Probate Attorney

Settling the Estate of a Loved One

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Losing a loved one is emotionally challenging and perhaps the most difficult moment in your life.  Yet while grieving there are many tasks that one responsible individual must complete in order to settle the estate. This article is geared toward the executor, the person who will be ‘quarterbacking’ the process in probate court and/or trust to settle the estate of a loved one. If you have been the executor and/or trustee of an estate then you understand that it can be very involved and a great deal of work. If you haven’t endured this role, then hopefully this article will provide some insight on what to expect when that time comes.

Secure Your Oxygen Mask

If you’re not taking care of yourself, you’re not going to be able to take care of anything else. Grief will hijack the brain and body like nothing else, so please make sure you taking care of your overall health before engaging in the tasks ahead. Let people help in any and all ways they are able to help you, so that you can take on the enormous tasks of processing your loss while being the quarterback.

Research suggests that grieving is not progressive, like a staircase. Having a terrible day after a relatively good day can be disheartening, but it is normal. As an estate attorney helping clients with numerous probate estates, I’ve found the following to be most helpful when dealing with grief and the responsibilities as Executor:

  • Share the burden of the loss and the joy of your memories with family members and friends.
  • Think about helping others cope, if you can. Helping others deal with the loss can be healing in its own way.
  • Stay well, physically. Move and exercise, eat healthful foods, and most of all, sleep. Sounds too easy right? But seriously, most people fail to do this.
  • Accept help. Help may arrive in a flood at first, but if you feel at your limit and the flood has turned into a trickle, reach out and ask for what you need. Or let your loved ones know in the beginning you may be happy to take them up on their offer later.

Obtain the Trust or Will

Hopefully your loved one let you know where you could find the original or copy of their estate plan. If they had a last will and testament, then the document will be administered through probate court. A trust will have a similar process; however, there is no court involvement. Review the document to get a sense of who is in charge and who will inherit. Look specifically to see if someone has been disinherited so that you can be aware of any potential conflicts down the road. Trust me, when death and money are involved, family members will come out of the woodwork with their hands out expecting their share.

Create an Inventory of Assets and Debts

Settling an estate will generally involve liquidating the assets, depositing them into one large account, paying debts, and then making distributions to beneficiaries. In order to accomplish this task an inventory of assets and debts must be assembled. A spreadsheet will be helpful if you can start recording the things you know of. More may be uncovered along the way. This inventory will be helpful to your attorney during your first meeting with them, and they will help develop it throughout the probate and/or trust process.

Your attorney will guide you as to which debts need to be paid and when. Do NOT start paying debts immediately because not all debts are required to be paid.  Additionally, Ohio probate courts determine a hierarchy for creditors expecting payment. If you, as a fiduciary, have gone around that line – you may be personally liable for making sure the ones in the front of the line get paid. Nonetheless, creating a detailed inventory of the assets and debts will prepare you for this process.

Secure Real Estate

Because a death is often published in the newspaper, it’s important to secure any property to fend off thieves or disgruntled relatives. Don’t be afraid of aggravating family members. It is important that nothing is distributed or taken from the decedent’s home. If necessary, changing the locks on the property is completely acceptable.  Part of securing the property is making sure that there is a plan for water and electric. If the house overheats or pipes freeze, there can be some unpleasant downhill problems to deal with. Thus, assets that are lapidated through the process will be used to pay any expenses and utilities.

Contact a Probate Attorney

I cannot stress enough that settling the estate of a loved one should not be attempted by yourself. There are hundreds of nuances and tricks to avoid creditors and perhaps more importantly, ensure that you are not violating any laws as the fiduciary/executor. We like to work with our estate planning clients in the beginning to structure their estate plan so that probate won’t be necessary. However, even trusts involve a great deal of administration and effort.

The most important thing is that you have a consultation with an attorney that specializes in probate and estates. There are things about Ohio probates that even a good general practicing attorney will miss. During the consultation, a probate attorney will give you an idea of what to expect. There is time, but ideally you will engage an attorney between 30-45 days from the date of death. They will help you “open the estate”

Timeline

In northeast Ohio counties, probates require a minimum of six months. The average probate timeline however is closer to eleven months.  The average time to administer a trust is four months.   If you need help as the executor of an estate or would like to make your estate plan as seamless as possible, please contact our office by phone at 216-573-3723 or e-mail me at dan@baronlawcleveland.com. As always, please feel free to e-mail me with any other legal concern that you may have. You questions and comments are much appreciated.

