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Trust Lawyer Baron Law Cleveland Ohio

How To Use An Ohio Legacy Trust To Protect Family Assets

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Baron Law LLC, Cleveland, Ohio, offers information for you to reflect upon while you are setting out looking for an estate planning attorney to help protect as much of your assets as you can. For more comprehensive information contact Baron Law Cleveland to draft your comprehensive estate plan to endeavor to keep more of your assets for your heirs and not hand them over to the government by way of taxes.

If you have a trust more than eight years old, chances are you were not able to take advantage of an Ohio Legacy Trust. In March of 2013, Ohio became the fifteenth state to allow the use of domestic asset protections trusts, also known as Ohio Legacy Trusts. Legacy trusts are extremely useful in high-risk ventures or occupations such as doctors, entrepreneurs, real estate inventors, and venture capitalists. Legacy trusts give unprecedented control to trust makers and far reaching asset protection. Legacy trusts, however, are not the end all be all. Considering legacy trusts are still relatively new on the Ohio scene, no one can say for certain their permanent place in Ohio estate planning. Further, because the advantages with Ohio legacy trusts are so extreme, the legal hurdles and requirements are, correspondingly, stricter. As such, call your local Cleveland estate planning attorney and see if taking advantage of this relatively new estate planning vehicle is right for you and your goals.

I. What is an Ohio Legacy Trust?

Before 2013, in Ohio, the law was that you could not create a trust for yourself, fund it with your own money, name yourself as a beneficiary, and protect assets within the trust from creditors. Now, however, Ohio law allows a settlor to make an irrevocable trust for the purpose of protecting assets from creditors all the while naming themselves a discretionary beneficiary. Further, other beneficiaries, such as a spouse, children and charities, can also be named. If this sounds powerful to you, that’s because it is.

The main wrinkles with Ohio Legacy Trusts is that a third party, such as a bank or CPA, must be appointed trustee and valid creditors have a statutory opportunity to bring valid creditor claims before the asset protection kicks in. The Ohio Legacy Trust Act states that if 18 months have passed since forming the legacy trust, all future creditors, with some exceptions, that are not yet known will be foreclosed from getting trust assets via a lawsuit. Thus, an Ohio Legacy Trust is not an absolute protection against current creditors, but it does protect against almost all future creditors with respect to the assets placed in trust.

II. Why are Ohio Legacy Trusts used?

Aside from the previously mentioned asset protection, Ohio Legacy Trusts also give trust makers an extraordinary amount of control over trust assets and ability to effect trust management. Makers of Ohio Legacy Trusts can be both the creator and beneficiary and reserve for themselves numerous rights regarding the trust. Trust makers can reserve the following rights for themselves:

The right to receive income and principal from the trust in the trustee’s discretion. For example, the legacy trust could provide that all income is distributed to the beneficiary maker on a regular basis or that the beneficiary maker receives a fixed percentage of trust assets.

The right to withdraw up to 5% of the trust principal each year.

The power to veto a distribution from the trust.

Certain rights to control how trust property will pass to other beneficiaries after the trust maker’s death.

The right to remove and replace trustees and other trust advisors.

The right to occupy real estate and use tangible personal property held as part of the trust assets.

The right to distributions to pay taxes on income generated by the trust, or an interest in receiving such tax distributions in the discretion of the trustee.

The right to serve as investment advisor to the trustee.

III. What are the Requirements of an Ohio Legacy Trust?

In a nutshell, an Ohio legacy trust must have the following characteristics:

1) The trustee must reside in Ohio or be an Ohio entity authorized to do business in Ohio.

2) The trust must be irrevocable.

3) The settlor, i.e. trust maker, must draft and execute an affidavit of solvency, sometimes called an affidavit of disposition, swearing the following:

* The assets to be used to fund the trust are not from illegal activity,

* The settlor is the rightful owner of the assets,

* The settlor does not intend to file for bankruptcy,

* The settlor is not a party of any unidentified court or administrative proceedings,

* The settlor will not be rendered insolvent after the contemplated assets are used to fund the trust, and

* The settlor is not transferring assets to the trust with the intent to defraud creditors.

IV. What can an Ohio Legacy Trust not do?

Though the powers of Ohio Legacy Trusts are expansive, they are not without limitation. An Ohio Legacy Trust cannot be used with the intent to defraud creditors. Further, it is a hard rule in Ohio law that these trusts do not protect against child support and alimony support claims. Furthermore, a settlor cannot make themselves insolvent while funding the trust and the trust cannot give a settlor the power to revoke the trust. Also, being that Ohio Legacy Trusts are grantor trusts, the settlor is responsible for paying income tax on all money generated by the trust.

