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Probate Attorney

Top Reasons Why You Should Avoid Probate

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Whether it was a gathering for a joyous wedding or the passing of a loved one, we’ve all heard about Probate Court at some point or another. We are going to dive into what probate is and why you want to avoid it when it comes to your estate, if you have no plan.

First, what is probate? Probate is the legal process of administering a person’s estate after their death. You’re probably wondering “OK, but what does that mean?” It means:

The court will determine your assets at the time of your death.

The court will determine the value of those assets.

The court will distribute the assets to those that are entitled to them by law.

Probate court, during the process will also appoint someone to supervise the administration of your estate.

Why would I want to avoid this process? The main reasons to avoid probate are the extensive timeline and astronomical expense that are both required for probate. The minimum amount of time that is required by probate court is 6 months, but in actuality this process takes 14 – 18 months on average. The reason for this extensive timeline is to give creditors a chance to make a claim on your estate, this in turn reduces the inheritance intended for your loved ones.

The probate process is very expensive. The average cost for probate court is between 5 – 10% of the estate’s total value. This means if your estate is valued at $500,000 you can expect an average cost of between $25,000 – $50,000.

The probate court appoints someone that they deem “suitable” to administer your estate, if you have no plan. This means that your wishes will not be heard and your assets, including your personal property and belongings will be distributed by the court to whom is legally entitled.

Lastly, probate court is public record. This means that all of your assets, your heirs, and your debts are available for anyone to see. Privacy is something that should be valued during this sensitive period of bereavement.

This costly and lengthy process can be avoided with a proper estate plan put in place. Your assets should be distributed according to your wishes, not to who is just legally entitled to them. Your heirs should have the ability to access the inheritance you intend on leaving them, and your loved ones deserve the privacy and time it takes to mourn your loss.

If you have not previously considered an estate plan or have questions about how to get started on planning, contact us at Baron Law today. You can go to our website for a free consultation to start planning for the future for yourself and your loved ones.

 Helping You And Your Loved Ones Plan For The Future

 

About the author: Kristy Gross

Kristy is a Legal Assistant at Baron Law LLC kristy@baronlawcleveland.com.

Trust Adminstrator

What is an Administrator of an Estate?

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Managing the affairs and obligation of a recently departed is no easy task. That is why most people take the time to plan their estate. Estate planning, at its fundamental essence, is leaving a plan and instructions for those who survive you regarding what to do with the “stuff” you leave behind. People are living longer than ever before and, consequently, are leaving more behind. Often without a proper plan in place, the loved ones and family members left to organize and account all the leftover worldly possessions are hard pressed to do everything required from them by a probate court within the statutory time limits.

Dying without a will, only exacerbates this difficultly and lengthens the time it takes to administrator an estate. Bluntly, dying without a will, or dying with an invalid will, is never a preferential option. Most people already have a very limited understanding of the probate process, and if you throw intestate succession and administration, with all the accompanying issues and legal winkles, a difficult and trying process only becomes more so. As such, consult with an experienced Ohio estate planning attorney to either properly plan your estate so dying intestate doesn’t happen to you or, for those facing an instate administration, find out all the answers you need regarding what, how, and when to administrate an intestate estate.

What does dying intestate mean?

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. There are two primary situations when a person is deemed to have died intestate, 1) there was no last will and testament, or 2) they had a last will and testament, but for some reason or another, it was found invalid.

Ohio intestacy laws may be avoided altogether with proper estate planning, a major aim of which is to ensure you have a will and that it is valid. It is important to note, however, that sometimes intestacy laws will control even if a valid will is subject to probate administration, an experienced estate planning attorney can inform you of these circumstances. Conversely, sometimes Ohio intestacy laws may not apply even if a decedent died intestate. As such, since the controlling law for dying without a last will and testament can vary dependent on circumstance, meeting with an estate planning and/or probate lawyer is highly recommended.

What is an administrator?

In the context of intestate estate administration, an administrator is, for the most part, functionally identical to an executor. Executors, however, are appointed in the last will and testament by the decedent while administrators are appointed by the probate court in the absence of an executor appointment. Note, however, that Ohio has explicit Ohio residency requirements for intestate administrators. Thus, out-of-state residents can only be named executors and cannot serve as administrators.

