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In addition to a will, another important document that should be part of your estate plan is a living will. This legal document allows you to set forth directions about the use or non-use of artificial life sustaining support if you become “terminally ill” (an incurable and irreversible condition that will result in death regardless of treatment) or “permanently unconscious” (permanently unaware of yourself and your surroundings). Your living will becomes effective when you cannot communicate your wishes and two doctors who have examined you agree that your condition meets this classification.
Many of us remember the tragic saga of the Terri Schiavo case. In 1990, Mrs. Schaivo suffered massive brain damage following a cardiac arrest at her home. She was left comatose, and after two and a half months her diagnosis was changed to that of a persistent vegetative state. She did not have a living will. Mrs. Schiavo’s husband argued that she would not have wanted artificial life support, while Mrs. Schiavo’s parents did not agree and questioned the medical diagnosis. The ensuing legal battle spanned fifteen years and ended in 2005 with the removal of Mrs. Schiavo’s feeding tube and her death shortly after. It is hard to say what Mrs. Schiavo’s wishes were in this situation. It is entirely possible that she did not want artificial life sustaining support; however, it is equally plausible that she did. Without a living will, her family was left to guess what she would have desired. A living will avoids the guess work and removes the burden from your family to make this difficult decision. To discuss creating a living will, contact Jesse Bowman at the law office of Alexander, Webb & Kinman (513-228-1100). This information is intended to provide broad, general information about the law and is not intended to be legal advice. Before applying this information to a specific legal problem, readers are urged to seek advice from a licensed attorney. Generally speaking, a will is a legal document that coordinates the distribution of your assets after death and allows you to designate a guardian to care for your minor children. A will is important to have, as it allows you to communicate your wishes clearly and precisely. When someone dies without a will, then the State of Ohio divides your assets for you. This can lead to unintended and unwanted consequences (See Ohio Revised Code 2105.06 for a breakdown on how Ohio will distribute your things if you do not make the plan yourself: http://codes.ohio.gov/orc/2105.06).
Upon death, a probate estate is then opened for the deceased (in probate parlance this person is referred to as the "Decedent"). Probate is a legal proceeding where the validity of the will is established, and an "Executor" is appointed to manage the estate. This includes resolving claims from creditors and distributing the Decedent's assets in accordance with the will. If a person dies without a will, the court appoints an "Administrator" to perform a similar function, without the added benefit of the will's provisions to determine who gets what. While creating a will seems simple and websites allow you to "do-it yourself," there are considerations that go beyond just the document itself that should be discussed with a licensed attorney. Considerations that include using the right language to ensure that your wishes are carried out and titling assets to avoid probate. To discuss creating a will that is right for you, contact Jesse Bowman at the law office of Alexander, Webb & Kinman (513-228-1100). This information is intended to provide broad, general information about the law and is not intended to be legal advice. Before applying this information to a specific legal problem, readers are urged to seek advice from a licensed attorney. The Ohio State Bar Association ("OSBA") has a great resource section titled Law You Can Use. The experienced attorneys at Alexander, Webb & Kinman can help put the law to work for you.
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Authors
Attorneys Jesse Bowman; Max Kinman; Chris Alexander: David Wagner Archives
February 2020
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