Ohio Legacy Trusts are a great new tool to utilize for the right estate planner, but their use is not without risk. Assets placed in trust are no longer in the settlor’s direct control and it is no guarantee that these trusts will be recognized in other states. The biggest drawback is that Ohio Legacy Trusts only protect against future creditors, not current ones. That said, Ohio Legacy Trusts are an option that should be explored by anyone looking to protect their assets and increase the longevity of such assets. Contact an experienced Cleveland estate planning attorney and find out more about these trusts and how they can work for you.

Helping You And Your Loved Ones Plan For The Future


About the author: Mike E. Benjamin, Esq.

Mike is an attorney at Baron Law LLC who specializes in civil litigation, estate planning, and probate law. He is a member of the Westshore Bar Association, the Ohio State Bar Association, the Cleveland Metropolitan Bar Association, and the Federal Bar Association for the Northern District of Ohio. He can be reached at mike@baronlawcleveland.com.

Disclaimer:

The information contained herein is general in nature, is provided for informational and educational purposes only, and should not be construed as legal or tax advice. The author nor Baron Law LLC cannot and does not guarantee that such information is accurate, complete, or timely. Laws of a particular state or laws that may be applicable in a given situation may impact the applicability, accuracy, or completeness of the preceding information. Further, federal and state laws and regulations are complex and subject to change. Changes in such laws often have material impact on estate planning and tax forecasts. As such, the author and Baron Law LLC make no warranties regarding the herein information or any results arising from its use. Furthermore, the author and Baron Law LLC disclaim any liability arising out of your use of, or any financial position taken in reliance on, such information. As always consult an attorney regarding your specific legal or tax situation.

Baron Law Cleveland Ohio

How Do I Force A Trustee To Tell Me What’s In A Trust?

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Baron Law LLC, Cleveland, Ohio, offers information for you to reflect upon while you are setting out looking for an estate planning attorney to help protect as much of your assets as you can.  For more comprehensive information contact Baron Law Cleveland to draft your comprehensive estate plan to endeavor to keep more of your assets for your heirs and not hand them over to the government by way of taxes.

Trusts are one of the most useful tools in the estate planning tool box. Special needs trusts ensure vulnerable children and beneficiaries can receive bequests or inheritances without being knocked off of critical state and federal benefits while a simple family trust can guarantee income and assets placed within it last for generations and are, for the most part, protected from creditors and litigants. The lynchpin of any trust, however, besides the trust documents themselves, is the trustee. The agent in charge of managing trust assets and carrying out trust instructions.

A lot of faith and trust are placed within trustees. Unfortunately, not all trustees are up to the task and some even use their position for ill gain. Some trustees are lazy, some are disinterested. Other trustees are combative, others are downright criminals. Trustees come in all types. The process for removing a trustee, seeking civil or criminal action against a trustee, or simply finding out what a trustee knows all start at the same spot. A trust beneficiary, or other interested party, must force a trustee to tell them what they know and Ohio law has provided a process to do just that. The process is called a petition to compel an accounting or sometimes a citation to a fiduciary to file an account.

This process, naturally, is often the route of last resort when something has gone horribly wrong with a trustee or fiduciary. For example, failure of an executor to file a notice of admission for will to probate, or a failure render an account of an executor’s or administrator’s estate administration, or failure to file the first estate accounting within the 3-month time limit without good cause shown. Basically, citations to compel accounting are used when those entrusted to look after the money don’t follow the rules or tell anybody what they are doing. Again, getting a probate court involved with a difficult or non-responsive fiduciary should always be a last resort. As such, always consult an experienced Cleveland estate planning attorney to find out your best course of action in the circumstances.

How do I compel a trustee accounting?

Generally, to get a court to do anything, there has to be statutory language on the books that give you the authority/right to do something. Ohio law provides that particular qualified people can petition the court to force a fiduciary or trustee to appear and tell what they know and bring evidence to back it up.

“If a fiduciary neglects or refuses to file an account, inventory, certificate of notice of probate of will, or report when due,… the court at its own instance may issue, and on the application of any interested party or of any of the next of kin of any ward shall issue, a citation … to such fiduciary …. to compel the filing of the overdue account, inventory, certificate of notice of probate of will, or report.” O.R.C. § 2109.31(A).

