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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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cleveland attorney

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 Cleveland Ohio

What If My Trustee Is Concealing Trust Assets?

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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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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 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.   

 

 

 

 

Baron Law Cleveland - Estate Planning Attorney

Knowledge Is Power – Why Knowing The Difference Between Irrevocable And Revocable Trusts Is Critically Important.

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Cleveland, Ohio, estate planning law firm, Baron Law LLC, Cleveland, Ohio, offers the following information on the differences between a Revocable Trust and an Irrevocable Trust.  Contact Baron Law Cleveland to ask and have answered your questions on what the differences are and what would suit your needs best.

Your estate plan consists of many documents and covers a lot of bases. From protecting assets from creditors and litigants to avoiding probate where desirable, a comprehensive estate plan protects you while you’re living and provides for loved ones after death. Because estate plans are, by design, comprehensive, a lot of legal jargon is thrown around and often it’s difficult to keep track of all the nuance and detail. You can put your faith in your financial adviser or estate planning attorney and trust them completely with little or no understanding of what they’re actually doing. That certainly is an option, however, the better course is to ask questions and endeavor to remain informed as possible.  

That said, one of the most common questions posed during an initial estate planning consultation is, what is the difference between a revocable and irrevocable trust? Since trusts represent one of the most utilitarian estate planning tools, they have the ability to do many useful and advantageous things in regards to estate planning, understanding the difference is critical to providing context to advice dispensed by Ohio estate planning attorneys.  

 

  1. Revocable Trusts

Revocable trusts, commonly referred to as living trusts, are trusts that the grantor/settlor can change or cancel during their lifetime. The most significant aspect of living trusts is that the grantor usually keeps control over the assets placed in the living trust and, as such, receives no tax relief for those assets. Similarly, the grantor can also appoint themselves trustee of the living trust to dispense that control.  

To use a simple metaphor, a trust is a treasure chest. Putting assets in the chest, the trust, protects the assets from particular threats outside and establishes rules which govern what is placed inside. The major distinguishing characteristic of living trusts is that the grantor, owner of the trust, keeps control of the key that unlocks the treasure chest and can get at what’s inside.  

So, naturally, the next question after what is a revocable trust is, why would I want one? The advantages of living trusts are numerous but are highly particular to individual circumstances. An Ohio estate planning attorney is in the best position to judge what an individual’s needs are and the best ways to meet them. Generally, however, the primary advantages of using living trust are avoiding probate, directly providing for distribution of assets through trust beneficiary designations, privacy, trust inventories are not public record, and maintaining control of assets trusts during life and post-death.   

  1. Irrevocable Trusts  

Irrevocable trusts are trusts in which the grantor relinquishes all control and ownership over the trust and the assets used to fund the trust. Thus, the trust cannot be changed or canceled without the beneficiaries’ permission. Prior to trust formation, grantor can dictate whatever terms they desire to govern the trust, but after formation, those terms control independent of grantor’s wishes and desires.  

So, again, why would anyone give up control and chose irrevocable trusts? As mentioned previously, with living trusts, grantors keep the key to the treasure chest. With irrevocable trusts, however, the grantor gives the key to another, namely a trustee. Since grantor no longer has the key, grantor can no longer get what’s inside the chest. Since the assets in an irrevocable trust no longer belong to grantor, at least in the eyes of the law, this has major tax and legal implications. 

These tax and legal consequences are the primary advantages of irrevocable trusts, and what distinguishes revocable from irrevocable trusts. First, since control over trust assets is relinquished, the IRS does not consider trust assets to be in grantor’s taxable estate. Thus, estate, income, or gift taxes may be avoided or reduced in certain circumstances. Further, assets within an irrevocable trust enjoy protection from creditors and litigation. Of particular importance for seniors, assets within this type of trust are not counted as an asset for eligibility in Medicaid or other government assistance programs. A common tactic is to place a martial home, usually the largest asset, in trust. Thus, eligibility is maintained but the house can still be lived in. This sheltering of assets while still maintaining use is at the core of irrevocable trusts. Even though direct control is relinquished, grantors dictate the terms of the trust. Such terms often mandate to the trustee that such trust assets are used for the health, support, and maintenance of the grantors. Thus, grantors still get to enjoy and profit from assets but get the benefits of not, technically, owning such.  

