melissa LaRocco are featured in the story.
Nobody likes to think about their own death. But Hancock County Probate and Juvenile Court Judge Kristen Johnson has seen what happens when people don't — and it often involves ugly fighting.
"I would encourage everyone to have a will," she said. She said a will tells the court what your intentions are.
"I think it's important, no matter what, to express your intention," she said. Johnson may encounter a family who comes into court and "they're arguing over the tea set that Grandma had."
Johnson herself isn't emotionally attached. She could say to sell it and divide the money, but if she knew Grandma really wanted one granddaughter to have it, that might make a difference. But "I can't know that," if Grandma didn't put it in writing.
"The fight after a death can destroy a family," Johnson said.
Usually it's money or the value of property that people fight over. But, if there have been other conflicts—if one family member has felt slighted by another in the past—those long-standing issues will raise their head, Johnson said.
Sometimes, she said, one family member may think another isn't reacting appropriately to the death, but "families need to understand that people grieve differently."
When clients ask attorney Bradley Warren of the firm Oxley, Malone, Hollister, Warren and Spaeth why they need a will, he tells them it isn't only for themselves. Warren has handled litigation involving wills and said when two family members sue each other over a will, after the court settles the case, they may never see each other again. Siblings end up embroiled in intense emotions forever.
"A lot of times, the hatchet is never buried," he said.
Warren said having a will is painless. But writing one means literally putting pen to paper to discuss your own death — a slap in the face that you will, in fact, die, he said. So, people often put it off until friends tell a "horror story" about someone who didn't.
It's easy to assume you don't have enough to justify a will, or that it's too expensive to go to an attorney's office. But in fact, a will is not necessarily "an overly complicated document," Warren said.
He said creating a will is a "clear expression of your desire" for your estate. This leaves little guesswork for your survivors, Warren said.
Legal Aid of Western Ohio attorneys John Keenehan and Melissa LaRocco said in some cases, people may not need a will — but they do need to get their affairs in order in writing. The two are part of Legal Aid's Access to Justice team, which provides community presentations on various topics including whether someone needs a will.
Three documents that might help a person avoid probate are a survivorship deed, a transfer on death affidavit and a survivorship car title. These spell out who you wish your home, or your vehicle, to pass to after your death. For example, a survivorship car title allows a vehicle to automatically pass to a designated person upon the owner's death. Having these documents may allow a person to avoid the probate process, without needing a will, Keenehan and LaRocco said.
Keenehan said it can be costly to go through probate, including hiring an attorney, paying filing fees and perhaps hiring a real-estate appraiser. Inheriting an old car worth $1,000 may be followed by spending half or all of that sum going through court, he said.
Johnson said the probate process generally takes about a year, depending on the complexity of the estate.
LaRocco said people assume that, if their mother dies with $10,000 in her bank account, that money can be used for her funeral — but it might take time to go through probate.
And if a young adult lives with an aging parent, they may assume they have the right to stay in their home after the parent dies — but legally, they might not.
In addition, everyone, regardless of their age, should get a financial power of attorney, living will and health care power of attorney, Keenehan said. The latter two forms are available at Blanchard Valley Hospital or by calling Blanchard Valley Health Foundation at 419-423-5457.
Keenehan said a will can help if you want to set up a trust. One situation might be if a parent wants to provide for a disabled child who receives insurance through Medicaid, a program for low-income residents. The inheritance is placed in the trust to provide for certain needs the child may have, without creating a situation where he or she inherits too much to qualify for Medicaid. However, Keenehan said a "Medicaid-qualifying trust" must involve specific language which the state of Ohio has approved for this type of trust. The money may only be spent for certain purposes, generally over and above normal daily expenses like food and shelter. Examples might be special medical equipment or education.
Parents can designate in their will a preferred legal guardian for their child upon their death.
This isn't a guarantee, Keenehan said, but the court will look at it as "your vote from the grave."
Warren said serving as executor of a will is a lot of work. The executor must go through the house and appraise all the jewelry, look at the bank account and report to the courts what the assets are.
When Johnson's own parents approached her about being their executor, she gave them a checklist and asked them to collect information on their insurance company, their attorney and utilities.
"People don't talk about passwords," she said. "Everybody pays everything online."
She encourages everyone to not only make a will but organize all this information, including passwords and regular bill payments. Veterans will need their discharge papers. Johnson advocated putting yourself in the position of an executor who will need to gather all this information quickly.
She said the will itself should not be kept in a safe deposit box, because the bank may not allow your family to get to it right away. Instead, keep it with all your important papers at home, or deposit it at the court.
Johnson said it's hard to talk about your will, not only because death is hard to talk about — finances are also a taboo subject. So spelling out your wishes involves talking about both death and money with loved ones.
"What's good about that conversation?" she said. In a perfect world, Warren said, parents would sit down with their adult children and say exactly what they want to happen, showing them the will.
But it's not a topic anyone wants to talk about at the dinner table, he said.
Still, he encouraged people to get a will, and not procrastinate.
"It is painless," he said.
And most people, once they get it done, "feel a whole lot better. … They actually feel pretty good about it."
