Estate Planning - Zashin Law

Dig into holiday spirit to help on-the-ground organizations

Year-end giving is a philanthropic tradition that holds special significance as the calendar draws to a close. As the final months of the year unfold, individuals, corporations and foundations often reflect on their achievements, growth and the impact they can make on the world. This introspection often culminates in a surge of generosity and charitable donations, collectively known as year-end giving.

Aside from altruistic reasons for giving, there are also other more practical considerations as well.

One of the primary reasons for the increase in charitable contributions toward the end of the year is the holiday season, and with it, the holiday spirit. Tax planning is another great motivator for year-end giving. Specific advantages vary depending on a particular individual’s circumstances, but charitable giving can create a win-win for both the giver and recipient. Some individuals may also benefit from giving for estate planning objectives. Whatever the reasons, giving might create opportunities for the giver.

The festive season, marked by holidays like Thanksgiving, Chanukah and Christmas, fosters a sense of compassion and goodwill. Many people are inspired to share their blessings with those who are less fortunate, making it a time when charitable organizations experience heightened support. The act of giving during the year-end becomes a way for individuals to spread joy, hope, and make a positive difference in the lives of others. Now, especially, during this time of crisis and conflict, it is more imperative than ever for individuals and entities to tap into this holiday spirit and support those in need.

Donations to on-the-ground organizations in Israel and Gaza play a vital role in providing immediate relief and assistance to those innocent victims affected by the conflict. These organizations depend on financial contributions to deliver essential services, medical assistance and humanitarian assistance.

By donating to these organizations, you can give children, families and soldiers hope in the face of uncertainty regarding their loved ones, livelihood and safety. Your donations enable organizations to respond swiftly and effectively to the urgent needs of these communities, providing a lifeline to individuals who may be struggling to meet their basic needs.

Consider the following organizations when making donations this holiday season:

Magen David Adom: A donation to MDA, Israel’s national emergency service, helps purchase equipment for the rescue teams on the front lines and on the battlefields, directly in the face of danger. Donations are used to purchase ambulances, medical equipment, protective equipment, bandages and other equipment that helps save lives.
Israel Emergency Aid: Israel Emergency Aid is an Israeli organization committed to ensuring that every fighter has the necessary combat and defense gear they need to triumph over terrorism.
Friends of the Israel Defense Forces: Friends of the IDF is an organization authorized to provide for the welfare of soldiers in the IDF.
Jewish Federation of Cleveland: The Federation has launched its Israel Emergency Campaign to help provide immediate assistance to victims of Hamas’ terrorism and their families.

This article originally appeared as a column for the Cleveland Jewish News.

unity_design2024-01-02T10:39:45-05:00January 2nd, 2024|Charitable Donations, Deductions, Estate Planning, Tax Planning|

Consider charitable contribution to honor man’s best friend

By Andrew Zashin*

Man’s best friend. A part of the family. Every day, dogs demonstrate their love and loyalty to their owners, which has inspired owners to leave some – or even all – of their estates to their beloved companions to ensure that these animals are well cared for after the owner’s death.

This may sound ridiculous, but it is not. More and more estate planning attorneys are incorporating provisions for prized pups into wills and trusts, and are requiring owners to consider things like what assets owners wish to leave for the pet’s care and well-being; who will care for the pet; and, what happens to any remaining assets set aside for the pet’s care after the animal’s death. Family lawyers are routinely asked to fight dog custody cases and even put together “pet parenting plans.” Some states even have statutes dealing specifically with pet custody! Pet issues, therefore, are real and can be complicated.

