Living Wills and Living Trusts in Ohio
In a “Living Will,” also called an “Advance Directive,” a “Health Care Directive” and a “Directive to Physicians,” a person states his specific concerns for end-of-life medical care if he or she is unable to communicate decisions about treatment or life-prolonging measures.
How a Living Will Differs from Other Documents
It is possible to prepare your own Living Will, but if you want to consider all of the documents you may need to include in an estate plan unique to you and your family, you should consider getting legal advice. A Living Will differs from a “Durable Power of Attorney for Health Care” because the latter generally covers all health care decisions and lasts as long as one lacks lack capacity.
A Living Will is not a “Will” in the traditional sense. A Will has no legal impact until death while a Living Will is legally binding and takes effect when a person is alive—either immediately or when the person can no longer communicate. A Living Will does not leave property or assets to loved ones. A Will often designates who receives assets and names an executor to manage probate or a guardian for minor children.
Generally, a Living Will has no power after death except where brief authority has been given to make decisions about organ donation and/or autopsy.
What a Living Will Can Do
A Living Will can direct family members or loved ones to extend “palliative care” to a terminally ill individual or person in a persistent vegetative or permanently unconscious state in order to mitigate their pain and suffering. It can direct (in what is sometimes called a Living Will Declaration) that life-sustaining treatment should be withheld or withdrawn.
Without a Living Will, relatives will be left to guess what treatment a person would prefer or what he or she may not want done and disputes between family members could arise that could result in a court battle.
In Ohio, a Living Will must be signed by the declarant, who is an adult of sound mind. It must be dated and signed in the presence of two witnesses or a notary public who attests that the declarant is of sound mind and duress-free. It can be revoked at any time in the creator’s lifetime in any manner.
Living Wills are often part of estate planning done with an attorney. It is possible to prepare your own Living Will using a quality software application but you want to make sure it follows state law. The probate attorneys at Slater & Zurz LLP law firm will make certain this happens and will ensure all the documents you need have been completed.
How a Living Trust Differs from a Living Will
A Living Trust is a legal document that states who you want to manage and distribute your assets if you cannot do so and also names who will receive your assets when you die. It is used primarily to avoid probate, for privacy reasons and sometimes for asset protection purposes. It is also called an “intervivos trust.”
If you’re not sure how a Living Trust operates, an attorney from Slater & Zurz LLP can explain it to you and advise if it is a good vehicle for your financial situation.
A Living Trust is “funded” when property is transferred to it. Since the assets in the Trust are not owned by the principal, they pass by the terms of the Trust at death.
Living Trust forms do not have to be filed in court. Thus, they aren’t a matter of public record and their terms do not have to be known to everyone. In contrast, the terms of a Will become public record during probate.
A Living Trust asset is owned by and in the name of the Trust. The person who creates and funds the trust gives up ownership and control. Therefore, creditors cannot claim an asset unless it has been fraudulently transferred to the Trust.
Creating a Living Trust in Ohio
To create a Living Trust document, you must create a Revocable Living Trust document and appoint a trustee of the Trust. List the property you are placing in the Trust and name your beneficiaries. Name the trustee for the Trust as owner of your assets. This transfers your property into the Trust. You should also appoint a “successor trustee” who assumes control of the Trust after the initial trustee dies or becomes unable to continue with their responsibilities.
Ohio requires that your written declaration of trust be dated and signed in the presence of a notary. The grantor must be at least 18 years old, of sound mind and under no constraint or undue influence.
A Living Trust is generally part of a comprehensive estate plan that an attorney prepares together with a Power of Attorney, a Living Will and a traditional Will. You can prepare your own Living Trust but you may wish to have an experienced professional handle the details of such a comprehensive document.
If you think you may need assistance with either a Living Trust or Living Will or other estate planning documents, Slater & Zurz LLP law firm has estate planning attorneys with many years of experience who can help you choose what is best for you and any beneficiaries. They attorneys can help you select a trustee and a successor trustee and guide you through the transfer of your assets.
Call 1-888-534-4850 to schedule an appointment with an estate planning lawyer or go to their website, slaterzurz.com, and leave a message, or “chat” with their 24/7/365 legal representatives to get more information. Your initial consultation with an estate planning attorney is at no cost to you.