Why is an administrator needed, what do they do?

The duties of an administrator aren’t easy. The duties of an administrator are specific to each particular estate, however, there is a “core” group of duties and tasks each one must fulfill. Every administrator must:

  • Conduct of thorough search of decedent’s personal papers and attempt to create a complete picture of their finances and family structure.

 

  • Take possession, catalogue, and value all estate property.

 

  • Maintain and protect estate assets for the duration of the probate proceedings.

 

  • Directly notify creditors, debtors, financial institutions, utilities, and government agencies of decedent’s death.

 

  • Publish notices of decedent’s death, usually a newspaper obituary, which serves as notice and starts the clock running on the statute of limitations for creditor claims on the estate.

 

  • Pay or satisfy any outstanding debts or obligations of decedent.

 

  • Represent decedent during probate court proceedings.

 

  • Locate heirs and named beneficiaries and distribute respective assets at the appropriate time.

These duties occur during the probate process, which is a major reason why probate takes many months to complete. Especially within the context of intestate probate administration, where no preplanning, accounting, or collection of information regarding the decedent’s estate was likely done.

Because intestate administration is such a time-intensive and laborious process, many people take the time to plan their estate and attempt to avoid probate entirely. Often trusts are a good option to avoid probate. With trusts, estate assets can be distributed right away, no executor or administrator is needed, and many mornings, which otherwise would be spent in probate court, are freed for personal enjoyment. Contact an Ohio trust attorney to see if avoiding probate through the use of trusts is right for you and your family.

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.

Helping You and Your Loved Ones Plan for the Future

Daniel A Baron - Estate Planning Lawyer

What is an Irrevocable Trust?

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Cleveland, Ohio estate planning lawyer, Daniel A. Baron, offers the following information as to whether or not you should have an Irrevocable Trust as part of your comprehensive estate planning.

An Irrevocable Trust, by design cannot be modified in any fashion or terminated without the express written consent of the beneficiary or beneficiaries. Once the trust is created it stands AS IS and cannot be changed at all, notwithstanding a few exceptions.

  • Perhaps a beneficiary needs to be changed
  • Perhaps a financial institution may need clarification of a Trustees Identity
  • The beneficiary may need to terminate the trust early due to an immediate need for a large expense

Why would there exist a need for an Irrevocable Trust?

  • It protects your property held in Trust against creditors
  • It minimizes your estate tax liability
  • If you are looking to qualify for government assistance programs, i.e., Medicaid or Veterans Aid and Attendance benefits

There are three parties to a Trust:

First Party: The “Grantor” or “Settlor” who is the person or persons who establishes the trust. Keep in mind that when the Irrevocable Trust is established the “grantor” or “settlor” relinquishes all control of the assets held within the trust.

Second Party: The Trustee who are appointed by the “Grantor” or “Settlor” whose responsibilities include overseeing the assets, investments, etc., and to pay any expenses which benefits to beneficiary

Third Party:   The Beneficiary whose job it is, is to sit back relax and benefit from the income generated by the investments within the trust.

Let’s start the conversation to see if an Irrevocable Trust is the right tax planning strategy for you as part of your Comprehensive Estate Planning. For more information on reviewing your goals for your Comprehensive Estate Planning, contact Daniel A. Baron of Baron Law today at 216-573-3723.

Helping You and Your Loved Ones Plan for the Future

 

Estate Planning Attorney

I’m An Executor Of An Estate, How Do I Transfer Property To Heirs And Beneficiaries?

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Baron Law, LLC answers questions for you on transferring property to heirs and beneficiaries while acting as an executor of an estate. It is wise to always hire/consult an experienced estate planning attorney to help you navigate through the questions you may have.

Estate fiduciaries are charged with many obligations and responsibilities during estate administration, the most visible of which is the transfer of real and personal property to designated parties and legitimate creditors. The transfer of property is what everyone thinks about when talking about probate, who gets what and when. Well, just like everything else regarding estate and probate law, there are rules at follow. As always, a local Cleveland, Ohio probate attorney is in the best position to inform you on applicable rules and considerations, a quick phone call can save you a lot of time, money, and headaches.

