Estate Planning

At the Law Offices of David A. Looney Co., LPA, we make the very complex and sometimes difficult estate planning process as understandable as possible. Our lawyers have extensive experience in providing clients with a variety of legal services, and we maintain a special interest in estate planning. The size of our firm ensures that your case will receive the personal attention of one of our partners, and will not be handed to a young associate or paralegal.

1. A Will. A will addresses how your assets will be distributed upon your death, and names an executor who is given the legal responsibility of seeing that your estate is administered in accordance with your wishes. The administration of your estate is supervised by the Probate Court. This process can take approximately four to six months, depending on the complexity of your estate. If the size of your probate estate is under certain dollar amounts, the estate may be eligible for a "release from administration", a probate process that is much quicker and less costly than a full administration.

   There are many reasons that you should have a will. If you have minor children, the need for a will is especially important. Should both parents die while the children are minors, the Court will appoint a guardian who will raise your children and administer their inheritance. If you have a valid will, you can name that person, thereby being assured that your children are being taken care of by someone of your choosing, rather than leaving that appointment to the court system.

   Another reason for couples with minor children to have a valid will in place is because without a will, both the spouse and the children would inherit. That means that in the case of real estate, the surviving spouse and the children would take title to the property. This would result in the surviving spouse not being able to sell or mortgage the property because the "minor" joint owners are not legally capable of entering into contracts. Court action would be required, and the children's interests in the sales proceeds would have to be preserved. By having a will, all assets, including the real estate, could be given to the spouse, thereby avoiding this expensive consequence.

   There is yet another reason to have a valid will when you have minor children. With or without a will, under Ohio law, children will receive their inheritance when they turn 18. All of it. In one lump sum. To do with as they please. One way to prevent a child from receiving an inheritance at such a tender age is to create a "testamentary trust" within your will. By using the appropriate language in your will, you can have your children's inheritance put in trust, to be used only for certain purposes, such as their health and education. And you can control when they receive the trust funds, such as one third when they turn 21, one third at 24 and the balance at age 30, or whatever is believed to be appropriate for your individual circumstances.

   A will is a powerful instrument that allows you to control your assets in the way that you request upon your passing.

2. Power of Attorney. A Power of Attorney is simple, inexpensive, and if the need arises, invaluable. A Power of Attorney allows someone of your choosing to act or sign documents on your behalf. From being able to sign your checks, to selling real estate, a Power of Attorney will give your spouse or someone of your choosing the legal ability to take care of your business. It is too late to execute a Power of Attorney if you are incapacitated. Everyone should have a Power of Attorney property created and executed that will take care of all future contingencies during the time of incapacity or prolonged absences should the need arise.

3. A Living Trust. The Court supervised probate administration of an estate is necessary only when a person's assets are in his sole name at the time of death. Once an individual has died, the only way to transfer those assets is through the Probate Court. However, if you have prepared a living trust before your death, your trustee can carry out your instructions regarding the distribution of your property without court interference. With a properly drafted trust, you create a separate legal entity which holds your assets and which you administer during your lifetime. Your trust names a replacement trustee for when you die. The replacement trustee is instructed by the terms of the trust to distribute the remaining trust assets in accordance with your wishes as described in your trust without a court order.

4. Joint Tenancy and Transfer on Death. Although not often thought of as estate planning, you can easily have assets transferred to your loved ones upon you death simply by transferring your assets into joint tenancy, or transfer on death ownership. The cost to create such ownership documents is minimal, and the transfer upon your death to the joint owner is for the most part automatic.

5. Healthcare Power of Attorney. A Healthcare Power of Attorney appoints someone to make healthcare decisions for you if you are unable to make them yourself - decisions such as what hospital and doctors are to care for you, and what procedures and treatment you are to receive. Rather than have loved ones argue among themselves concerning such issues, a Healthcare Power of Attorney designates the person of your choosing to make your healthcare decisions when you are incapicated.

6. Living Will. A Living Will is an instrument that indicates that you do not wish to be kept alive by machinery and artificial means if you are "brain dead" and have no hope of recovery. A Living Will can also specify whether or not you want nourishment and water to be withheld in the event you are in such a terminable state. These issues are not something that should be left to others, and are easily addressed when you create your Living Will.