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.
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.
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 firstname.lastname@example.org.
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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 email@example.com.
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