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  Question: I am a middle-aged female who recently married for the second time. I have two children from my prior marriage, and I have never drafted a will. I know I should have a will made, but is it really that important?

Answer: We always recommend that our clients have a valid will drafted, whether they are single or married; are young or old; have children or don’t have children. In its simplest form, a will is a legal instrument that directs the distribution of one’s estate after death. If a person dies without having executed a valid will, then a probate court will apply the laws of descent and distribution, which will govern the distribution of your assets after your death. Basically, if you don’t create a will, the state of Ohio has one ready for you. Therefore, if you want a say as to how your hard-earned assets and cherished belongings are distributed, then you should very much consider having a will drafted in order to protect you, your loved ones, and your assets.

A will is the proper instrument to express a parent’s desire as to whom they would like to serve as their child’s guardians should something happen to the parent(s) while the child is a minor or still has special needs. It should be noted that the court will not automatically grant guardianship to the person named in the will as the guardian if the appointment of that person is, for some reason, not in the child’s best interest. This is often the case when the person named in the will as guardian has had a change in circumstances since originally being named in the will. If a valid will does not express a parent’s desires concerning guardianship, then the court, most likely with the assistance of a guardian ad litem, will determine who will care for and look after your child.

In addition, Harvey, Abens & Iosue often finds that people who don’t have a will in place or who have not had their wills updated for a while are often missing many other important documents such as powers of attorney, living wills, health care powers of attorney and other documents meant to address one’s current needs. Harvey, Abens & Iosue is proud to offer its clients a full spectrum of estate planning choices and is always available to speak with you concerning your estate planning and current personal document needs.

Question: My widowed mother recently passed away from a prolonged battle with cancer, and I just found out that I am the executor of her will. I know that she owned her house, had a modest retirement fund, a moderate savings account and some valuable family jewelry, but I don’t know what to do next. The will seems pretty complex and says that my Mom wanted to leave some money to me, my two brothers and a local cancer research organization. I have heard of the probate process, but I have no idea what it means or what the first step is. Do I need a lawyer?

Answer: Put simply the probate process is a legal proceeding provided for by Ohio law to determine the assets of a deceased person who was an Ohio resident at the time of death, the value of those assets, and the distribution of those assets. An executor (or “administrator” if no Will exists) is the person/entity put in charge of the estate. The executor’s job is to supervise the proper and lawful administration of the estate. Several of the main duties of an executor/administrator are to properly identify all (potential) heirs, take possession and hold in conservatory the estate’s assets, file an inventory of all of the estate’s assets with the Probate Court, receive all claims against the estate and the validity thereof, file estate tax and income tax returns, pay all taxes due, effectuate the proper and lawful distribution of the estate’s assets, and file with the Probate Court all of the necessary final accounts associated with the administration of the estate. Please note that these are only some of the core duties of an executor/administrator and do not include many other ancillary and necessary duties that are included in this position.

As you can see, an executor/administrator’s duties are numerous and often complex. Ohio does not mandate that an executor/administrator hire an attorney, but probate courts are very particular about the filings they receive and there are many strict deadlines that an executor/administrator must meet. In addition, there are many instances in which real estate must be transferred, a process that can turn complicated very quickly without the assistance of a trained attorney.

In addition, a licensed attorney may be able to save the estate significant sums of money which could potentially offset the legal expenses incurred by the estate. It should be noted that if an executor/administrator is found to have performed any of their duties negligently, then the executor/administrator may find themselves personally responsible for the mistake. This is why Harvey, Abens & Iosue often advises that an executor/administrator hire an attorney to ensure that the executor/administrator is abiding by all applicable laws. Lastly, one should also be aware that the cost of the attorney is usually paid from the estate itself and deducted from the gross assets of an estate.

In the above instance, I would suggest consulting with Harvey, Abens & Iosue so that a licensed attorney may consult with you and fully explain the advantages of retaining our services. The probate process is usually a tedious one and must be done shortly after the loss of a loved one. Please contact Harvey, Abens & Iosue to learn more about its affordable probate law rates.