The most famous example of a pet-focused estate plan belongs to Leona Helmsley, a billionaire real estate mogul and hotelier who left a $12 million trust fund for her beloved dog, a Maltese named Trouble, while leaving nothing to two of her grandchildren. A court found that this $12 million inheritance exceeded the amount required to care for Trouble during her expected lifetime and ultimately reduced the trust to $2 million. In her estate planning, Helmsley entrusted her brother with Trouble’s care, but when he decided that he did not want to care for Trouble, one of Helmsley’s longtime staff members stepped up and cared for the pooch. When Trouble died in 2010, the remainder of the money set aside for her care reverted to the Leona M. and Harry B. Helmsley Charitable Trust, which Helmsley intended to provide for the “care and welfare of dogs.” The Helmsley Charitable Trust’s mission has since shifted to non-animal related causes.

Other notable examples of pet-prioritized estates include that of Gail Posner, who left her $8.4 million Miami Beach mansion and a $3 million trust to her three pups, and fashion icon Karl Lagerfeld, who similarly left a portion of his estimated $300 million net worth to his Birman cat, Choupette. While it is unclear what Posner and Lagerfeld intended for the remainder of the assets left to their respective pets after the death of each animal, this is an important question for pet owners to consider.

If an owner does not name a person or an entity to receive the remainder of the assets left for the care of a pet, the assets may revert to the owner’s estate after the pet’s death. This leads some owners to name a specific individual, like the person who provided care for the pet after the owner’s death, to receive the remainder of the assets. Others, like Helmsley, choose to honor the memory of their cherished family members and direct that any remaining assets from those set aside for the care and well-being of their pets be donated to a pet-focused charitable organization.

There are many charitable organizations committed to helping rescue and improve the lives of dogs and other animals, both locally and nationwide. I encourage you to consider contributing to pet-focused organizations like the Cleveland Animal Protective League, the Sanctuary for Senior Dogs, and the American Society for the Prevention of Cruelty to Animals, as well as to consider incorporating your pets and organizations like these into your estate planning. Man’s best friend will thank you for thinking of them.

This article originally appeared as a column for the Cleveland Jewish News.

Andrew Zashin2023-11-10T13:38:03-05:00February 16th, 2023|Charitable Donations, Estate Planning, Pets, Trusts, Wills / Living Wills|

Don’t overlook digital assets when protecting estate

By Andrew Zashin*

Now, more than ever, we regularly rely on our phones and other electronic devices to not only assist us in navigating our daily life, but also to also store information. This information and the devices which hold that information can range from important to some to invaluable to others. Therefore, have you ever considered what should happen to your possibly invaluable data and your essential devices upon your passing? If not, it may be worth revisiting your estate and probate documents to ensure that your digital asset directives are clear.

What are digital assets? Digital assets are anything from online accounts, including social media and emails, to photographs and documents that you store in your computer. Essentially, anything that’s not on paper and that you access with an electronic device is a digital asset including, but not limited to the following: online communication tools; social media accounts; shopping accounts; photo and video sharing accounts; video gaming accounts; online storage accounts; websites and blogs; and loyalty programs such as credit card, airline, car rental, hotel, etc., and any benefits that may have accrued over time.

In electing what happens to your digital assets upon death or incapacitation, it best practice to first identify your digital assets. In other words, inventory all your accounts, apps, programs and devices. This list should be kept in safe place but also somewhere where your fiduciary can get access. For instance, you can place the list in a safe deposit box or you can upload the information to an online storage site that allows you to give a trusted person access to the information.

Next step is creating or amending your estate documents to memorialize your digital asset directives. Fiduciaries and executors cannot demand access to your digital assets unless you specifically give them authority to do so. This may not matter so much if you wish for your Candy Crush Saga scores to die with you. On the other hand, without a written directive, your loved may not have the ability to access the hundreds of digital pictures on your phone or your iCloud.

In Ohio, you may authorize a fiduciary through a power of attorney, trust document, or will to have access or control over your digital assets following your death or possible incapacitation. Therefore, following your death or incapacitation, your fiduciary submits the pertinent document to the relevant online account manager to effectuate your directives.

However, it is important to note that some online accounts are governed by the “terms of service” or a “privacy policy” of that particular service, such as Facebook and Twitter, which wish for you to determine what should be done with your account after you die. For instance, Facebook offers a legacy contact and Google has an inactive account manager, which assumes that user will take the time to get their digital affairs in order in life.

