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Why Every Parent Should Establish A Guardianship Within Their Estate Plan

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Cleveland, Ohio estate planning lawyer, Daniel A. Baron, offers information on why every parent should establish a guardianship for their minor children within their estate plan:

 

Estate Planning Lawyer

When is a guardianship necessary?

It is customary for the parents of minor children to make any and all legal decisions that are necessary to keep their children safe. There may come a time however, when the minor children need a guardianship established.

Some of the reasons in which a guardianship needs to be established are but not limited to:

  • The parent or parents are deceased
  • A minor inherits assets and the parent or parents are not qualified to make legal decisions
  • The parent or parents are not or cannot take care of the minor child any longer due to illness
  • The parent or parents cannot take care of the minor child any longer due to incarceration

What is role and responsibilities of the guardian?

  • Has the right to deny certain persons to come in contact with minor child or restrict the interaction with certain persons
  • Become the minors fiduciary by keeping inventory and control of all assets
  • Investing minors child’s assets
  • Pay the minor child’s bills
  • File income taxes annually
  • Decide where the minor child shall live

In some cases if you are a guardian you may need to get permission from the courts to carry out these duties.

In addition to overseeing the over-all wellbeing of the minor child and the estate, the guardian also has the following duties:

  • If necessary, bring a lawsuit on behalf of the minor child
  • If public assistance benefits are required, apply for them
  • Apply for public housing where needed for the minor child
  • Provide a legal residence for the minor child so that the minor child attends school and receives a quality education
  • Receive and maintain any funds given to support and care of the minor child
  • Authorize any care such as medical or other care necessary to insure the wellbeing and support of the minor child

Essentially the guardian looks after the minor child just as the parent or parents would have.

For more information on setting up guardianships for your minor children or your minor or adult child with special needs, contact Daniel A. Baron of Baron Law today at 216-573-3723.

Cleveland Elder Care Lawyer

When is a Legal Guardianship Necessary for my Parents?

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Cleveland, Ohio estate planning attorney, Daniel A. Baron, offers information on when it becomes necessary to change legal guardianship for your elderly loved one:

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Legal Guardianship is used when a person is unable to make or make sound decisions about themselves personally or their property. These same persons can likely be or already have been a victim of fraud or undue influence.  Although a guardianship may limit a person’s rights considerably, establishing a guardianship should be used after other actions have failed or are no longer available.

In the event a legal guardianship may not be totally necessary there are some alternatives you may want to consider that will still protect your loved one:

Some rights of the elderly which may be affected once a guardianship is put into place:

  • Medical treatment consent
  • Making End of Life Decisions
  • Voting
  • Enter into a contract
  • Possess a driver’s license
  • Selling Property

It is always best if the guardian consults with the individual to make any decisions that affect that person if they are still able to make sound rational decisions. However sometimes, the guardian must make the decisions themselves if your loved one is no longer able to participate.  The guardian should always take into consideration the individuals wishes if they are known.

Let’s start the conversation about when is the best time to consider establishing legal guardianship for your loved one. For more information on reviewing your goals for Long Term Care as part of your Estate Planning, contact Daniel A. Baron of Baron Law today at 216-573-3723.

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Springing and Durable Power of Attorney – What’s the Difference?

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Springing and Durable Power of Attorney – What’s the Difference?

When planning for retirement and your estate plan, it’s important to understand how your power of attorney works.  Generally, there are two kinds: springing and durable power of attorney.  A springing power of attorney takes affect if you become incapacitated.  In comparison, a durable power of attorney becomes effective as soon as you sign the document, and continues to be effective if you are incapacitated.

Having control with a power of attorney is a big deal.  The person holding this power may have the ability to control your financial assets, medical decision, and more.  For example, a giving someone financial power of attorney powers gives them the right to make financial decisions on your behalf.  This person might trade stocks, cash in annuities, or transfer assets.  If this person has durable power of attorney, they can make these decisions even if you are not incapacitated.   State laws differ on the particulars of power of attorney, and some financial institutions may require their own versions.