With regard to estate property, usually the Ohio executor or administrator, sometimes even a beneficiary, must ensure that the proper documentation has been completed in order to transfer the ownership of all property whose interest is passing due the passing of decedent. What documentation is exactly needed, however, depends largely on the type of property passing, the relevant ownership rights within such property, and also whether the property is countable as a probate or non-probate asset.

Real Property

For real property that was owned by the decedent and which passes through probate, the estate fiduciary must file an application for certificate of transfer of real property with the probate court. The required contents, as mandated by Ohio law, for this application are found under Ohio Revised Code § 2113.61(A)(2). Within five days of filing the application for certificate of transfer that is statutorily compliant, the probate court will issue a certificate of transfer to be recorded in the land records where the property is located. This certificate of transfer is the document that actually transfers title for the real property to the relevant beneficiaries denoted in a will.

The procedure for transferring real property from an estate to someone other than a designated beneficiary, for example if real property is sold by an executor, however, is not handled by a certificate of transfer. Real property might be sold during estate administration to resolve outstanding obligations or expenses of decedent, or if the decedent was under contract to selling certain property. In such circumstances, a fiduciary deed would be executed by the estate fiduciary in order to convey the property. When a fiduciary deed is used, the grantor is the fiduciary and is effectively “stepping in the shoes” of the decedent for purposes of the transfer.

Personal Property

The most common personal property an estate fiduciary will handle are bank and investment accounts, especially if the decedent was on Medicaid or other government assistance. Such programs usually have strict income and property thresholds which leaves elder decedents with much smaller estates usually only comprising of an exempted personal residence and small expense account.

Typically, an estate fiduciary will transfer all of the decedent’s bank and brokerage accounts to the name of the estate during the administration. As such, new accounts will be set up under the tax identification number of the estate. In order to transfer a bank or brokerage account from the decedent’s name to the estate, the estate fiduciary usually needs to provide the financial institution which is holding the funds in the name of the decedent with a copy of the death certificate and his letters of authority to act on behalf of the estate. Nowadays, however, most bank and financial institutions have particularized processes for the release of decedent assets to the estate, so it is highly probable a death certificate and letters will not be enough. Because everything is computerized and identity theft has become so prevalent, banks and investment houses want certain forms completed and additional confirmations of the legitimacy of the transfer. An experienced Cleveland probate attorney will know what documents to present and which forms are needed for which financial institution.

Once the accounts are transferred into the name of the estate, the estate fiduciary has more control over the accounts. Before closing the estate, the estate fiduciary can transfer the account assets to the appropriate beneficiaries or liquidate as needed to sustain the costs of estate administration or pay critical obligations. The transfer is usually accomplished by directing the appropriate financial institutions to distribute the assets in kind or cash as the case may be. Again, the paperwork that is required to do this specific and a guiding hand by an Ohio probate attorney will avoid costly mistakes.

Some property, however, passes by operation of law, usually via beneficiary designation. The most common types of property are:

Concurrently owned property with rights of survivorship -This type of concurrently owned property will pass automatically to the surviving owner without regard to the terms of decedent’s will or Ohio intestacy statues, if applicable.

Life Insurance Policies – The terms of a life insurance contract usually allow the policy owner to direct by beneficiary designation where the proceeds of the policy go upon the insured’s death. As such, the proceeds pass automatically without the involvement of a probate court.

Retirement Accounts – Various employee or individual retirement accounts allow the designation of beneficiaries upon death of the owner. Same as with life insurance, cash in these accounts pass automatically without the involvement of a probate court.

Property held under Revocable Trust – Any property held under this type of trust at the time of decedent’s death will usually pass according to the terms of the trust agreement rather than be part of the decedent’s probate estate.

The acquisition, management, and distribution of estate assets is one of the most time-consuming and emotionally draining duties of an estate fiduciary. Aggressive estate claimants, pushy heirs and beneficiaries, and stubborn financial institutions make getting things where they need to go much more difficult than it otherwise should be. An experienced Ohio attorney can act as a buffer between you and those parties who would otherwise making administrating an estate much more difficult.