If you are concerned about your loved ones having the ability to access accounts and other digital assets, you might want to consider giving your fiduciary the passwords to your digital assets and devices. This list should be kept in an extremely secure place and should be regularly updated as your passwords change. Further, if you are concerned about the managing of your digital assets following your death, it is best to speak with an estate planner to ensure that you have your bases covered.

This article originally appeared as a column for the Cleveland Jewish News.

Andrew Zashin2023-11-10T13:38:06-05:00March 18th, 2022|Digital Assets, Estate Planning, Power of Attorney, Wills / Living Wills|

When does a gift need gift tax return?

By Andrew Zashin*

Chanukah is right around the corner. So is the end of another tax year. Many are thinking of gift giving, and wanting to plan and budget smartly. This may be doubly true if you are thinking about your estate plan and if and how you can pass on your wealth during your lifetime. Depending on the size of any planned gift, you may need to consider IRS rules and the gift tax (or, at least, a gift tax return.)

First, know the gift tax is paid by the gift giver and not the recipient. Second, know that no gift tax is owed on gifts unless and until you have given away more than $11.4 million in cash or other assets during your lifetime as of 2019. Third, even though this exclusion will only ever be a concern for a small sliver of the population, a gift tax return, Form 709: U.S. Gift (and Generation-Skipping Transfer) Tax Return, must be filed with the IRS for any gift more than $15,000.

The annual gift tax exclusion allows you to give away gifts of up to $15,000 each, to as many recipients as you wish, without needing to file a gift tax return, and without those gifts counting against your total lifetime exemption. As an example, let’s say you want to give your grandchild $10,000 to save toward college expenses. And you want to give your adult child $30,000 to help with a home purchase.

The $10,000 gift is relatively straightforward. It falls below the annual gift tax exclusion amount of $15,000 (note this is the 2019 amount, and the exclusion can change from one tax year to the next), so no tax would be owed on it, and no gift tax return would be filed. The $30,000 gift is a bit more complicated. Unless you have already given away $11.4 million in assets (and if you are married each spouse can give away up to $11.4 million), you will owe no gift tax. But, you will still need to file a gift tax return because it exceeds the annual exclusion amount.

What if you then wanted to give another $20,000 to your other adult child to help pay for a wedding. This $20,000 gift will require a gift tax return because it is over the annual exclusion amount. The amount counted against your lifetime exclusion is $5,000 (or the $20,000 gift value minus the $15,000 annual exclusion).

Make sense? It sounds complicated, but the truth is that most people will never be concerned with the lifetime exemption. Most people will need only be concerned with whether or not they need to file a gift tax return to comply with federal tax laws. That said, this type of gift giving is frequently used for estate planning purposes in order to reduce the amount of a taxable estate, so if this might be an issue for you and your loved ones, it is important to seek assistance from qualified tax and financial planning professionals.

A few further points: Contributions to 529 college savings plans are considered gifts to the beneficiary of those funds. But a special rule has been carved out that allows a lump sum to be contributed and spread out over five years for purposes of the gift tax. And, some types of gifts are exempt from the gift tax altogether, such as charitable donations, gifts to a spouse, and gifts to pay for another’s education or medical expenses.

This article originally appeared as a column for the Cleveland Jewish News.