What does a citation for accounting contain?

The citation or motion to compel is a legal document filed with a particular probate court that asks the court to use its authority to force a fiduciary or trustee to appear at a certain time in a certain place or face the consequences. Ohio law specifies that such a request must be a proper form so the court knows exactly what you’re asking the court to do and so the trustee or fiduciary knows exacts what to do to satisfy the court’s request and avoid any adverse consequences. So, what information does your request actually need to contain. Per O.R.C. § 2109.31(B):

(1) A statement that the particular account, inventory, certificate of notice of probate of will, or report is overdue;

(2) An order to the fiduciary to file the account, inventory, certificate of notice of probate of will, or report, or otherwise to appear before the court on a specified date;

(3) A statement that, upon the issuance of the citation, a continuance to file the account, inventory, certificate of notice of probate of will, or report may be obtained from the court only on or after the date specified…

A motion to compel accounting is a particular legal document that should be prepared by a licensed attorney. Nonconformity with the state and local rules of form and filing can waste a lot of time and money and frustrate a judge and their support staff, not ideal when your asking for the court’s help. Hiring a knowledgeable Ohio estate planning attorney will ensure your filing is accepted and in proper order.

What if a trustee doesn’t appear?

If a citation to compel accounting is issue from a probate and a fiduciary or trustee fails to file the requested documents or personally report prior to the appearance date specified in the citation, a probate court may resort to one or more of the following:

The removal of the fiduciary or trustee;

A denial of all or part of the fiduciary fees;

A continuance of the time for filing the requested documents;

An assessment against the fiduciary of a penalty of one hundred dollars and costs of twenty-five dollars for the hearing, or a suspension of all or part of the penalty and costs; or

That the fiduciary is in contempt of the court for the failure to comply with the citation and that a specified daily fine, imprisonment, or daily fine and imprisonment may be imposed against the fiduciary, beginning with the appearance date, until the account, inventory, certificate of notice of probate of will, or report is filed with the court;

Furthermore, if a fiduciary or trustee fails to appear in court on the specified date on the citation, a probate court can even go as far as ordering them to be taken into custody by a sheriff and forcibly brought to court.

The potential consequences facing non-compliant fiduciaries are severe, however, utilizing the court should only be used in extreme circumstances or as a last resort. As such, consult experienced Cleveland estate planning attorney before doing anything so serious. Doing so will ensure that the process is done correctly and expediently.

Helping You And Your Loved Ones Plan For The Future

About the author: Mike E. Benjamin, Esq.

Mike is a contracted attorney at Baron Law LLC who specializes in civil litigation, estate planning, and probate law. He is a member of the Westshore Bar Association, the Ohio State Bar Association, the Cleveland Metropolitan Bar Association, and the Federal Bar Association for the Northern District of Ohio. He can be reached at mike@baronlawcleveland.com.

Disclaimer:

The information contained herein is general in nature, is provided for informational and educational purposes only, and should not be construed as legal or tax advice. The author nor Baron Law LLC cannot and does not guarantee that such information is accurate, complete, or timely. Laws of a particular state or laws that may be applicable in a given situation may impact the applicability, accuracy, or completeness of the preceding information. Further, federal and state laws and regulations are complex and subject to change. Changes in such laws often have material impact on estate planning and tax forecasts. As such, the author and Baron Law LLC make no warranties regarding the herein information or any results arising from its use. Furthermore, the author and Baron Law LLC disclaim any liability arising out of your use of, or any financial position taken in reliance on, such information. As always consult an attorney regarding your specific legal or tax situation.


Baron Law Cleveland Ohio

T.O.D. Designations to Avoid Probate

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Baron Law LLC, Cleveland, Ohio, offers information for you to reflect upon while you are setting out looking for an estate planning attorney to help protect as much of your assets as you can.  For more comprehensive information contact Baron Law Cleveland to draft your comprehensive estate plan to endeavor to keep more of your assets for your heirs and not hand them over to the government by way of taxes.

One of the more common topics posed to Ohio estate attorneys always concerns how to avoid probate and the accompanying costs of going through a probate administration. Namely, can an individual transfer property, particularly a martial home, and avoid probate without using more intensive estate planning tools? In many situations trusts afford more control and security over estate assets but for smaller estates, T.O.D. designations can fill a critical role and affording surviving family members partial peace of mind when a loved one passes. Talk to a local Ohio estate attorney to find out if a trust-based strategy or hybrid trust/T.O.D. plan would work best for your situation.  