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

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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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.

 

Probate Lawyer Baron Law LLC

What is Probate?

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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 Cleveland Ohio

You Have Been Appointed Executor, What Do You Do?

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Cleveland, Ohio, estate planning lawyer, Daniel A. Baron, Ohio, offers the following information on what your duties are as an executor of an estate.  Contact Daniel A. Baron of Baron Law to answer all your questions on what your duties are and to help guide you through the events that will be taking place and how to navigate through them.

An executor appointment is bittersweet. It is heartwarming that your recently deceased friend or loved one had faith enough in your abilities to trust you with the administration of their estate, however, fulfilling the duties of an executor is no simple matter. For the next six months, at minimum, you “stand in the shoes” of the dearly departed. You ensure their debts are paid, their affairs are closed in orderly fashion, and their final wishes are communicated to and followed by grieving friends, family, and business associates.  

Most individuals have little prior experience with executorships. Often people agree many years before the faithful day to be an executor and do little preparation or research for when the time arrives. Executor appointments are serious matters with serious consequences. A failure to perform the duties of an executor satisfactorily can result in estate assets being squandered, the infliction of additional stress and trauma upon grieving survivors, and, in extreme cases of misconduct or neglect, personal liability for the executor. Thankfully, executors have been a common reality in estate law for many centuries. As such, what you need to do, how to do it, and when you need to do it are all spelled out in the laws of Ohio. Naturally, the best adviser to seek out if one is appointed an executor is an Ohio estate planning attorney. A Cleveland estate attorney can walk you through the do’s and don’ts and ensure filings are proper in form and timely in submission.  

  1. Open the Estate

As an executor, the first thing you need to do is to open the estate. There is a myriad of probate proceedings available to open an estate, each with its own filing requirements and hurdles. Some may even be able to avoid probate all together, saving time and stress for an executor. Again, an estate attorney is in the best position to advise the best way to probate an estate, if there is a need at all.   

II.Inventory the Estate  

Once an estate has been opened, an inventory of the probate assets is required to be filed with the probate court within 3 months of the executor’s appointment. Only probate assets are inventoried. Non-probate assets pass to beneficiaries or owners outside of the will and, as such, are not considered a part of a decedent’s estate. Your estate attorney will know which estate assets are subject to probate. Practical tip, it is good practice for those with an estate plan to keep a comprehensive accounting of all assets in a centralized location to assist an executor in locating assets and keeping track of values and amounts of assets. Additionally, telling your executor that this accounting exists is just as important as doing it all. All too often executors are completely in the dark regarding the composition of an estate and the location of critical documents.     

To take the actual inventory of decedent’s estate, you will use the series “6” standardized forms from the Ohio Supreme Court website in conjunction with the relevant local probate court forms. There are 88 probate courts in Ohio, each with its own way of doing business, as such, each probate court has particular forms they prefer. Initially, use the local forms, when in doubt, the Ohio Supreme Court forms are always acceptable.  

An inventory itself is a detailed description of all probate estate assets along with their values. Detailed information regarding the assets, such as account numbers, serial numbers, stock certificate numbers, and book, plat, and parcel numbers for real estate are denoted in the inventory. The inventory, at the most basic level, consists of two forms: 1) the Inventory and Appraisal form and 2) the Schedule of Assets form. The Schedule of Assets contains the detailed information regarding the estate. Basically, a list of asset identifiers and information, i.e. the who, what, and where of assets. The Inventory and Appraisal form is the summary of the probate asset information that is detailed on the Schedule of Assets form. It recaps the values of the tangible and intangible personal property and real estate owned by the estate. During the drafting of these documents, appraisals and valuations of assets take place. Naturally, there are particularized rules and procedures for such, but that is a discussion for a later date.  

After all the assets are located and relevant investigations completed, the inventory is submitted to the court and a hearing date is set. Per the laws of Ohio, a probate court is required to set all inventories for hearing not less than 10 days and not more than 30 days after filing of the inventory. During this time notice is required to be sent to all interested parties of the estate, e.g. next of kin, devisees, legatees, and creditors of the estate. An inventory hearing cannot be undertaken unless receipt of formal notice for all interested parties is confirmed or waivers for those interested parties are signed and filed with the court. The notices themselves are standardized forms assessable via any probate court website.  