With a springing power of attorney, it’s important to clarify exactly what triggers someone taking over your abilities to make decisions.  Typically, it’s when the principal becomes disabled or mentally incompetent.  However, it could be used in a variety of situations.  For example, someone in the military might create a springing power of attorney form to be prepared for the possibility of being deployed overseas or disabled, which would give a relative powers to handle financial affairs in these specific situations only.

Who determines when someone is mentally incompetent or incapacitated?  This question varies state to state.  However, in general there is usually a formal procedure that your attorney can create.  It’s smart to note in your legal document exactly what the principal considers “incapacitated” to mean.  Often times, people who create a power of attorney form include language that requires a doctor’s certification or mental incompetence or incapacitation.

For more information regarding power of attorney and other estate planning methods, contact Cleveland estate planning attorney Dan Baron at Baron Law LLC.  Baron Law is a Cleveland, Ohio area law firm practicing in estate planning, business, and family law.  Contact Dan Baron today for a free consultation at 216-573-3723.

Bypass Trusts

Ohio Bypass Trusts – Cleveland, Ohio Attorney

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Cleveland, Ohio Trust Attorney

Ohio Bypass Trusts

Bypass trusts, or “credit shelter” trusts, have historically been an important estate planning tool that shields probate assets against estate taxes.  Most often, a bypass trust is found in your spouse’s will.  Each spouse directs that if you are the first spouse to die, then your solely owned assets be used to fund the bypass trust with up to whatever personal estate tax exemption is at the time.  Since 2013, the estate tax exemption is $5.25 million.  After death, money is used to fund the trust.  The money can come from a variety of sources including, probate assets, assets in a revocable living trust, life insurance policies, and retirement accounts.  Note however, that some retirement accounts cannot avoid certain federal taxes.

For example, say Molly dies leaving her son $1 million in a 401K plan.  Molly directs the money to a trust.  The trustee is to pay the trust ‘income’ to the son annually, and distribute the principal to the son when he reaches age 35.  The 401k plan distributes a $million lump sum to the trustee a few days after Molly’s death.  Barring an unusual provision in the trust instrument or applicable state law, the entire $1 million plan distribution is considered the trust ‘corpus.’  On the federal income tax return for the trust’s first year, the trust must report $1 million in gross income.  The trustee invests the money that’s left after paying the income tax on the distribution, and pays the income from the investments each year to Molly’s son.

If properly structured, assets in a bypass trust will not be included in your surviving spouse’s estate.  Instead, the money will ‘bypass’ your spouse’s taxable estate at their death and pass tax free.  Any amount in excess of the current federal estate tax exemption would then be distributed outright to the surviving spouse or is used to fund a marital trust or qualified terminable interest property (QTIP) trust.

Although bypass trusts have been used for years, they have become somewhat unnecessary.  Since 2013, the new laws allow a surviving spouse take up to $5.25 million tax free.  This is because the new laws allow this amount under the federal estate tax exemption.   Thus, unless you have a fairly large amount of assets, a living will would do the trick and allow for $5.25 million to be passed on tax free.

For larger estates, bypass trusts can offer advantages.  For example, growth in the assets of a bypass trust are not excluded from the gross estate of the surviving spouse and may run up against the estate tax exemption amount in effect when the surviving spouse dies.  In addition, any lifetime gifts you make that are taxable will decrease your estate tax exemption amount – decreasing the amount that can be put into the trust at your death.

For more information on trusts, living wills, or other estate planning tools, call Cleveland, Ohio attorney Dan Baron at Baron Law.  Baron Law provides legal representation to business owners and individuals.  Call today for a free consultation at 216-573-3723.  You will speak directly with a Cleveland, Ohio attorney who can help you with your legal needs.

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Creating a Business Succession Plan – Cross Purchase Agreements

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Creating a Business Succession Plan – Cross Purchase Agreements

Whether you’re planning for retirement or tragedy, having a business succession plan is imperative for business owners.  Big business or small, planning for the financial stability of your partners and employees can mean the difference between business as usual and leaving your spouse bankrupt.   Moreover, understanding the value of your business can affect your decision to sell, retire, or leave a legacy.  Cleveland, Ohio estate and business planning attorney Dan Baron has the following remarks to help you secure your financial future.