Naturally, the question everyone asks is which one is best. Unfortunately, as with most things financial and legal, there isn’t a straight answer. Dependent on the circumstances, such as estate planning goals, family structure, available estate assets, either or both types of trusts may be advantageous to use. A Cleveland estate planning attorney is in the best position to judge what is most appropriate for a given situation.  

Regardless of which is most appropriate, the most critical part is funding your trust. Picking what type or types of trusts is best is the easy part. The hardest part, and the one most often overlooked, is properly funding a trust. More often than not, people think after creating the trust the work is done. This is patently false. A trust without proper funding isn’t worth the paper it’s printed on. If you’re asking yourself how do I fund my trust or is my trust funded, please contact an Ohio trust attorney as soon as possible. The security you though you bought with your trust is likely imaginary.   

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 Estate Planning Attorney

Probate Is Expensive And Time-Consuming. Here Are Ways To Avoid Probate

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Cleveland, Ohio, estate planning law firm, Baron Law LLC, Cleveland, Ohio, offers the following information on you can avoid probate when you are thinking of establishing your comprehensive estate plan.

All too often people draft a last will and testament, shove the document in a safety deposit box at the local bank, and never give it another thought. Granted, a cavalier attitude towards one’s estate plan is a bold strategy but at best it’s costing thousands of dollars down the line, at worst the will isn’t worth the paper it’s printed on and the surviving family is left the deal with a tangled mess of who gets what. A comprehensive estate plan drafted by competent counsel will cost is a little now but save you a lot later.

A last will and testament is primarily meant to memorialize instructions for the distribution of assets, obligations, and wealth when someone dies. The process in which a will is read, followed, and, if necessary, contested is called probate. This process also applies if someone dies intestate, that is, without a will, but state law is followed instead of explicit instructions given in a will. Probate isn’t a necessarily evil process but it is labor intensive and costly. Probate is a legal process undertaken in state court under the watchful gaze of the assigned probate judge. As such, probate often takes many months to complete during which court costs continue to accrue. Even after a moderate probate process, probate costs can reach as much as 10% of the gross estate. Money better spent on more pressing concerns like funeral expenses or lingering medical costs. Further, during probate, beneficiaries don’t have access to the property bequeathed to them until probate is finished, regardless of whether the will is contested or not.

Since everyone prefers to preserve the most amount of assets to leave to surviving friends and family and provide access to such assets quickly, avoiding probate whenever possible is advantageous. Below are the most common ways probate is avoided.

Beneficiary Designations

Some major assets such as life insurance policies and retirement accounts, like IRAs and 401(k)s, are inherently outside of probate due to their mandated beneficiary designations. The owner of these assets at creation is required to denote primary and contingent beneficiaries in the event of death. Thus, these assets transfer directly and immediately to listed beneficiaries without the need of court intervention.

Though not as straight forward as simple beneficiary designations, other assets such as bank accounts and non-retirement investment accounts can utilize payable-on-death or transfer-on-death beneficiary designations. To enable payable-on-death beneficiary designations for bank accounts or transfer-on-death beneficiary designations for non-retirement investment accounts, contact the relevant brokerage firm or bank and request the standardized forms. Such designations are becoming more common, as such, all major financial institutions have standardized forms available upon request. The major hurdle is actually requesting the forms, completing them properly, then returning them to the institution. Retaining a local Cleveland area estate attorney can guarantee these forms are completed timely, properly, and in the correct circumstances.

For real estate, Ohio uses transfer-on-death designation affidavits as an avenue to avoid probate. Since 2009, real estate can transfer outside of probate if an affidavit is drafted with the following:

  • It describes the property and denotes its instrument number.
  • It describes the portion of property subject to transfer.
  • It denotes whether the owner is married. If married, the spouse must sign as well.
  • It names one or more beneficiary.
  • It is signed, notarized, and filed before the death of the owner.

Beneficiary designations serve as explicit instructions regarding transfer of ownership upon death. Probate fundamentally exists to ensure a decedent’s assets go where the decedent wanted them to. So, if a decedent left explicit instructions in the form of beneficiary designations, there is little reason to subject the applicable asset to probate.

Joint Ownership

Joint property by its very nature avoids probate. Joint property, for example, joint and survivor deeds or a joint tenancy with a right of survivorship, passes to the surviving joint owners when one owner dies. The transfer occurs immediately and no probate process is undertaken in regards to the joint asset. This type of ownership is mostly commonly associated with martial homes and assets obtained during marriage. Though marriage is the most common circumstance of joint ownership, it is not exclusive.