Baron Law

Advanced Directives – My Personal Experience When Planning for the Unexpected

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My Story

Like many of you reading this article, I never think a major medical disaster could happen to me or, if something did happen, that I would be competent enough to make decisions for myself. Well, as a ‘relatively young’ guy, this was not the case recently when I needed emergency surgery to prevent permanent paralysis.   Two years ago, I was practicing my golf swing on a late Thursday afternoon at Sleepy Hollow in Brecksville, Ohio.  I’m a terrible golfer and I wanted to ensure I wouldn’t embarrass myself the next day while playing with a client.  Near the end of my practice, I decided I wanted to see how hard I could hit the ball.  I hit the ball with maximum effort that ended up landing on the fairway outside of the nets.  During my swing I felt a ‘pop’ in my back and my leg went numb.  I decided to call it quits and go home to rest.

That night, while resting I leaned over to grab the TV remote.  Without warning I had excruciating pain suddenly occur in my back and my legs went limp.  I was on the floor unable to move or reach my phone. Luckily, my friend was visiting and he called EMS.   When EMS arrived, I was crying from the pain, unable to move my legs, laying on the floor.  I have never experienced anything more painful in my life. The paramedics gave me a shot of fentanyl for pain – it did nothing. Upon arriving at the hospital, the nurses gave me a shot of morphine – it did nothing. Then the doctor ordered a dilaudid.  After an hour of being on a combination of fentanyl, morphine, and dilaudid, I was finally relieved of pain and in addition, also relieved of my mental abilities.

After an MRI was performed, the doctor came to give me the news.  She said that I had a severe lateral herniated disc. The disc exploded and was piercing the nerves that control my legs.  I would need emergency surgery within the very immediate future, or I would have permanent paralysis in my right leg for life.  She explained that because the herniation was lateral, it required a more complicated approach.  It was one that she could handle, but she felt her colleague (who was on vacation) was more adept due to his experience. The doctor suggested that I wait three days, in severe pain and on multiple pain meds, to have her collegial surgeon perform the surgery. She needed to know what I wanted to do.   However, because of the effect the medications I was taking for pain, I did not have the mental competency to make this decision myself. Instead, those who I named in my advanced directives would need to make these decisions for me.

What are advance Directives?

Simply put, advance directives are legal documents that provide detailed instructions about who should oversee your medical treatment and what your end-of-life or life-sustaining wishes are. In the event you are unable to speak for yourself, like in my case of mental incapacity, the medical professionals can contact someone else who has authority to make those decisions for you. Though there are many advance directive documents out there, the three most common are Healthcare Powers of Attorney, HIPAA Authorization and a Living Will.

Healthcare Power of Attorney – A healthcare power of attorney allows you to appoint a trusted person to make all healthcare decisions in the event that you are unable to make them for yourself.

Living Will – A living will eases the burden on your healthcare POA to ‘pull the plug’ when you are in a permanent vegetative mental state.

HIPAA (Health Insurance Portability and Accountability Act) – Medical records are private and are covered under the HIPAA laws. You Healthcare POA must have the authority to obtain your medical records through a properly executed HIPAA authorization.

My Healthcare POA

By this time, I was admitted in the hospital and the surgeon needed an answer regarding when I wanted the surgery to take place.  The doctor asked to contact my healthcare POA. I said, no problem her name is Kathy and I will provide her number.  I reached for my phone and it was then I realized that I had forgotten it when EMS brought me in.  Like many of us, I did not memorize Kathy’s number so without my phone, I was stuck.  Additionally, since this was during the outbreak of COVID my friend who called EMS was not able to come into the hospital either.

The nurse taking care of me looked through my cart and noticed I already had my healthcare POA on file, naming Kathy as my Agent. I wasn’t thinking clearly so I hadn’t thought to ask the nurse to check.  It was then that I remembered, in a slight daze, that I practice what I preach.   Three years earlier I completed all of my advanced directives and made sure to upload them with all three major hospitals: Cleveland Clinic, University Hospital, and Metro.

The hospital called my Healthcare POA and she came to my rescue.  As a nurse herself, she knew exactly what medications I was on and how to interpret the medical situation.  Moreover, and critically important, she knew how to handle the insurance barriers that come with getting medical treatment.  Had I not completed my Healthcare POA, Living Will and HIPAA several years prior, I may have had a surgery from an inexperienced surgeon or worse yet, may have been paralyzed for life.  Additionally, had I not uploaded these precious documents with my local hospitals, I would not have had my healthcare agent’s phone number.

When I preach to clients about maintaining updated advanced directives I am preaching from experience.  I didn’t need them, until I needed them! Advanced directives are easy to obtain and require minimal effort to have them uploaded to local hospitals.  I implore you to have them drafted by an attorney or at the very least, complete them the next time you’re at your family care physician. For more information or to learn how Baron Law can help you complete your advanced directives, contact us at 216-573-3723.