What is a T.O.D. designation? 

At the most basic level, transfer on death “T.O.D.” designations are a way to transfer real and certain personal property to named beneficiates at the moment of death. The law construes the transfer as occurring just prior to death so the property is conveyed independent from the probate process. Thus, if the property isn’t a part of the probate estate, it normally isn’t subject to all the claims and debts of the decedent’s estate.  

T.O.D. designations are usually seen with bank accounts, real estate, and automobiles and, as such, the processes for using T.O.D.’s for these types of property are well established. Which is good, because usually these types of assets represent the lions share of an estate. Contract a Cleveland area attorney to find out if, and how, T.O.D. designations can be used to save you thousands in estate fees and administration costs.  

Why would I use a T.O.D. designation? 

As previously stated, the major benefit of using a T.O.D. is probate avoidance. Thus, the property usually isn’t subject to debts and creditors of the estate and the property isn’t tied up for months while the affairs and accounting of the estate are concluded. Most, if not all, beneficiaries and heirs want their property as soon as possible.  

It is important to note, however, that a T.O.D. designation has no effect on the present ownership of the associated property and any beneficiary of a T.O.D. has no rights or interest in the property during the owner’s lifetime.  

The owner of the T.O.D. designation can change or revoke such designation at any time by executing and filing/recording a new designation. A T.O.D. transfer, however, does not eliminate the need to pay applicable federal estate taxes. Further, beneficiaries of a T.O.D. should be aware of the tax consequences of accepting a T.O.D bequest. Contacting a knowledgeable Ohio probate attorney can appraise you of any unforeseen tax liabilities.  

How to do I do a T.O.D. designation? 

For Land: 

Per O.R.C. § 5302.222, “The transfer of a deceased owner’s real property or interest in real property as designated in a transfer on death designation affidavit…shall be recorded by presenting to the county auditor of the county in which the real property is located and filing with the county recorder of that county an affidavit of confirmation executed by any transfer on death beneficiary to whom the transfer is made. The affidavit of confirmation shall be verified before a person authorized to administer oaths and shall be accompanied by a certified copy of the death certificate for the deceased owner.” 

In normal language, fill out, sign, notarize, and record the T.O.D. affidavit with the desired number of beneficiary designations then fill with a county recorder in the county where the property is located. There is no limit to the amount of primary and contingent beneficiaries you can put on a T.O.D. affidavit. Naturally, the more you put, the less proportion each will receive, and type of tenancy conveyed, and primacy of conveyance can all be specified as well and is dependent on the type of beneficiary status and land interest conveyed. For example, if you put that beneficiaries take as joint tenants, all beneficiaries will have rights to the whole by virtue of being joint tenants, regardless if the affidavit further specifies proportional bequests.  

Model T.O.D. affidavits can be found online and on such forms, there is a predetermined section in which you can add any number of beneficiaries, respective ownership proportion, and type of ownership. However, in the absence of tenancy specification, named T.O.D. beneficiaries take as tenants in common. Per § O.R.C. 5302.23 (B)(1), “If there is a designation of more than one transfer on death beneficiary, the beneficiaries shall take title to the interest in equal shares as tenants in common, unless the deceased owner has specifically designated other than equal shares or has designated that the beneficiaries take title as survivorship tenants, subject to division (B)(3) of this section. A tenancy in common presents different issues regarding survivorship and concurrent ownership. Contact a local Ohio estate attorney to find out what type of tenancy fits bests for your property and family situation.   

For Cars:s: 

The Ohio BMV has its own process for T.O.D. designations. Individuals who are the sole owner of a motor vehicle, watercraft, or outboard motor can elect to designate one or more beneficiaries to an Ohio title. To do so, the owner fills out, signs, notarizes BMV form 3811, Affidavit to Designate a Beneficiary, then files such with the county title office where the vehicle is located. Beneficiaries can be individuals, corporations, organizations, trusts, or other legal entities. After the form is properly filed and accepted, a new title is issued with the T.O.D. designation on record. An Ohio estate attorney can assist you in gathering the required forms and documents and make sure the are filled out and filed properly.      

To effectuate a T.O.D. transfer, the designated beneficiary brings to the title office, of the county in which the vehicle is located, the Ohio title, a certified copy of the death certificate, BMV form 3774, government-issued identification card, and adequate payment for title fees.   