Forming a joint ownership relationship is relatively simple in most instances, however, these methods of ownership can present issues regarding trust and control of the property. Namely, there must be mutual trust and confidence between joint owners to upkeep and manage the property. Furthermore, the rights of ownership of joint property depend on the type of joint ownership created. Depending on the type of joint ownership, the use, control, and financial and legal responsibility assigned to each joint owner can vary. Some individuals are uneasy depending upon another to take care of a significant asset. The last thing anyone wants is to get locked into ownership over something expensive with an unstable, lazy, or irresponsible co-owner.

Joint ownership in certain circumstances is practical way to avoid expensive probate costs and lengthy holds on the transfer of ownership in the event of death. There are, however, significant considerations and potential negatives as well. Concerns of concurrent ownership during life may eclipse any probate avoidance benefits down the line. A local Cleveland area estate attorney is in the best position to analyze your estate planning needs and can tell you if joint ownership is advantageous to your situation.

Trusts

Trusts are a commonly recommended estate planning vehicle which affords unparalleled estate planning flexibility. Any quick internet search will illustrate, at length, about the numerous advantages of using trusts during estate planning. Whether looking to avoid probate, control assets pre or post death, or reduce or avoid estate and inheritance taxes, trust utilization is a highly effective option that should always be investigated. Contact a local Cleveland area estate attorney to find out how trusts can benefit you and your family.

A trust, to put it simply, is a private agreement that allows a third party, a trustee, to manage the assets that are placed inside the trust for the benefit of trust beneficiaries. There are innumerable types of trusts, each with own its respective legal conventions and purposes. Within the context of this discussion, however, the critical aspect of trusts is that the assets housed within them usually avoid probate. When the owner of the trust creates the trust and properly funds it, the assets go from the owner’s taxable estate to the trust. Thus, when the owner dies, the assets are not in the owner’s estate and subject to probate. The assets in question pass via the beneficiary designations set down when the trust was created. As mentioned previously, conveyance via beneficiary designation is much simpler, quicker, and cost-effective then the probate process.

The best way to avoid probate and preserve the most amount of money and property for surviving family is situational and based upon individual need and preference. A person may want to avoid probate for Medicaid qualification reasons, privacy concerns, or just to ensure as much money as possible passes to heirs. As such, a visit with a Cleveland area estate planning attorney can the provide proper guidance and evaluation of potential estate planning strategies. An hour with an estate attorney can answer any questions you might have and set you on the path to dealing with some of life’s most critical issues.

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
Estate Planning Lawyer - Daniel A Baron

Ohio’s Right to Disposition – Who Has Final Say?

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Cleveland, Ohio, Estate Planning lawyer, Daniel A. Baron, of Cleveland, Ohio, offers the following information on the issue of your Rights to Disposition after you pass.

Imagine if you will, your Uncle Harry has passed away and although he had specific wishes on what to do with his remains, there are others in a packed courtroom (immediate family members, blended family members, extended family members, friends, and lawyers) all thinking that they know what Uncle Harry’s final wishes were.

Although we always seem to hear about this situation coming out of Hollywood or New York City, you don’t have to be a celebrity to have family, friends, and lawyers be involved with what to do with your remains. Not only can this cause undue stress between family members and friends, but this can also produce large legal fees from opposing attorneys.  Ohio has a law which went into effect October 12, 2006 to prevent legal battles such as these from occurring.

Should you have questions like these, they are better answered by a qualified Estate Planning Lawyer.

  • What criteria do the courts use in deciding whether someone should be given authority to make the funeral decisions?
  • What precautionary measures are in place if the “designated person” in charge of making such decisions is not qualified or capable of making this type of decision any longer?
  • What ae some issues pertaining to funerals that arise that tend to lead to legal battles?
  • How does Ohio address these potential issues?
  • What occurs when there has been no person designated to make these decisions?
  • Is there a provision that allows someone to name a group of people rather than an individual having the right to dispose of the remains?

For answers to these and any other estate planning questions it is prudent to contact an experienced Estate Planning Lawyer. Contact Daniel A. Baron of Baron Law today at 216-573-3723 to arrange a meeting.

Helping You and Your Loved Ones Plan for the Future