Andrew Zashin2023-11-10T13:38:10-05:00December 13th, 2019|Estate Planning, Gift Tax|

Five reasons to incorporate trust into estate plan

By Andrew Zashin*

Trusts have long been a tool for the ultra-wealthy to preserve wealth and pass it down through the generations. But even those of more modest means may benefit from this powerful estate planning tool. Here are five reasons to consider forming a trust:

To minimize the tax hit: True, the exclusion for estates and prior taxable gifts is $11.4 million, meaning most estates will not be taxable. But if your anticipated life insurance proceeds might tip you over that edge or if you intend for your life insurance to offset estate tax liability, an irrevocable life insurance trust could help to keep proceeds outside of your probatable estate and minimize the hit.
To maintain control of how assets are distributed: While a last will and testament specifies who might receive which of your assets, it does not control how those are used. A trust can ensure that funds are used for specific purposes, such as higher education. It can limit how funds are paid out to an individual, for example to secure ongoing support for a fiscally irresponsible heir. It can even provide for your favorite charitable or philanthropic organization.
To maintain privacy: Probate matters are public record. Theoretically, your nosy neighbor – or an estranged family member – could go to the courthouse and peek at probate court filings, read any filed will, view accounting filings, and, generally, see what you have in your estate. A trust provides a layer of privacy that the probate process would not otherwise provide. Even during life, a trust can help to provide a layer of privacy to your dealings and help to obscure certain information – the owner of real property, for example – in the public record.
To promote efficiency: Probate matters can be lengthy. The court process does not always move quickly and can be difficult to navigate. They can also be expensive, as an executor or administration of an estate is generally paid a percentage of the total value of assets managed. Assets that are held in a trust will not need to go through the probate process and can be handled more efficiently and potentially less expensively.
To keep wealth within the family: Perhaps you want to provide for your new spouse, but make sure that your children from your prior marriage are also provided for. A qualified terminable interest property trust can provide for a surviving spouse, but also provide for the subsequent transfer upon his or her death of any remaining assets to other selected beneficiaries. Generation skipping trusts (GSTs) are another means of preserving wealth through the generations.

Ultimately, the purpose of any estate plan is to direct your assets in accordance with your wishes and to create a legacy that is meaningful to you. A trust, properly created with the help of appropriate experts, can be an important tool in the creation of your legacy.

This article originally appeared as a column for the Cleveland Jewish News.

Andrew Zashin2023-11-10T13:38:10-05:00September 16th, 2019|Estate Planning, Trusts|

Make real estate part of your retirement planning

By Andrew Zashin*

When you think of preparing for retirement, what comes to mind? A 401(k)? A pension? An IRA? Social Security? Other savings? What about real estate? Maybe surprisingly, some prospective retirees are looking to real estate investments to help fund their golden years.

If you are interested in the prospect, know that you have several options.

One of the simplest ways is to invest in a real estate investment trust, generally known by the acronym, REIT. A REIT is effectively the real estate equivalent of a mutual fund. They own and typically operate real property that produces income, such as apartment buildings, warehouses, hotels, shopping centers and even timberlands. Some even provide financing. They can be private or public. And, perhaps most interesting for investors, they are subject to tax rules that require at least 90 percent of all taxable income be distributed to shareholders each year.

On the other hand, it can be difficult to get into the best-managed REITs. Income can be inconsistent. And, the required payouts can limit growth, as there will simply be less capital available for reinvestment.

Another option is to create an income stream through property rental. Some people may opt to own a second (or third, fourth, or 10th) home or building for purposes of renting it out. Others may opt to live in one part of a multi-family home or apartment building and rent the other units. Or, of course, commercial buildings can garner significant rents. And vacation rentals, whether rented with the assistance of a property management company or even a rental website like Airbnb, are likely to bill weekly, providing net amounts that can be much higher than other residential types of rentals, especially in popular tourist spots.

On the other hand, all types of rental properties require some capital. You may have ongoing expenses like a mortgage, management expenses, standard upkeep and improvements, and property taxes. To come out ahead, it is imperative to do some level of cost-benefit analysis to make sure the investment is likely to be worth it.

It may be enough to simply take equity out of your home. If you’ve paid off – or even just paid down – your home in the years leading up toward retirement, this could be a good option for you. Home equity loans and home equity lines of credit will permit you to borrow against the wealth that you have built up. Loan proceeds would then be available for other investment, payment of expenses, and the like. The downside is that these funds will need to be repaid, and the repayment terms will certainly need to be weighed against available cash flow and the benefit derived.