T.O.D. designations are becoming a more popular tool in estate planning to save on estate administrating costs and simplify one’s estate. Granted, T.O.D. may potentially save on costs, however, they afford no protection against creditors and debts during the lifetime of the owner and afford no control after the death. Using T.O.D.’s may seem simple, however, in application transferring significant assets seldom ever is. A knowledgeable Ohio estate attorney is in the best position to advise on the costs and benefits of using T.O.D.’s in an estate plan.  

You don’t have to be rich to protect what you’ve spent a lifetime trying to build. To find out whether a trust is right for your family, take the one-minute questionnaire at www.DoIneedaTrust.com. There are a number of different trusts available and the choices are infinite. With every scenario, careful consideration of every trust planning strategy should be considered for the maximum asset protection and tax savings. For more information, you can contact Mike Benjamin of Baron Law LLC at 216-573-3723. Baron Law LLC is a Cleveland, Ohio area law firm focusing on estate planning and elder law. Mike can also be reached at mike@baronlawcleveland.com.  

Helping You And Your Loved Ones Prepare For The Future

About the author:

Mike is a contracted attorney at Baron Law LLC who specializes in civil litigation, estate planning, and probate law. He is a member of the Westshore Bar Association, the Ohio State Bar Association, the Cleveland Metropolitan Bar Association, and the Federal Bar Association for the Northern District of Ohio. He can be reached at mike@baronlawcleveland.com.   

 

Disclaimer:

The information contained herein is general in nature, is provided for informational and educational purposes only, and should not be construed as legal or tax advice. The author nor Baron Law LLC cannot and does not guarantee that such information is accurate, complete, or timely. Laws of a particular state or laws that may be applicable in a given situation may impact the applicability, accuracy, or completeness of the preceding information. Further, federal and state laws and regulations are complex and subject to change. Changes in such laws often have material impact on estate planning and tax forecasts. As such, the author and Baron Law LLC make no warranties regarding the herein information or any results arising from its use. Furthermore, the author and Baron Law LLC disclaim any liability arising out of your use of, or any financial position taken in reliance on, such information. As always consult an attorney regarding your specific legal or tax situation.

Baron Law Elder Care Attorney

Trustees – Part II: Duty To Keep Adequate Records

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Baron Law LLC, Cleveland, Ohio, offers information for you to reflect upon while you are setting out looking for an estate planning attorney to help protect as much of your assets as you can.   For more comprehensive information contact Baron Law Cleveland to draft your comprehensive estate plan to endeavor to keep more of your assets […]

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Trustees – Part I – You’re Named A Trustee, What Duties Do you Have?

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Baron Law LLC, Cleveland, Ohio, offers information for you to reflect upon while you are setting out looking for an estate planning attorney to help protect as much of your assets as you can.  For more comprehensive information contact Baron Law Cleveland to draft your comprehensive estate plan to endeavor to keep more of your assets […]

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Baron Law LLC Cleveland Ohio

Why Avoid Probate: Asset Valuation Expense

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Cleveland, Ohio, estate planning law firm, Baron Law LLC, Cleveland, Ohio, offers information for you to reflect upon while you are setting out looking for an estate planning attorney to help protect as much of your assets as you can.   For more comprehensive information contact Baron Law Cleveland to draft your comprehensive estate plan to endeavor […]

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Baron Law Estate Planning Lawyer - Cleveland, Ohio

How Can I Amend An Existing Will?

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Cleveland, Ohio, estate planning lawyer, Daniel A. Baron, Ohio, offers the following information on what documents are necessary for you to provide your attorney when sitting down to establish your comprehensive estate plan.

 

One of the primary goals of drafting a will is to encapsulate the entirety of a life’s material assets and leave instructions for the dispensation of those assets after death. The other goal is to leave some legacy, emotional, spiritual, or otherwise, to friends and family by communicating final wishes so at least some minor part of ourselves persists, at least for a little bit, after we’re gone. Implicit in the pursuant of these goals is the assumption that the circumstances and realities of the present will mirror those of the future. That, however, is never the case. Time passes, the world changes, and we change with it.

More often than not, the initial draft of a will is not definitive. Family dynamics shift, executors and beneficiaries pass away, people move, assets are conveyed, trusts are established to avoid probate and preserve assets, and the law changes. As such, wills often need to be updated or outright rewritten. Wills, however, are legal documents. As such, you can’t just edit a will with red pen and call it a day. There are particular ways to change a will, each with its own rules and procedures. As always, if your will needs changing, or if you don’t have a will at all, contact an Ohio estate attorney. No one wants to leave their family a confusing or invalid will to deal with during the mourning process.

