All I want is a simple will.

Legal resources for handling your own legal matter should be made more readily available for the public since the cost of hiring an attorney can be too expensive for too many.  In some situations, handling your legal matter yourself can be done if you are diligent about researching what you need, what is available, and what is required.  Unfortunately, the trap of “you don’t know what you don’t know” can ruin the best-laid plans, particularly estate plans.

“All we want are simple wills.”  This statement is followed by the direction that the couple (let’s assume they’re married) wants to leave everything to their spouse first, then the kids.  That does sound simple:  Mike and Carol Brady’s will would leave everything to each other then to their kids.  What could go wrong?

A popular do-it-yourself-will website posted an article that shows the reader how easy it is to write your own will.  First, name your executor.  Second, name “guardians for young children.”  Third, describe how assets will be divided and distributed.  Fourth, sign in front of two witnesses, then have them sign.  This is great too—again, what could go wrong?  This does sound easy.  Who needs an attorney!

Let’s examine the Brady’s “mirror wills” (they mirror each other—all to spouse, then to kids equally).  The first red flag is that the Brady’s have children from other relationships, and like most blended families, the kids aren’t adopted.  In most states, stepchildren do not inherit (unless specifically named).  Here, a typical will would state “I leave all my assets to my wife Carol; if she predeceases me, then to my children in equal shares.”  Mike dies, and all of his assets go to Carol.  Carol dies, and her mirror will states “…all of my assets to Mike; if he predeceases me then to my children equally.”  At Carol’s death, she had inherited all of Mike’s assets from when he died.  Since Mike predeceased her, then all of her assets, including from Mike, go to Marcia, Jan and Cindy.  Those are her children.  Greg, Peter and Bobby are her stepchildren.  What do the boys get?  Nothing under this standard, simple will!

Now let’s examine the do-it-yourself article.  Name your executor—not too hard, although the article did not mention naming successor executors, but most people would know that.  However, “Name guardians for young children.”  I name my brother John Doe and his wife Jane as guardians because they know and love my kids.  What if they divorce—now my kids might be in the middle of a custody fight because both were named guardians.  What if my brother John is killed in a car accident—does my sister-in-law keep my kids?  She would if both are named.  Or at brother John’s death would I then want my kids to go live with my sister so my kids remain with a family member?

The best (insert a little sarcasm) advice is “describe how assets will be divided and distributed.”  That appears easy to do—divided evenly among my 3 kids.  I see that phrase often in wills, “to my children equally.”  Dad dies, Kid 1, Kid 2, and Kid 3 each get an equal share of his estate.  But what if Kid 3 died before Dad?  An attorney would counsel you, and prepare accordingly, whether you want your estate divided between Kid 1 and Kid 2, or if you want one share to Kid 1, one share to Kid 2, and one share to go down to the children of Kid 3 (Dad’s grandchildren).

Most people who do their own wills and estate plans think the documents are good, but they don’t know what they don’t know, and they definitely won’t know because they’ll be dead when any problems are discovered (“oops, Dad disinherited his grandkids”).  Simple wills are not that simple in many instances.

Grandparent Visitation Rights in Ohio

Grandparents have rights to visitation with their grandchildren under certain circumstances. If a child’s parents are unmarried; if the child’s parents start divorce, dissolution, or legal separation proceedings; or if one of the parents has died, a grandparent can ask the court for companionship or visitation rights if the grandparent can show he or she has an interest in the welfare of the child. The child’s parents can object, but ultimately the court will decide on grandparent visitation based on what is in the best interests of the child.
 
Sometimes a grandparent with visitation rights believes these rights are permanent. Grandparents can have their rights terminated if a parent can show a change in circumstances that makes visitation something that is not in the child’s best interest. One example of a grandparent having visitation rights taken away is when their son- or daughter-in-law (parent of the child) remarries and the child’s new stepmother or stepfather adopts the child (stepparent adoption). Under Ohio law, the grandparent becomes a “stranger,” legally, to the child. The grandparent would have no rights to visitation, or anything, with the grandchild. Perhaps he or she could still visit with the grandchild, but this would be at the discretion of the parents.
 