Finally, if you or your spouse are over the age of 62, a reverse mortgage might be a good option for you. This is an alternate type of mortgage loan that allows a homeowner to access the equity built up in his or her property. The equity funds are received at the inception of the loan and usually require no monthly repayment.

Instead, interest is added to the loan balance, which will be collected at the time the home is sold or the homeowner passes away. Borrowers will still be responsible for paying property taxes and home owner’s insurance, not to mention any repairs. The loan balance can grow beyond the actual equity available in the home, especially in a down economy. However, the borrower –or his or her estate – is not typically on the hook for any overage. But, it is important to understand that no value may be left for heirs.

Unless you are going to become a property tycoon, you will probably not be able to retire on real property alone. But, if you are looking for some supplement cash flow – or a lump sum of cash– these options may help you get there.

This article originally appeared as a column for the Cleveland Jewish News.

Andrew Zashin2023-11-10T13:38:11-05:00October 18th, 2018|Estate Planning, Real Estate, Retirement Planning|

Plan giving to maximize benefits to you, your favorite charities

By Andrew Zashin*

Whether you have $1,000 to give or $1 million, your estate plan may include some type of planned giving to your favorite charitable organization.

Planned giving at its most basic, simply means a donation that is made with consideration of the benefit to the recipient and to the donor (e.g. tax benefits) and possibly to future heirs as well. Often, but not always, the charitable organization will receive the benefit at some future point after the passing of the donor.

Planned giving generally allows for greater contributions than the donor could otherwise afford during his or her lifetime. For larger gifts, planned giving may provide lifetime income to the donor and can make the most of the gift while minimizing the impact on the donor’s estate.

Planned giving can be as simple as providing – most often in a will – for a specific item or gift to go to a specified organization. In that way, the executor of your estate will be able to enact your wishes by seeing that the funds or item (a piece of artwork or a vehicle, for example) is transferred appropriately as part of the settlement of your estate.

While real property could be conferred this way. too, Ohio has an additional option in the Transfer on Death Designation Affidavit. Previously, taking the form of a “transfer-on-death deed,” this document can be properly filed and recorded during the life of the donor and will allow the property to change hands by presenting evidence of the donor’s death to the county recorder, outside of and irrespective of any probate matter that is opened.

If your gift will be larger, you may benefit from a charitable gift annuity. These types of gifts may take several different forms. But, generally, these options will allow the donor to make an immediate donation that can provide a tax deduction. The organization then will invest the funds and pay an annualized benefit to the donor for his or her life. Once the donor passes, the remainder will go to the organization. Sometimes, funds will be pooled with those from other donors.

Charitable trusts are another way to give. Several options are available, depending on whether you would like to have the donation provide you with an income stream during your life, or whether you would like to provide an ongoing income stream for the organization with the residual to ultimately go to your heirs at some future point.

The bottom line is that planned giving is a terrific way to benefit your favorite causes and many options are open to you no matter how much you have to give. All it takes is, well, a little planning. And if you find yourself in need of some professional assistance, some larger charitable organizations can help with this directly, or a good financial planner can surely assist.

This article originally appeared as a column for the Cleveland Jewish News.

Andrew Zashin2023-11-10T13:38:11-05:00September 20th, 2018|Charitable Donations, Estate Planning|

A helpful blueprint to your last will and testament

By Andrew Zashin*

Less than half of the population has a last will and testament. Ohio law provides a way to divide the property, or “estate,” left behind when a person dies without a will.

Generally speaking, your estate will go to your spouse. Or, if you have no spouse, your estate will go to your children. If you have no children and no spouse, your estate will go to your parents, or your siblings, or their descendants, in that order.

In many cases, the intestacy laws may provide what you would like to see happen anyway. But so you may want to select the person who will be responsible for administering your estate. You may want to provide that the administrator be paid (or not paid) for his or her services.