Codicil

An amendment to a will is called a codicil. Codicils are the primary way to amend a will in Ohio and are meant to amend, alter, or confirm a previously existing will. A codicil doesn’t override a will but becomes a new part of the document. Codicils must be executed with the same formalities as a will. That is, it must be in writing, signed by the person drafting it, and witnessed by two disinterested parties who either saw the person sign or heard them acknowledge their signature. Further, the testator, the person making the will or in this instance the codicil, must possess sufficient legal capacity. That is, be 18 years of age, of sound mind and memory, and not under undue threat or influence.

Codicils are largely holdovers from the past before the existence of Microsoft Word and typewriters. Back then, wills were long, handwritten, and required multiple parties to be physically present during execution. As such, a simple amendment, rather than total rewriting, saved time and expense. Nowadays, though, since wills can be quickly amended and printed, drafting a new will is preferable.

Codicils do possess some persisting utility. In a medical crisis or where a person is on an extreme fixed income, use of a codicil may be viable. Codicils, however, are potentially problematic. Codicils can be executed improperly, establish an ademption, i.e. bequeathing property no longer owned or in existence, mistakenly revoke otherwise valid will provisions, or create ambiguity during probate. Further, any codicils must accompany the associated will. So, the misplacement or destruction of a valid codicil is a major concern when probating a will. Drafting a new will avoids these problems. Contact a Cleveland estate planning attorney to see what option is preferable for your particular circumstances. At minimum, an attorney can guarantee your family can actually find a will, and all the accompanying codicils, when the time comes.

Revocation

The other method of changing a will in Ohio is revocation, and subsequent redrafting. A will is revoked primarily the following ways:

1) a testator, with the intent to revoke, tearing, canceling, obliterating, or destroying a will.

2) an agent of testator, within the presence of testator or with testator’s written direction, doing the same.

3) by another written will or codicil, signed, attested, and subscribed according to the laws of Ohio.

Further, a revocation must have the same state of mind as with will creation, i.e. sound mind and body with no undue influence.

These methods of revocation are available if a will hasn’t been filed with a probate court. In the event that a will was filed, one must file a petition with the relevant probate court, using the standardized forms provided, and ask that the will be revoked. If the court determines that the revocation is valid, it will recognize the revocation and note it in public record.

Revoking a will is often simpler than drafting codicils. Every time concurrent estate documents exist and need to be read together, considerations with conflicting and superseding terms, ademptions, and ambiguity must be addressed. Furthermore, a probate court might reject a codicil which will likely throw an entire estate plan in disarray and balloon probate costs. Such costs are borne by the estate and might outright consume any money slotted to go to surviving friends and family. An Ohio estate planning attorney is in the best position to advise on the sufficiency of an existing will and whether revocation and redrafting is justifiable in your current circumstances.

 

Tangible Personal Property Memoranda

Though not available in Ohio, another potential method to amend a will is with a tangible personal property memorandum, “TTPM.” Most people use simple language to bequest remaining personal property to surviving friends and family. Usually by either leaving everything to the surviving spouse or to children in proportional shares. Facially, this seems like a fair and simple way to distribute an estate. In application, though, issues often arise. Certain children may feel snubbed or offended by a particular asset distribution or manner of distribution, as often is the case when one adult child served as a caregiver for ailing parents but received the same proportional estate share that less selfless children received. Further, often estate assets cannot be spilt equally. For example, splitting a timeshare in Aspen between three children and six grandchildren. Addressing and preventing these problems is where a personal property memo comes in.

As previously mentioned, this method of will amendment is not recognized as valid by Ohio courts and will be disregarded. This places an even greater emphasis on forethought when creating an estate plan and use of clear and concise language for bequests. An experienced Ohio estate attorney will know the common pitfalls and how to avoid them.

A few hours of planning can save thousands of dollars down the line and avoid embarrassing family infighting over who gets what. Life is perpetual change and estate planning attorneys try valiantly to predict the future and address any and every circumstance. Try as they may, however, the only thing one can expect is the unexpected. Therefore, it is always wise to be flexible and not to become entrenched in now old and defunct legal documents. Even if an estate plan covers 95% of what you need, the 5% unaddressed can easily cripple any well laid plan and lead to a lifetime of savings and earnings being extinguished by taxes, creditors, or penalties.