One way to create a succession plan is through a “cross purchase agreement.” Two concepts stand at the root of all cross-purchase buy-sell agreements: protection and fairness. A surviving business owner wants to be protected from interference by outsiders when a co-owner dies. Concurrently, a business owner wants to assure fair treatment of his or her heirs in the event of death.

Step One – Choose a Successor

Unless you’re selling your business – where you would normally sell to the highest bidder – picking a successor isn’t easy.  Many factors determine whether a succession plan is necessary and sometimes it can be as easy as passing the business down through a family member.  When choosing a successor, there may be several partners or family members from which the owner will have to choose, each with various strengths and weaknesses to be weighed and evaluated.  In this case, lasting resentment by some or all of those not chosen may result, no matter what choice is ultimately made.  Outside of a family business, partners who do not need or want a successor may simply sell their portion of the business to their partners in a buy-sell agreement. Talk with a Cleveland, Ohio estate planning or business succession attorney to learn more.

Step Two – Evaluate the Value of the Business

As mentioned, your succession plan may be as simple as selling it off.  But no matter whom the intended successor may be business owners must establish a set dollar value for the business, or their share of it. This can be done via appraisal by a certified public accountant (CPA) or by an arbitrary agreement between all partners involved.  Tax attorneys and business succession attorneys may also assist in the business evaluation process.  Estate planning lawyers and accountants use various metrics for evaluation business including sales, stock value, liquidity, profits, reoccurring contracts, EBITDA (Earnings before Interest, tax, depreciation, and amortization), cash flow, and more.   In addition, your estate planning attorney may evaluate your business using a number of other methods including asset based or income based evaluations.  For corporations, where the portion of the company consists solely of shares of publicly traded stock, the valuation of the owner’s interest may be determined by the stock’s current market value.

Step Three – Cross Purchase Agreements

A cross-purchase agreement is a tool used by business owners to assure that “business as usual” continues if co-owner dies. Like an entity or stock redemption agreement, the cross-purchase buy-sell agreement stipulates that:

  • A deceased owner’s estate must sell the business interest to surviving owners, and
  • The surviving owners will buy that interest.

There are no exceptions—the estate must sell and the survivors must buy.

Creating a cross purchase agreement is commonly used a usually starts with creating a life insurance policy. Once a set dollar value has been determined for the business, life insurance is purchased on all partners in the business. Then, in the event that a partner passes on before ending his relationship with his partners, the death benefit proceeds will be used to buy out the deceased partner’s share of the business and distribute it equally among the remaining partners.

A cross purchase agreement is structured so that each partner buys and owns a policy on each of the other partners in the business.  Each partner functions as both owner and beneficiary on the same policy, with each other partner being the insured; therefore, when one partner dies, the face value of each policy on the deceased partner is paid out to the remaining partners, who will then use the policy proceeds to buy the deceased partner’s share of the business at a previously agreed-upon price.

Example: How a Cross-Purchase Agreement Works

Let’s say for example that there are three partners who each own equal shares of a business worth $3 million, so each partner\’s share is valued at $1 million.  The partners are getting older and want to ensure that the business is passed on smoothly in the event one of them dies. Thus, they enter into a cross-purchase agreement. The agreement requires that each partner take out a $500,000 policy on each of the other two partners. Now, if one of the partners dies, the other two partners will each be paid $500,000, which they must use to buy out the deceased partner\’s share of the business.

One limitation to be noted here is that, for a business with a large number of partners (five to 10 partners or more), it becomes impractical for each partner to maintain separate policies on each of the others. There can also be substantial inequity between partners in terms of underwriting and, as a result, the cost of each policy.

Cross purchase agreements are just one of many ways to ensure a business’s legacy.  For more information on estate planning or business succession, contact Cleveland, Ohio attorney Daniel A. Baron at Baron Law.  Contact a lawyer today by calling 216-573-3723.  You will speak directly with an Ohio attorney who can help you with all your estate planning needs.