While waiting for the notice period to expire and for the hearing date to arrive, interested parties can file exceptions to the inventory. Exceptions, generally, are claims to particular estate assets and whether they have been properly included or excluded from an inventory. The important thing is filing of an exception to an inventory triggers an inventory exception hearing which, in turn, continues the inventory hearing. Thus, an inventory cannot be approved until the exceptions are addressed and the probate process stalls.   

If there are no exceptions filed, or the exceptions have been resolved, and after the notice period has been observed, the court will conduct an inventory hearing and enter an Entry Approving Inventory. This Entry, in essence, states going forward, the approved inventory will be the presumptive valuation and appraisal of estate assets. Thus, distributions of estate assets according to the laws of Ohio or the last will and testament of decedent can begin.  

At this point in the process, a significant part of the legwork for an executor is finished. The major hurdles remaining deal with will-contests, asset distribution, and closing of the estate. An upcoming article will flesh out the remainder of the duties and obligations of executors going forward past the inventory hearing and the probate court’s Entry Approving Inventory. If you’ve been appointed an as executor and have questions regarding what you need to do and when you need to do it, contact an Ohio estate planning attorney. Spending a little time now can save you a lot of time later.   

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.   

 

 

Baron Law Cleveland Attorney

I’ve Been Named As The Executor In A Will, Now What?

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Cleveland, Ohio, estate planning law firm, Baron Law LLC, Cleveland, Ohio, offers the following information on what your duties are as an executor of an estate.  Contact Baron Law Cleveland to answer all your questions on what your duties are and to help guide your through the  upcoming events which are about to occur and how to handle any issues which may arise.

Unfortunately, a close friend or family member has passed and in their will you were appointed as executor of their estate. At the time the will was drafted maybe you gave little or a lot of thought into what being named executor actually entails. Often, it’s the former, most people have little experience administrating an estate and little reason to overthink being named an executor. So, when the time comes to handle the responsibilities of an executor, it can be a confusing and overwhelming process.

An appointment to executor is a serious affair, but an understanding of the process and expectations of an executor can limit the stress of an already stressful situation. Since most people have little experience with wills, estates, or probate, everyone finds themselves asking the same questions when they remember they’re an executor. Note, this article is only a minor overview and contacting a Cleveland estate planning attorney in event of death or a potential or actual appointment as executor is always recommended. An experienced Ohio estate planning attorney can give you personalized guidance and recommendations to take as much of the burden off you as possible.

 

What is an executor?

Bluntly, an executor is the person, or persons, named in a will to administrate the estate after death. The executor is the individual responsible for seeing that the final wishes of the decedent, as denoted in the will, are carried out. The appointment of an executor is a logical, and necessary, consequence for the existence of last will and testaments. At the end of the day, wills are only pieces of paper. So, without someone loyal, trustworthy, and actually willing to carry out the terms of a will, a will would be a paper tiger and estate assets wouldn’t be distributed nor posthumous debts and obligations handled. So, if you’ve been named as an executor, congratulations, you’re likely the most responsible and well-adjusted of the decedent’s friends and family.

 

How is an executor appointed?

Executors are formally appointed as such by explicit provision in a last will and testament. Hopefully, the will holder informs the named individual of their selection of executor, but this is not a strict requirement, just courtesy and commonsense.

Just being named as executor in a will, however, is not sufficient to confer the job. When the will is probated, the following statutory requirements are observed by the court when selecting an executor:

  1. The named individual must be competent to serve as executor.
  2. The named individual must be at least 18 years old
  3. The named individual must be bonded

Implicit within the bond requirement is that the named executor has good credit and no criminal record, since failure of either would likely make it next to impossible in convincing an insurance company to take the increased risk and issue an executor bond. The cost of the bond itself is paid from estate assets. Note, however, a will has the discretion to waive the bond requirement if the decedent has faith that the named executor is trustworthy and doesn’t represent a risk of pillaging or mismanaging estate assets.

