Last Wills And Testaments

Essential Parts of an Estate Plan Include:

Last Will and Testament - A Last Will and Testament is a legal document that sets forth the testator's (the maker of the will's) desires and instructions as to how his or her property will be distributed upon his or her death. A will can also appoint the person or institution that will act as the testator's fiduciary, and it will set forth the powers the fiduciary are given to carry out the testator's wishes. A will can also be used to nominate the person who the testator would like to be the guardian of the testator's minor children, and the trustee to manage assets left to the minor children.

Power of Attorney - A Power of Attorney permits the agent (known as the attorney-in-fact) for the principal (the person granting the power of attorney) to act on behalf of the principal in business and personal transactions. This instrument cannot be used to make medical decisions. A general power of attorney is normally broad in nature. Typical powers granted are the right to execute, modify and terminate contracts; to buy, sell or transfer real or personal property; to adjust, compromise and settle claims; and to conduct and carry on the business affairs of the principal. Most general powers of attorney are revocable (meaning they can be canceled by the principal). The principal can revoke the power given to the attorney-in-fact by delivery of a written document which gives notice of the revocation of the power of attorney.

Durable Power of Attorney for Health Care - A Durable Power of Attorney for Health Care is used exclusively for authorizing the attorney-in-fact to make medical and health care decisions for the principal when the principal is no longer capable of making decisions for him or herself. In some case, a licensed physician may be required to determine when the principal is no longer capable of making decisions. This instrument requires the attorney-in-fact to make health care decisions which are consistent with the wishes of the principal. This instrument will not overrule a Living Will. The person named as the attorney-in-fact must be an adult who is not your physician, or the administrator of the facility in which you are receiving medical services.

Living Will - A Living Will is a document that expresses the wishes of a person regarding life sustaining treatment once the person has become terminally ill or permanently unconscious. The Living Will becomes effective only when you are unable to communicate your wishes, and are terminally ill or permanently unconscious. The instrument gives your treating physicians authority to follow your instructions regarding the use or non use of life sustaining treatment. The determination as to whether you are in a permanently unconscious state or terminally ill beyond medical help will be made by two physicians who are required to examine you, and agree that you are in the aforementioned condition.

Trusts - A trust can be created while you are living (called a Living Trust), or can be created by your Last Will and Testament (called a Testamentary Trust). A Living Trust is an agreement wherein the person creating the trust appoints a trustee to hold assets for the benefit of one or more beneficiaries. Typically, the person(s) creating the trust, the trustee, and the beneficiary are the same person. Most times, a husband and wife will create a Living Trust for their benefit while they are living, and upon the death of both spouses, their children become the beneficiaries of the Living Trust. A Living Trust may help to avoid probate, can help (in some instances) to minimize taxes, and can maintain assets for a period of time until a beneficiary reaches a certain age.

A Testamentary Trust has some of the same advantages as a Living Trust, however, it is not used to avoid probate, or to minimize taxes. The big advantage of a Testamentary Trust is that it is usually less expensive in terms of attorney fees and costs to create as compared to a Living Trust.

Real Estate Titles - A well thought-out estate plan can often allow you to transfer real estate outside of the probate process by use of Transfer-on-Death affidavits, Survivorship Deeds, and outright transfers during one's lifetime.

The estate planning and probate attorneys at Bailey & Gunderson welcome the opportunity to assist you with your estate planning and probate needs.

Since 1995, the law firm of Bailey & Gunderson has assisted estate planning and probate clients in the greater Cincinnati area (Hamilton, Clermont, Butler and Warren counties). If you have questions or need information about estate planning and probate, please call our Cincinnati office.

Frequently Asked Questions

  • I hear bankruptcy is a lot harder to file now. What is the difference?
    • Since Congress passed the new bankruptcy law in 2005, it is necessary to take two bankruptcy counseling courses. The first bankruptcy counseling course must be taken before you can file your bankruptcy petition, and the second bankruptcy counseling course must be taken before the court will issue the discharge order relieving you from your debt. Both bankruptcy counseling courses can be taken on-line for a small fee, and can be done in a few hours.