For more information, you can contact Mike Benjamin of Baron Law LLC at 216-573-3723. Baron Law LLC is a Cleveland, Ohio area law firm focusing on estate planning and elder law. Mike can also be reached at mike@baronlawcleveland.com.

 

Helping You and Your Loved Ones Plan for the Future.

 

About the author: Mike E. Benjamin, Esq.

Mike is a contracted attorney at Baron Law LLC who specializes in civil litigation, estate planning, and probate law. He is a member of the Westshore Bar Association, the Ohio State Bar Association, the Cleveland Metropolitan Bar Association, and the Federal Bar Association for the Northern District of Ohio. He can be reached at mike@baronlawcleveland.com.

Disclaimer:
The information contained herein is general in nature, is provided for informational and educational purposes only, and should not be construed as legal or tax advice. The author nor Baron Law LLC cannot and does not guarantee that such information is accurate, complete, or timely. Laws of a particular state or laws that may be applicable in a given situation may impact the applicability, accuracy, or completeness of the preceding information. Further, federal and state laws and regulations are complex and subject to change. Changes in such laws often have material impact on estate planning and tax forecasts. As such, the author and Baron Law LLC make no warranties regarding the herein information or any results arising from its use. Furthermore, the author and Baron Law LLC disclaim any liability arising out of your use of, or any financial position taken in reliance on, such information. As always consult an attorney regarding your specific legal or tax situation.
“He who is always his own counselor will often have a fool for his client.” Old English Proverb est. circa

 

Daniel A Baron - Baron Law Cleveland

Dying Without A Will – A Mess for Your Family To Clean-up

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Baron Law LLC, Cleveland, Ohio, offers information for you to reflect upon while you are setting out looking for an estate planning attorney to help protect as much of your assets as you can. For more comprehensive information contact Baron Law Cleveland to draft your comprehensive estate plan to endeavor to keep more of your assets for your heirs and not hand them over to the government by way of taxes.

No one likes it think about death, and even less people actively prepare for its inevitable occurrence. With everything that makes up life, job, family, recreation, there aren’t enough hours in the day to do what we need to do or want to do, let alone do what we despise. Thinking about death and how life will continue on regardless of whether we are here or not isn’t a fun concept people like to dwell on. Estate planning, or lack thereof, has tremendous consequences for surviving friends and family. A proper estate plan can mean the kids get to go college and the surviving spouse gets to stay in the house and doesn’t have to get a second job. No estate plan means the martial home gets sold to pay off debts and necessities or the surviving kids blow through an investment portfolio shrewdly managed for 25 years in 6 months. A local Cleveland estate planning attorney can create a customized estate plan with supporting documents to ensure that your friends and family are in the best position when your gone and avoid familial infighting and asset waste.  

Apart from the absolute chaos and/or squandering of a lifetime of assets which may result from a lack of estate planning, what are the practical consequences of not having a will?  When a decedent does not have a valid will in existence at the time of death, a decedent is deemed to have died intestate and Ohio intestacy laws govern how estate assets are managed and distributed. Ohio intestacy laws may be avoided altogether with proper estate planning. It is important, however, to be familiar with these laws because they may apply for a variety of reasons in a variety of situations. Sometimes intestacy laws will control even if a valid will is subject to probate administration. Conversely, sometimes Ohio intestacy laws may not apply even if a decedent died intestate. As such, since the controlling law for dying without a will can be flexible, an estate planning and/or probate lawyer is highly recommended.  

One example where intestacy laws are inapplicable even if decedent died without a valid will is where the estate assets in question would not have been part of the decedent’s probate estate if the decedent had a will. An example of this situation is property that is owned jointly with right of survivorship. This type of ownership will pass to the surviving joint owner by operation of law irrespective to the terms of the decedent’s will or intestacy statutes. The same is true for bank accounts or other assets with valid payable on death (POD) or transfer on death (TOD) designations. Property that the decedent transferred to a trust during life will not typically become part of the decedent’s probate or intestate estate.   

The most common situation where intestate law applies is when a will is declared invalid by a probate court because it was not executed in accordance with the requirements under Ohio law. The same holds true if a will is set aside for other reasons, such as fraud in the execution. Further, even if a decedent’s will is found valid and is not set aside, there can be many circumstances where intestacy laws still apply. One such circumstance is that a will fails to dispose of all of the decedent’s property because it does not have a residuary clause. This outsight is becoming more common with the use of services like Rocket Lawyer and LegalZoom. Ensuring that estate planning documents are properly executed, drafted, and filed is a major reason why estate planning attorneys are employed and retained. Doing it yourself may be cheaper in the short-term, but when it counts the most, self-drafted estate document all too often fail to make the grade.  