As with many things within the legal system, the final approval for executor appointment lies with the probate court. So, regardless of whether the formal requirements are met, a probate court may still reject an executor election and appoint a third-party administrator if a potential executor is perceived as unfit to serve. Since, a major purpose of drafting a will is to control who distributes estate assets, naming an Ohio estate attorney as a primary or successor executor is advisable as a probate court would have little reason to protest such an appointment.

Why is an executor needed?

The duties of an executor aren’t easy, however, there is satisfaction knowing that you did right by your friend or family. The duties of an executor are specific to each particular estate, however, there is a “core” group of duties and tasks each executor must fulfill. Every executor must:

  1. File the will and probate petition in probate court where decedent was domiciled at time of death and petition the court for executor appointment.
  2. Take possession, catalogue, and value all estate property within 3 months of filing the will for probate.
  3. Maintain and protect estate assets for the duration of the probate proceedings.
  4. Directly notify creditors, debtors, financial institutions, utilities, and government agencies of decedent’s death.
  5. Publish notices of decedent’s death, usually a newspaper obituary, which serves as notice and starts the clock running on the statute of limitations for creditor claims on the estate.
  6. Pay or satisfy any outstanding debts or obligations of decedent.
  7. Represent decedent during probate court proceedings.
  8. Locate heirs and named beneficiaries and distribute respective bequests at the appropriate time.

These duties occur during the probate process, which is a major reason why probate takes many months to complete. Because probate is such a time-intensive and laborious process, many people chose trust-based estate plans that avoid probate entirely. With trusts, estate assets can be distributed right away, no executor is needed, and many mornings, which otherwise would be spent in probate court, are freed for personal enjoyment. Contact an Ohio trust attorney to see if avoiding probate through the use of trusts is right for you and your family.

What if some dies without a will so that there isn’t an executor?

If someone dies without a will, i.e. intestate, the probate court will appoint an administrator for the estate. The formal requirements for an administrator are the same as an executor except administrators must be also an Ohio resident while executors can be anyone. The duties administrators perform are largely the same as executors.

Granted, the final result of the probate process is the same regardless of whether an estate is administrated by an executor or appointed administrator, however, who knows who the court ultimately will appoint. As such, it is always preferable to elect an executor an ensure a responsible and diligent friend or family member will manage your estate and see that final wishes are followed. Those living without a will or trust are playing with fire and could end up seeing significant portions of lifetime earnings or assets going to irresponsible family members or eaten by taxes.

If I’ve been named as an executor, do I have to be one?

No, there is no legal requirement to take on the responsibilities of executor, however, resigning will likely put the surviving family in a serious bind and force a probate court to appoint an administrator. An executor resignation, prior to or during probate proceedings, must follow established procedures and use particular legal forms specific to each probate jurisdiction. Consulting an estate attorney is the best way to find out what these procedures are and if resigning is necessary in the circumstances.

Executor appointment is not a job to underestimate. Often, the labor and time spent in fulfilling the duties go underappreciated, but it is critical to wrapping up decedent’s life and giving closure to friends and family. Though sometimes thankless, executors are entitled to compensation in Ohio. Namely, if executor sells real estate or personal property, they are entitled to 4% of the first $100,000, 3% of the next $300,000, and 2% of any remaining value. Further, 1% may be charged for any non-probate assets. Executor fees and the associated tax consequences are potentially complex issues, as such, contacting a Cleveland estate attorney is sensible.

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

 

Baron Law Cleveland, Ohio

Procedures To Shorten Or Avoid Probate Of An Estate

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Cleveland, Ohio, estate planning lawyer, Daniel A. Baron, Ohio, offers the following information on what types of probate procedures shorten or avoid the need to probate and estate when speaking with your attorney when you are establishing your comprehensive estate plan.

When an individual dies, their “probate assets,” such as property not dispensed via beneficiary designations, transfer on death designations, or held within trust, go through probate.   