Grandparents’ rights to visitation with their grandchildren in Ohio are not as strong as in other states. There are states that permit visitation for grandparents with a grandchild who has been adopted, but Ohio is not one of them. If you have questions, don’t hesitate to reach out to see if I can help at julie@juliemillslaw.com.

Elderly parent and assisted living

A friend is facing the prospect of having to consider assisted living for her mother.  “Mother” is friendly, enjoys people her age, and although she loves all five of her grandchildren she does not want to live with them.  She wants to remain at home but, because of dementia, she needs a “memory care” facility.  She finally agreed to other living arrangements after forgetting about a pan of food frying on the stove and nearly burned her house down.

Addressing these issues before there is an immediate need for assisted living is preferable because an elder law attorney can work with you to qualify for Medicaid without losing much of what you own.  To qualify for Medicaid you must have no more than $1,500 in assets.  What you have, after considering exempt assets and other factors, must be “spent down.”  Taking this journey without an attorney is, in this attorney’s opinion, a poor decision.  Many people who decide to apply for Medicaid sell their home, mistakenly believing it will be taken–it is typically an exempt asset.  Unfortunately, then, the proceeds from the sale of the home (an asset that was previously exempt) are then a countable asset which will increase the amount you must spend down.

Takeaway: if a loved one will be entering a nursing home or assisted living facility, and will need to apply for Medicaid, consult with an elder law attorney.  The money you pay for the attorney’s counsel will likely not come close to the money and assets you will protect if applying for Medicaid.

Grandparents rights in Ohio…

…are not as strong as in other states.  Custody and visitation are both permitted but both are very different in difficulty to obtain.

In Ohio for a grandparent to get custody of a grandchild, the child’s parents need to be proven unfit or unsuitable to parent.  This is a difficult obstacle to overcome and prove but can be done.  The court will make its decision of “unsuitability” based upon whether custody with the parent has an adverse impact on the child.  The court will not base its decision on whether society disapproves of the conduct of the parent–if there is no adverse impact on the child, there might be no finding of “unsuitability” of the parent.

Visitation is a different journey.  If a grandparent has had an active and involved role in a child’s life, there is a good chance that a grandparent can petition successfully for visitation rights in Ohio.  In fact, Ohio permits grandparent visitation, by statute, in three circumstances:

  1. when married parents separate or terminate their marriage;
  2. when a parent of a child is deceased; or
  3. when the child is born to an unmarried woman.

Grandparents can ask a court for visitation even after the parent’s divorce is final.  Regarding visitation, the court will make its decision based upon what is the best interest of the child.

The takeaway here is to act quickly.  Contact an experienced family law attorney in your state if you want to pursue custody or visitation rights with your grandchild.

 

 

Kids, your vacation, and medical decision-making.

You finally have a vacation planned, and your parents will be watching the kids.  Everything on your To Do list is done, but I bet there is one thing that you did not have on your list–have a medical power of attorney prepared.  (If you have had one prepared, then my apologies for doubting you.)

What happens when your child is injured or sick and requires medical attention when you are not there?  If you are in Hawaii, and your parents are watching your children in Ohio, and consent is required to treat your sick or injured child, what is the fastest route for obtaining that consent?  It might not be calling you, or otherwise tracking you down, especially if you are snorkeling or on a helicopter getting a tour of the islands from the air.  The fastest route to getting your child treated at the hospital is for Grandma or Grandpa to pull out the medical power of attorney that you had prepared and gave to them, naming them as agents to make medical decisions for your child.

Things to consider include any treatment you object to, how long the document should be in effect, and perhaps successor agents just in case your primary agents (here, Grandpa and Grandma) could not serve.

Have your attorney prepare a medical power of attorney for you so that it complies with your state’s laws.  Having one prepared provides true peace of mind.