In our law practice, like many others, we stress the use of legal documents as “tools” to use in carrying out your estate during your lifetime and at death. A few of these tools are: trusts (revocable and irrevocable); durable powers of attorney; healthcare powers of attorney, and living wills. We use these tools to best carry out the plans we’ve created for ourselves, our children, and our future. As there are many tools, there are also many ways to travel through an estate process. Some tools determine which way your plan will be carried out; some do not.
As my father often tells me and others, “there is nothing inherently wrong with the Probate process; it is, however, a default system. It is where you end up when you have not clearly expressed your wishes during your lifetime while you had the mental capacity to do so.” This sets us on a course to consider two paths through the estate process: one parallel to the other.
The Probate Path
This is the path to which most of you are likely very familiar. It is the old guard. This path contains: Last Wills and Testaments; Guardianship filings, accountings to the Court; Will contests; rigorous and calculated step by step action. All of these documents have one thing in common: the Court’s authority. At the center of this path is the premise that you must request permission to do what you wanted to with your assets but for some reason cannot, i.e. you do not have mental capacity, you are deceased, etc. For those of us who did not plan for the day that we may be unable to act, this makes sense—we want someone to watch over us with a guiding hand and we want that someone to be subject to generally accepted principles. The compromise in receiving that guiding hand is accountability from your actor(s); and with accountability comes excessive production and reproduction of proof that you are who you are and you want what you want. This path also carries the expense of excessive process and the burden of constant, and sometimes redundant, action.
But what if there was another way?
The Parallel Path
This path is somewhat new and occurs outside the Court’s constant approval and authority. This path carries with the tools of Trusts and Powers of Attorney. These tools are used to forge an independent path. This path has rules that you write, that you determine. When you have passed away or have lost capacity, those who you’ve designated will look to your structure and your authority documents in order to see what to do and where to go. If there is an argument between your heirs and/or those looking after you, it is your word, not the Court’s, that they will turn to in deciding how to proceed. If the Court’s authority is called upon, the Court may act only to decide what you’ve said and not to decide whether or not that is a fair, popular, or just result. After all, when making every day decisions, how many of us consult what a Court in our position would decide? We simply carry on and act in the best way we know how, understanding and appreciating that we are free to decide for ourselves. This path requires trust, demands efficiency, and reduces cost.
This path may not be for everyone, but it is always worth considering.
This article was written by Jessica B. Moon, Attorney licensed in Ohio and Florida. David Bacon, Jeffrey Roth, and Jessica Moon are members in the law firm of Roth and Bacon Attorneys, LLC. Their Offices are located in Upper Sandusky, Marion, and Port Clinton, Ohio, and Fort Myers, Florida. They have focused their practice to provide estate and business planning concepts to their clients. Nothing in this article is intended for, nor should be relied upon as individual legal advice. The purpose of this article is to help educate the public on concepts of law as they pertain to estate and business planning. Copyright @ Jessica B. Moon 2012.