And, if you are divorced and remarried, if you have children from different relationships, if you want certain people to receive specific heirlooms, accounts, or assets, or, really, if your situation is anything other than wanting to simply leave your estate to your spouse or children, it is so important to put your wishes formally in writing.

Here are some questions you will want to consider:

What assets are in your estate?

Many assets, such as accounts that are “payable on death” or jointly held, retirement accounts on which a beneficiary is named, life insurance policies, real property that is jointly held or else subject to a “transfer on death” designation, or assets held in a trust, will not be divided by the probate court (or by will.) Instead, those things will transfer to the joint account holder, beneficiary, or other payee. Anything otherwise in your name or owned by you is probably an estate asset.

What debts are in your estate?

You may have heard your debts do not survive you, and they usually go away upon death. It is true that loved ones will not generally be responsible for the debts of a deceased relative. However, it is important to note that the debtors – a mortgage holder, a credit card company, etc. – will have a claim against the estate and that debt will likely need to be repaid from the estate before your heirs will receive any inheritance.

Who do you want to inherit from your estate, and how?

An heir could be a person or an organization, and of course provisions are occasionally made for beloved pets. Keep in mind it is not really possible to completely write a spouse out of a will in the state of Ohio. A surviving spouse, by law, has the right to certain assets, despite what a will provides. You should clearly articulate all individuals you are intending to include, and any you may be intending to exclude, otherwise the probate court may incorrectly presume what you intended. In addition, you should think about what you want to see happen if one of your heirs predeceases you. Do their descendants inherit their share or something different?

Who do you trust to appropriately administer your estate, ethically and accurately handle funds, and enact your wishes?

Keep in mind that individual would have to ultimately accept the appointment. Typically, that individual would be paid for their services, usually proportionate to the size of the estate, but you may make some alternate request known if you feel it is appropriate.

If you have minor children you may specify your intention as to responsibility for their care. A court could ultimately decide that a different arrangement is more appropriate, but your wishes would doubtless be considered.

You are not required to hire an attorney to draft your will. But it is important to understand that certain formalities must be observed. For example, it must be signed by you and witnessed by at least two individuals who do not stand to benefit from the estate. And, more complex situations can get tricky, and you may find it useful to at least consult a will drafting software package, book, the Ohio Revised Code, or other how-to resources to be certain you are saying what you think you are.

This article originally appeared as a column for the Cleveland Jewish News.

Andrew Zashin2023-11-10T13:38:12-05:00March 14th, 2018|Estate Planning, Inheritance / Disinheritance, Property Division, Trusts, Wills / Living Wills|

Trust important part of life care plan for special needs loved one

By Andrew Zashin*

If you have a loved one with special needs, a trust could be a very important part of his or her life care plan. Generally speaking, a trust is created when someone manages property – usually money or real estate – for another person.

We often think of trusts as estate planning tools to conserve wealth for future generations. In the case of a special needs trust, the beneficiary or the person for whom the trust is created, is someone who is disabled or mentally ill and who lacks the capacity to manage his or her own finances.

This type of trust is intended to provide ongoing financial support for the beneficiary’s specific medical and lifestyle needs. And, it provides you with assurance that your loved one will be cared for when you are no longer able to do it yourself.

The definition of special needs is rather broad. Not only can a special needs trust help with medical and health care services and products, but it can be used for daily living needs such an accessible vehicle, modified communication devices or appropriate living arrangements like an assisted living or skilled nursing facility.

This money can fund recreational activities, hobbies and activities, or vocational activities, training and education for the beneficiary. It can be used toward professional services such as claims processing, attorneys, and accountants that may be hired to act on behalf of the beneficiary. Trust funds can even be used to provide for respite care for a caregiver.

The trustee typically will be a family member such as a parent or a sibling. But, if no appropriate family member is available, a third party can be appointed by a court. The trustee is tasked with smartly managing the funds or other assets, balancing the immediate needs and wants of the beneficiary against expectations that the funds will be used frugally so as to be available to provide for the beneficiary as long as possible. After all, the trust will generally continue on until either the beneficiary dies or the funds are exhausted.

