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 to keep more of your assets for your heirs and not hand them over to the government by way of taxes.Cleveland, Ohio,
Besides taxes, the only guarantee in life is death. When someone dies, often their estate must undergo probate administration. For most, probate is an alien concept with very little, if any, personal experience. Though each life and estate is unique, those facing impending probate and its associated confusing and sometimes byzantine rules often have the same questions.
What is probate?
Probate is the legal process required to transfer certain assets at a person’s death. Probate is necessary when a person dies owning assets in his or her name that do not pass to a survivor or beneficiary by operation of law or contract. Through probate, claims, expenses, and taxes concerning a person’s estate are paid and property is distributed.
What property is subject to probate?
The assets subject to probate administration are referred to as “probate assets” while assets that pass outside probate to a survivor or beneficiary by operation of law or contract are called “non-probate assets.” Basically, the property subject to probate is often everything that is left over in an estate that was not placed in a trust, transferred via beneficiary designation, or conveyed by operation of law, such as a house whose ownership interest was a tenancy with a right of survivorship.
What exactly takes place?
Generally, administrating an estate follows a common process. First, naturally, someone dies. At this point the critical question is whether the decedent died with a will or without a will. The importance of a will is whether probate estate assets will be governed by the terms of the will or per the laws of intestacy. This affects who gets what and when. Next, it is decided whether to open an estate, distribute assets without opening an estate, or use a truncated or shortened estate administration.
If assets are distributed without opening an estate, heirs and beneficiaries simply get the property relatively immediately and no time consuming or expensive probate administration occurs. However, this tactic often neglects to address legitimate creditors and circumstances which may cause will contests, such as disgruntled family members with an axe to grind or claim, legitimate or not, regarding estate assets. Consult an Ohio estate planning attorney before simply distributing estate assets. Ohio law attaches personal liability upon fiduciaries who distribute assets too early or improperly, a lawyer can protect you.
If an estate is opened, whether regularly or via alternative administration methods, many legal conventions and procedures must be observed. E.g. notice to heirs and beneficiaries, notice to creditors, appraisal of estate assets, probate hearings are held, etc. Granted, these methods are costlier and more time consuming, but they conclusively settle the majority of any claims or disputes regarding estate assets. The last thing a family wants after distributing estate assets to multiple parties is to find out that there is an outstanding Medicaid Estate Recovery claim or a creditor files a claim just before the deadline or unilaterally opens an estate. Again, this is why an estate planning attorney is a must. Attorneys ensure proper and timely filings, make sure the rules are followed, and are a priceless go between with creditors, government agencies, and greedy extended family.
After legitimate debts are settled, assets are appraised, and will disputes are resolved, the estate is settled. Saying an estate is “closed” is a misnomer, an estate can always be reopened, such as when new assets are discovered or claims that survive the standard 6-month cutoff are brought. But when as estate is “closed”, the probate court issues an order stating that the remaining monies and assets can distributed according to the terms of the will or laws of intestacy.
How long does it take?
On average, a probate administration takes between 6 to 8 months to complete, but often, they run longer. Some probate administrations have taken more than 11 years to resolve.
Why does probate take so long?
In essence, probate is an accounting of almost everything left behind when someone died. Just identifying, locating, and appraising all the probate assets takes a lot of time, but coupled with the notice and timing obligations owed to creditors and to those that take or may take under a will or in intestate succession, it’s a long and arduous process. Generally, however, the length of a probate administration depends on a usually on the following factors: 1) the size and complexity of the estate, 2) whether there are any will contests, 3) whether a decedent died intestate, i.e. without a will, 4) number of heirs, devisees, legatees, or beneficiaries named, 5) the manner, size, and number of bequests, and 6) the backlog of the probate judge’s docket.
Another significant factor attributing to the length of probate administration is that statutorily mandated notice periods must be observed at various points in the probate administration. So regardless of the circumstances of a particular estate, probating an estate can only move so fast. There are other methods of probate administrations available depending on the size, value, and property in an estate that may be used to cut this time significantly. A local Cleveland area probate attorney is in the best position to advise of the appropriateness and availability of such probate approaches.
How much does a probate administration cost?
Probate cost primarily depends on the size and complexity of an estate, difficultly with heirs, beneficiaries, and creditors, and asset maintenance during probate administration. The cost encompasses court fees, appraisal fees, upkeep costs for assets, fiduciary fees, attorney fees, numerous taxes, etc. Commonly, probate costs hover around 5% of the gross value of an estate.
For illustration, probate fees for Cuyahoga County regarding the value of personal property including gross proceeds of sale of real estate under power of sale in Will, purchased by election of surviving spouse or sold by judicial proceedings are
- 4% for the first $100,000
- 3% for values between $100,001 and $400,000
- 2% on the balance
Thus, keeping probate fees as low as possible is a critical goal for any estate plan. An Ohio estate planning attorney will know all the tools of the trade to ensure the most amount of estate money and assets go to friends and family.
Can I avoid probate?
Yes, there are many ways to avoid probate. The most common ways are through trusts, beneficiary designations, and joint ownership. A local Cleveland area estate planning attorney will know the best estate planning vehicles and instruments to maximize probate administration avoidance but also potentially reduce taxation on estate assets, ensure estate privacy, and maintain asset control during life and post-death.
Probate can be an arduous and long process, but it doesn’t have to be a confusing or scary one. There is no such thing as a dumb question. If you ask a question you may look dumb for 30 seconds, but if you fail to ask, you can spend a lifetime in ignorance. So never hesitate to ask your estate planning attorney any questions, regarding probate or otherwise, it’s what you pay them for.
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.
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.
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