      There are also stricter requirements on who can get a total discharge of debts under a Chapter 7 bankruptcy. You must earn under a certain annual income for your area of residence, or you must be able to pass a means test provided for by the bankruptcy law. Under this means test, your income is matched against a formula for average monthly expenses in your area of residence to determine your monthly disposable income. Your debts are compared with your monthly disposable income to determine if you can afford to pay your debts. If you do not pass the means test, you may still get bankruptcy protection through a Chapter 13 bankruptcy where you pay some or all of your debts through a payment plan. While these restrictions limit some people, the bankruptcy attorneys at Bailey & Gunderson have found that the vast majority of people who need the protection of a bankruptcy are still able to take advantage of it.

  • Can I get all debts discharged through Bankruptcy?
    • Under Chapter 7 bankruptcy, you may get a total discharge of your debt. However, some of your debts may not be dischargeable. For instance, income taxes may not be discharged except where the debt is at least three years old, and you filed your income tax return timely. Student loans and child & spousal support obligations are also not dischargeable. Debts incurred through fraud are, likewise, not dischargeable. You may, however, apply to pay these debts through a Chapter 13 payment plan. The bankruptcy attorneys at Bailey & Gunderson can show you how.

  • What happens in a Chapter 13 bankruptcy plan?
    • In a Chapter 13 Bankruptcy plan, you typically pay your debts over a 3 to 5 year period. Each month, you make a payment amount (usually through a wage deduction order from your paycheck) which is then distributed by the bankruptcy trustee to your creditors. Secured debts, such an automobile loan, shall be paid through your Chapter 13 bankruptcy plan. Your non-secured debts will be paid from 1% to 100% of the total amount of your non-secured debt, and will be paid interest-free. The percentage of your non-secured debt that you must pay will initially be determined by the bankruptcy attorneys at Bailey & Gunderson. Once you have completed your Chapter 13 Bankruptcy plan, any remaining debts not paid through your Chapter 13 bankruptcy plan shall be discharged.

  • Will I lose my house, car or retirement savings by filing Bankruptcy?
    • The bankruptcy attorneys at Bailey & Gunderson will work with you to minimize the assets (if any) you may have to surrender when you file for bankruptcy. You are entitled to keep a certain amount of assets, which are "exempt", from seizure by creditors or the bankruptcy trustee. If the Chapter 7 bankruptcy exemptions do not provide enough protection, the bankruptcy attorneys at Bailey & Gunderson can develop a Chapter 13 bankruptcy plan that will preserve your assets.

      Working without an attorney, or with inexperienced counsel, may result in unpleasant surprises for you, as you may have to forfeit assets that you could have saved with better planning. The bankruptcy attorneys at Bailey & Gunderson can show you how.

      The attorneys at Bailey & Gunderson have filed over 1,000 bankruptcy cases. We offer a free initial consultation, and reasonable payment plans for our bankruptcy clients.

      Since 1995, the law firm of Bailey & Gunderson has assisted bankruptcy clients in the greater Cincinnati area (Hamilton, Clermont, Butler, Warren, and Brown Counties). If you have questions or need information about bankruptcy, please call our Cincinnati office at 866-540-8424, or email us.

  • Why Choose a Dissolution of Marriage?
    • A dissolution of marriage offers many advantages over a traditional divorce. The first consideration for many couples is that a dissolution of marriage is a much faster process than a contested divorce. Once your petition for dissolution of marriage has been filed, a hearing before a judge or magistrate shall occur within 30 to 45 days. A dissolution of marriage is usually much less expensive - both in terms of attorney fees and costs, as well as emotionally, because the spouses resolve the issues between them by agreement.

      It is a common misunderstanding that in a dissolution of marriage, the couple hires one attorney who works with them to resolve the issues and generate a separation agreement. In fact, an Ohio attorney can only represent one of the spouses. The family law attorneys at Bailey & Gunderson help to identify all of the issues which need to be addressed in your unique situation. Our firm will work with you to identify all of the assets and debts associated with the marriage, and to determine the most equitable and fair distribution of those assets and debts between the spouses. We also are committed to serving the best interests of your children. Some parents choose to have a shared parenting plan, which allocates the parental rights and responsibilities between the parents, including parenting time, child support, decision making, and payment of health insurance & expenses.

  • What Factors Does a Child Support Calculation Take Into Account?
    • Ohio child support law uses a formula to calculate child support. The law and the formula it establishes look at a number of factors in determining child support. These factors include:

      * The number of children involved

      * The gross annual income of both parents

      * The monthly child support obligations of either parent for other children

      * Existing spousal support obligations from previous marriages

      * Monthly day care, education and health care expenses

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