Probate Services

Whether you need an attorney to assist you in probate estate administration, or you are ready to create an estate plan that will provide for your family’s future, Attorney Skip Potter can help. Serving northwest Ohio for over 40 years, Skip is familiar with the county probate courts and has the experience to provide you with competent and compassionate legal support.

 Estate Planning

Many people mistakenly believe that estate planning is nothing more than having a will. In fact, it is a much more comprehensive process that is often difficult to navigate without the help of an experienced estate planning attorney.  When you meet with Skip, he will discuss the pros and cons of looking at a will vs planning for a trust, whether that be a revocable trust, or irrevocable trust.  He can explain the values of each and help guide you to make a decision that best fits you and your heirs in one of the most important decisions you will make for your heirs.

Understanding the requirements and legal responsibilities when a family member passes, is important in the process.  What does it mean to probate an estate?  Probate is the court-supervised process of administering a decedent’s estate with the goal of distributing the assets of the estate to the rightful heirs that were identified in a will.   Probate laws and rules are determined at the state and county level. In most cases, if the estate contains only assets that do not require probate or the remaining estate is considered “small”, then probate is not required, depending on the state in which you reside.

A number of asset types are generally exempt from the probate process:

  • Assets with named beneficiaries, such as
    • IRAs, 401Ks, and so forth
    • Life insurance policies (unless the beneficiary is the estate itself)
    • Funds held in Payable-On-Death (POD) account
    • Securities registered in a transfer-on-death (TOD) form
    • Real estate subject to a transfer-on-death (TOD) deed
    • Vehicles registered in a transfer-on-death (TOD) form
  • Jointly owned assets, such as
    • Property held in joint tenancy with right of survivorship
    • Property held in community property with right of survivorship
    • US Savings bond with multiple owners
    • Sundry low-value household items
    • Assets held in a trust, such as house deeds, financial assets identified with the trust as the beneficiary

What is the difference between a Trust vs a Will?

  • Wills are important in the naming of executor(s) and determining who will have a say over your loved one’s welfare. Also, they work well for giving instructions about your funeral, burial, and other decisions that can only be made after you die.
  • A living trust is a legal arrangement, which is drawn up during your lifetime. This document is similar to a will, but there are significant differences. With a trust, you specify exactly what you want to happen to your estate while you are still alive, and when you die, the trustee is able to carry out your instructions without waiting to complete the probate process, which can sometimes take years to complete depending on complexities and in-fighting with heirs. A will comes into play only when the estate holder dies. With a living trust, the process is shorter and the assets will be transferred to your chosen beneficiaries when you die. Trusts can be used for the purpose of skipping probate, reducing your tax burden, reducing the legal costs associated with hiring an attorney, paying court costs for probate, and protecting your beneficiaries from excessive taxation upon your death. In addition, they can safeguard the interest of your loved ones with special needs without compromising their benefits. There are different types of living trusts, including revocable and irrevocable trusts. It is important to understand the differences before taking that important step.   Living trusts are often beneficial for people who have complex financial affairs and those with multiple beneficiaries.  The costs associated with having an attorney create a will or a trust are significantly different.  However, having a trust and keeping assets out of probate will almost always offset the difference in those costs.
    • Revocable Trust: If you set up a revocable trust, you have the option to make changes during your lifetime. As the grantor, you can modify the rules or even cancel the trust whenever you want. During your lifetime, your trust may generate interest, and this money will go to you, the grantor. When you die, your assets will be passed to your beneficiaries, but you can benefit from your trust, while  Revocable trusts offer flexibility, and they also provide the grantor with the ability to benefit from the trust at the same time as enjoying peace of mind that arrangements are in place for the trust to be transferred to beneficiaries after death. When the grantor dies, the trust becomes irrevocable.
    • Irrevocable Trust: An irrevocable trust cannot be modified or adjusted by the grantor without the permission of the beneficiaries. When you set up an irrevocable trust, you essentially lose control of ownership of the assets, and you transfer the trust to your beneficiaries. An irrevocable trust is the opposite to a revocable trust, which can be adjusted by the grantor at any time without any input from the beneficiaries. The most common reason people establish an irrevocable trust is to minimize estate taxes. As ownership passes to the beneficiaries, the assets protected by the trust are no longer taxable as part of the individual’s estate. Examples of assets that may be included in an irrevocable trust include insurance policies, cash, and business investments.

In addition to planning for your will or trust, you should consider the importance of having the following:

  • Living Will: The Living Will is a written, legal instruction regarding your preference for medical care if you are unable to make those decisions for yourself. Advance directives that are included with the Living Will give your instructions for the doctors and care providers if you are terminally ill, seriously injured, in a coma, or in late states of dementia or near death.  Keep in mind that advance directives are not just needed for the elderly.  Unexpected events can lead to catastrophic situations where you may be incapacitated and unable to give your directive for how you want to be treated.  Advance directives can help avoid confusion or family member disagreements on the choices for your treatment or difficult decision making in life and death scenarios.
  • Healthcare Power of Attorney: The Health Care Power of Attorney is a type of advance directive in which you name a person to make decisions for you when you are unable to do so. Some states call these Durable Power of Attorney for Health Care or health care proxy.  Even if you have other legal documents regarding your care, some situations may require someone to make a decision regarding your wishes.  When you make this important decision regarding whom you choose as your health care agent, consider whether the person can be trusted to make decisions that adhere to your wishes and values.  Ensure he/she can be your trusted advocate, should there be disagreements within the family regarding your care.  Is the agent (also known as health care representative, or health care attorney-in-fact, or patient advocate), willing and able to discuss medical care and end of life issues with you?  Are they of a physical and mental capacity to act on your behalf to follow through with your instructions?
  • General Durable Power of Attorney: The General Durable Power of Attorney is a written, legal instruction assigning an agent, sometimes known as attorney-in-fact to handle all financial, transactional, governmental, business dealings, including but not limited to the following: Please note the importance of assigning this to only a person with whom you have complete trust in handling your affairs with integrity and honesty. 

Skip Potter’s Law Office encourages you to take that important steps needed  to plan for your future and determine how you wish to see your assets distributed when you pass.  Keep in mind that you can always make changes to your will or trust based on events that happen after a will or trust has been created (except for the irrevocable trust).