It is never too early to craft an estate plan to ensure that those closest to you are cared for upon your passing. Since it is a legal process, the courts have ultimate control over how your estate is distributed. It is only through careful planning that you can wrest some of that control away from them and make certain that your assets make it to your loved ones.
If you do not have a will, who gets first shake at your estate? Most people believe it is their spouse, but that is not entirely accurate. The first in line is actually your creditors. Your family then gets whatever is left over. There are, however, ways that an estate planning attorney can help you get certain assets to your family before your creditors get repaid. In this article, we will discuss the various ways an estate planning attorney can help you ensure that your assets make it to those you love.
Last wills and testaments (also known as wills) have legal requirements for validity. The testator must be of sound mind and not under duress or undue influence when drafting the will. In addition, the will requires two witnesses to be present to sign off on the document. In certain situations, a family member who is unhappy with the will’s contents can contest the will in court. By having a lawyer draft your will, you make it much more difficult to contest it. In addition, while wills in Ohio are not required to be notarized, notarizing your will makes it less likely to be successfully contested.
If you do not have a will, then all of your assets go through the process of intestate succession. The state has a specific algorithm for dividing assets in the case that there is no will. Depending on who your surviving heirs are, spouses are the first in line. Next, come children and then other family members, and so on. On rare occasions, there are no surviving heirs. In this case, the property will go into escheat where it will become the property of the state.
While wills can and do enable you to distribute your property to your heirs, the property first passes through the court in probate. The first thing the court does is contact your creditors and determine what debts you have. Trusts work differently. An estate planning attorney helps you set up a trust on your behalf. A property you own can be signed over to the trust and distributed to a beneficiary. With a trust, you have much more control over how the property is distributed. Trusts can be set to pay out immediately after your passing. The property does not pass through probate and, as such, creditors do not have “first dibs.” If a creditor wants to a collect a debt from a trust, they must first sue the trust—a much more complex and expensive process than filing a claim with a probate judge.
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