So, apart from not knowing whether intestacy laws will apply or not, what’s the big deal dying intestate?  

In a nutshell, dying intestate can have serious consequences for surviving friends and family and, most importantly, can affect the amount of  estate money and assets available, who those assets go to, and when those assets are distributed. First off, dying intestate means a decedent has very little, if any, direct control over who gets what and when. That is decided per the laws of intestacy. So, if you have two children, one is rich and doesn’t need any more money and the other has addiction issues and can’t be trusted, but you have a niece who just got accepted to Harvard but can’t afford it, too bad, you can’t help out your niece if you die intestate. Further, dying intestate means the court has to administrate the estate, which takse a lot longer than direct bequests in a will. Instead of potentially almost instantaneous transfer of money and assets, you likely have to wait at least six months to distribute estate assets. During this time, surviving friends and family are angry they haven’t gotten their share, the legal fees are running for the attorney, the fees are running for the estate administrator, and you’re paying taxes and upkeep on any estate assets that require such.  

Furthermore, subjecting an estate to intestate administration means creditors and litigants have almost free reign to bring claims against intestate assets. If an estate is properly planned and organized, there are ways to protect most if not all of an estate’s assets from these outside threats. As previously mentioned before, an intestate estate requires an administrator. This person is appointed by the probate court, it may be a family member, it may not be. Hopefully, they will be competent, responsible, and honest, but if an estate fiduciary isn’t proactively appointed, who know who’ll be appointed. Ohio law subjects estate fiduciaries to steep penalties for incompetence and misconduct, there is a reason for this. History is rife with examples of fiduciaries wasting or absconding with estate assets. After you’ve spent a lifetime working, saving, and building, why put it all in the hands of a strange or irresponsible or inexperienced family member. This is why Ohio estate attorneys exist, to help you protect a lifetime of labor and give to the people you love.  

Choosing to die intestate certainly is one way to do it but it is hardly the best way. Spending a little time to sit down with a probate attorney or estate planner will ensure that you’re proactively thinking about the future and putting your friends and family in the best possible situations and avoiding needless stress, confusion, and time waste. A last will and testament is the “core” of any estate plan. If you don’t have anything else, you must have a will. Simply put, its foolish not to even take this basic step.  

You don’t have to be rich to protect what you’ve spent a lifetime trying to build. To find out whether a trust is right for your family, take the one-minute questionnaire at www.DoIneedaTrust.com. There are a number of different trusts available and the choices are infinite. With every scenario, careful consideration of every trust planning strategy should be considered for the maximum asset protection and tax savings. For more information, you can contact Mike Benjamin of Baron Law LLC at 216-573-3723. Baron Law LLC is a Cleveland, Ohio area law firm focusing on estate planning and elder law. Mike can also be reached at mike@baronlawcleveland.com.  

 Helping You And Your Loved Ones Plan For The Future

About the author: Mike E. Benjamin, Esq.  

Mike is a contracted attorney at Baron Law LLC who specializes in civil litigation, estate planning, and probate law. He is a member of the Westshore Bar Association, the Ohio State Bar Association, the Cleveland Metropolitan Bar Association, and the Federal Bar Association for the Northern District of Ohio. He can be reached at mike@baronlawcleveland.com.   

Disclaimer:

The information contained herein is general in nature, is provided for informational and educational purposes only, and should not be construed as legal or tax advice. The author nor Baron Law LLC cannot and does not guarantee that such information is accurate, complete, or timely. Laws of a particular state or laws that may be applicable in a given situation may impact the applicability, accuracy, or completeness of the preceding information. Further, federal and state laws and regulations are complex and subject to change. Changes in such laws often have material impact on estate planning and tax forecasts. As such, the author and Baron Law LLC make no warranties regarding the herein information or any results arising from its use. Furthermore, the author and Baron Law LLC disclaim any liability arising out of your use of, or any financial position taken in reliance on, such information. As always consult an attorney regarding your specific legal or tax situation.

 

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Cleveland, Ohio, estate planning law firm, Baron Law LLC, Cleveland, Ohio, offers information for you to reflect upon while you are setting out looking for an estate planning attorney to help protect as much of your assets as you can.   For more comprehensive information contact Baron Law Cleveland to draft your comprehensive estate plan to endeavor […]

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