Probate is the legal process provided by Ohio law where a probate court “sets the table” to administer a decedent’s estate. Namely, the probate court appoints an authorized fiduciary for decedent’s estate, determines the validity of a will, if there was one, oversees the determination of probate assets of decedent, and ensures probate assets are collected, maintained, and distributed to the proper parties according to decedent’s last wishes or, if there was no will, according to the laws of Ohio.  

 Probate is not a straight-forward process and it takes, usually, at least six months to complete and close an estate. Therefore, the two most common questions clients of estate planning attorneys ask is, why does probate take so long and how can we shorten or avoid the probate process. There’s a handful a probate processes one can use, if the circumstances of the estate qualify, within the Ohio legal codes to shorten or avoid the need to administrate probate. The following are of the few most widely used accompanied by minor explanations. Naturally, a Cleveland estate planning attorney can provide more expansive elaboration on these processes and guide you towards the ones that are best suited for a particular situation.  

Filing Will for Record Only

 A Will can be filed with the probate court when no probate administration is expected or required for the estate. For this type of probate proceeding, no appointment of an executor is needed. The benefits of going this route is administration costs are totally avoided but since the Will was properly delivered to the court, federal estate tax returns can be filed and exemplified copies of the filed Will are obtainable for out-of-state probate proceedings. This process is often used when certified copies of a Will are needed for administrations of out-of-state property owned by Ohio residents.  

 Summary Release from Administration 

 A summary release from administration is the most abbreviated probate proceeding for obtaining a release of assets. Usually, this type is used for small estates, such as those with minor amounts of personal property or a small bank account to distribute. The most common situation where a person would go this route is to get reimbursement from the estate for funeral expenses. Again, no executor is appointed in this proceeding.  

 Ohio law, however, does limit which estates may use this type of probate proceeding. This process may only if used if either:   

 

  • If value of the assets of the decedent’s estate does not exceed the lesser of $5,000 or the amount of the decedent’s funeral and burial expenses, any person who is not a surviving spouse and who has paid or is obligated in writing to pay the decedent’s funeral and burial expenses, may apply to the probate court for an order granting a summary release from administration: or 

 

  • There is a surviving spouse, the decedent’s probate assets do not exceed $45,000, the spouse is entitled to 100 percent of the family allowance, and the funeral bill has been prepaid or the surviving spouse is obligated to pay the funeral bill.  

 Release from Administration 

 A release from administration is the next tier up in regards to available abbreviated probate proceedings for obtaining a release of estate assets. No executor is appointed for this proceeding but a commissioner might be used if the facts surrounding the estate are more complicated than anticipated or if a determination of decedent’s ownership rights is necessary. 

 For this proceeding, the applicant certifies the nature and value of the probate assets to the court and the identity of decedent’s creditors and the amounts they are owed. If the decedent died testate, i.e. with a valid Will, the application to relieve the estate from administration is filed with the Will, along with all of the forms necessary to admit a Will for probate. Further, the decedent’s next of kin and devisees under the Will are notified and are parties to this process. If everything goes as it should and all the requirements are met, the probate court will issue an order releasing the probate assets, the payment to creditors with valid claims, and the distribution of probate assets.     

 Again, Ohio law does limit which estates qualify to use this type of probate proceeding. The process may be used only if either: 

  •  There is no surviving spouse or the surviving spouse is not entitled to all probate assets and the probate assets are $35,000 or less and the decedent died on or after November 9, 1994. (Different asset levels apply for qualification if decedent died prior to this date.)  

 

  •  The surviving spouse is entitled to all of the probate assets and the probate assets are $100,000 or less and the decedent died on or after March 18, 1999. (Again, different asset levels apply for qualification if decedent died prior to this date.) 

 Avoiding or limiting the probate process through selective use of codified probate processes is one way of preserving estate assets and saving everyone’s time. There are, however, other methods that avoid probate but also carry positive benefits for the estate, heirs, and intended beneficiaries. Creative and conscientious use of estate planning tools such as trusts, pour-over wills, and P.O.D. and T.O.D. designations can see even more savings for friends and family of a recently deceased. Contact a local Ohio estate attorney and find out the best way to plan your estate to maximize what is left behind for those you love and save time and expenses when going through probate.   

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.