What happens if I keep putting off making my Estate Plan?
published January 13, 2020
by Laurie M. Boveington, Attorney at Law
Part 4 of a 4-part series
If you choose to execute no documents at all, rest assured, your estate will eventually find its way into the right hands, and hopefully, someone will step up to help take care of you or your estate.
But what if they don’t?
Here are the risks of having no estate plan in place.
If you die without a Will, which is referred to as Intestacy, state law will take over with a “default” distribution*. Your spouse will be the first to receive your estate, with special rules for step-children. If there is no spouse, then your children will inherit. If there are no children, then your parents will inherit, and if your parents have predeceased you, then your siblings will inherit. If there are no siblings, the administrator of your estate will need to locate your next of kin and distribute your estate accordingly. These rules are complex since they sometimes involve very distant relatives whose exact place in the family hierarchy can be difficult to determine.
Without a Will, there will also be no Executor. Instead, someone will need to step up and apply to be the Administrator. If a suitable person does not volunteer, the Court will appoint one, usually a local attorney from a list compiled by the Court. The Administrator will also have to post bond, which is calculated based on the value of the decedent’s personal property. If there are substantial cash assets, bond can be considerable.
Now suppose you are still living, but have become incompetent. Without a Power of Attorney or Health Care directives, who will make decisions on your behalf? Again, someone will have to step up and volunteer to apply for a Guardianship through the Probate Court. Again, if no suitable guardian steps up, the Court will appoint someone. This process is time consuming and expensive, and requires court oversight that could be avoided by executing a Power of Attorney. In addition, your assets cannot be sold, and certain purchases cannot be made, without court orders. However, if you believe your loved ones will fight over your care, then it may be better to have court oversight, since court involvement often prompts better behavior. Even if your family ends up in a protracted battle, the Court will make orders based on your best interest that everyone will have to follow.
Health care documents are another issue. Without these documents in place, your loved ones are not entitled to information. They cannot participate in your care, and have no authority to authorize treatment. In reality, most doctors will talk to family anyway, unless there is some reason to believe the family members do not have your best interests at heart. Divorces, blended families, and unmarried partnerships also cause issues of who has the primary right to make decisions on your behalf. Perhaps the biggest problem is that without a Living Will in place, your family has no authority to remove treatment that only prolongs your life but has no other benefit, or ask that you be disconnected from life support so that you may die naturally with your dignity intact. Instead, your doctors will do what they see as necessary to keep you alive. If your family believes this would be against your wishes, they may have to go to court to override the doctors’ medical decisions. If this is your choice, then you should not execute a Living Will and make sure to inform your family of your wishes.
In short, a good estate plan, even a simple one, will answer many questions for your family and loved ones and clear up a lot of doubt. It will bring peace of mind to you and those who will handle your care and end of life decisions. It makes sense to have them in place now, because no one has a crystal ball to tell the future, and besides, these documents can be changed at anytime. So don’t wait! Call today!
* Ohio Revised Code 2105.06 Statute of Descent and Distribution