Funding of the trust will vary widely, based on the available assets and the particular needs of the beneficiary. There is no minimum requirement for a special needs trust, and it can be funded with thousands of dollars, or millions. Generally, the funds will come from family assets, lawsuit proceeds, life insurance policies on the lives of the beneficiary’s parents, inheritances, etc.

Often, a prospective beneficiary qualifies for means-tested government assistance, i.e. assistance that is based on a recipient’s lack of resources, such as Supplemental Security Income, Medicaid, subsidized housing and the like. Special needs trusts are especially useful in those cases; with proper planning, the trust can subsidize expenses for a beneficiary without jeopardizing access to other benefits.

If you are looking to create a special needs trust for a loved one, it is imperative to get the right team behind you. A special needs trust is not something to do once and never look at again. Instead, you will want to work with a competent estate-planning attorney, and possibly a financial planner, to make sure the trust will continue to accomplish your goals for your loved one well into the future.

This article originally appeared as a column for the Cleveland Jewish News.

Andrew Zashin2023-11-10T13:38:12-05:00December 13th, 2017|Estate Planning, Life Care Planning, Special Needs, Trusts|

In estate planning for your minor children, think beyond just money

By Andrew Zashin*

This article originally appeared as a column for the Cleveland Jewish News.

Do you have minor children? Do you know what would happen to them if you were to pass away unexpectedly? This is never a pleasant topic to think about, but it is one of the most important estate planning decisions you can make.

Depending on your specific situation, the answer may be obvious. If a minor loses one parent, most often the surviving parent would simply assume custody. If the parents are divorced, or if they were never married, the domestic relations or juvenile courts may need to get involved depending on formal parenting plans that may already be in place. But from a legal perspective, it may be a simple matter.

On the other hand, if the surviving parent is estranged, unfit, or otherwise not around or uninvolved, the answer could become more complex. In that case, it may be necessary to seek the appointment of a “guardian.”

In general, anyone with some ties to the child could apply in the appropriate probate court to become the child’s guardian. Once appointed, that guardian would be expected to care for the child’s well-being just as a parent would, providing food, shelter, and clothing, and ensuring schooling and medical care. If the child has any assets, a guardian would be expected to manage those on behalf of the child as well.

In Ohio, as in many states, a person can be named as the guardian “of the person” or the guardian “of the estate.” A guardian of the person would be responsible for providing necessities and care and for decision-making regarding the child’s health and well-being, while a guardian of the estate would be tasked with management of the minor’s financial affairs, such as managing monies held in trust for the child. One person could feasibly fulfill both roles, or a different person might fulfill each. And, if the child has no significant assets, there may be no need for a guardian of the estate to be appointed at all.

Ideally, your wishes as to who should serve as your child’s guardian, and maybe a “backup,” or successor, guardian will be spelled out in your will. A probate court would not be required to follow a guardianship designation made in a will, but generally would, so long as that designation is in the interest of your child. It is also important to understand that just because you choose to name someone does not obligate them to accept the responsibility; they could decline to serve in that capacity.

For these reasons, it is important to consider carefully who you would trust with such responsibility and, ideally, discuss in advance if he or she would be willing to take on the job should it become necessary. If a significant inheritance or other monies could be involved, consider who you believe would handle those funds appropriately and in a manner that you would be satisfied with. And, if you have a spouse or co-parent, it is very important to discuss with him or her the identity of a successor guardian in the – however unlikely – event that neither of you would be around to care for your child. Any disputes will likely ultimately be resolved by a court, and it is far better to tackle this issue in advance via a clear and concise estate plan, rather than in a court of law after legal challenges.

Andrew Zashin2023-11-10T13:38:12-05:00September 19th, 2017|Child Custody, Estate Planning|

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