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Baron Law Cleveland Trust

Ohio Trusts – Can Out-Of-State Lawyers Draft Them?

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 […]

Baron Law LLC Independence Ohio

Fully Utilizing Your Attorney: Document Review

Baron Law, LLC is your trusted law firm for business owners and entrepreneurs. Don’t wait until it’s too late to consult/hire a business attorney for your legal issues.

Our society is highly litigious, and, consequently, it seems like everything is fully documented nowadays. Gone are the days of handshake deals and taking people at their honor and word. In the preceding decades lawyers have come in and added red tape and procedure into almost every facet of life. From credit cards to bank loans, to getting a new patio installed and enrolling your children in school, there is lengthy paperwork to fill out and lengthy procedure to adhere to. Often it is what you don’t know that harms you. People sign without reading or agree to terms they only partially understand. And it is always more difficult to fight against terms you already agreed to, that is why exercising a little restraint and doing a little research before you sign is always the more preferential option.

Recognizing a deficiency in comprehension is only half the battle and it is often a prospect people are too prideful to recognize. Naturally, not everyone is going to be an expert in everything. Heart surgeons often can’t expertly shingle a roof and vice versa. Many people use the services of attorneys but most fail to use them to their full potential. Attorneys are licensed experts who spend their days dealing with issues and problems that most don’t want to spend hours, days, or even weeks of reading and learning to become experts in. Recognizing an impending difficulty and being willing to retain the services of an expert can save you a lot of time and money in the short term, but also put you in a more advantageous position to guard against, or exploit, potential problems in the future.

I. Why have your attorney review your documents?

It’s a widely held view that two sets of eyes are better than one and that a fresh set of eyes can see things that you would miss. Further, in the context of retaining the services of an experienced attorney, they are often aware of potential issues and problems that a lay person would be ignorant of. The name of the game is expert consultation. Attorneys possess areas of expertise because they deal with the same areas of law and associated problems and issues day in and day out.

Though some are aware that using the expert services of an attorney might be helpful, however, a lot of times, 1) people don’t know what experts they need, 2) don’t know how to find such experts, and 3) not all experts are created equal, which ones will actually help you rather than hurt. An experienced and established attorney will know which experts you need, which ones are trustworthy, and which ones won’t cost you an arm and a leg to talk to.

At the end of the day, using attorneys saves you time and money. Attorneys are trained to read fast and think fast, and an experienced attorney will be able to accomplish in a faction of the time what you can attempt to do yourself. Often people need and want answers to their questions as soon as possible.

For example, a recent client came in regarding collection on a judgment via garnishment proceedings in municipal court. Little did he know; such judgment was discharged by a chapter 7 bankruptcy. So, if he attempted to collect he would be in contempt of the bankruptcy order and, curiously, he would then face possible liability from the debtor. Most ordinary individuals don’t have extensive experience with collections or bankruptcy law. In this instance, a simple sit down with an attorney likely saved him thousands of dollars and avoided a contempt charge.

II. In what situations would you have your attorney review?

The situations in which it would be advantageous to seek the counsel of an experienced attorney are numerous. Every person, family, company, and business deal have their own nuances and concerns. Generally, however, if you are saying to yourself either 1) I don’t want to take the time to figure out X, or 2) I don’t understand what Y is saying, or 3) I’m pretty sure I understand Z but I want to be fully confident I’m not missing anything important, it’s probably a good idea to at least sit down and talk with an attorney.

The following is a list, non-exhaustive, of types of matters Baron Law has looked into previously. Other law firms and other attorneys, naturally, can help with other matters that match their specialties or areas of concentration.

Land Contracts

Deeds

Buy/Sell Agreements

Business Succession Plans

Partnership Agreements

Articles of Incorporation

Purchase Agreements, Goods and Services

Eviction Petitions

Garnishment Application

Guardianship Applications

HOA Contracts


III. Cost v. Risk

When it comes down to it, regardless of the all the reasons why you should consult with an attorney about a particular matter, it’s going to come down to cost and risk. How much is hiring an attorney going to cost me vs. how much am I risking by not doing my due diligence? Often the answer hinges on the financial stakes. If you are investing $300,000 in a business venture, you’re going to spend a little money to make absolutely sure your money is protected and your getting a good deal. In similar situations, using attorneys to protect yourself is self-evident.

In other situations, the necessity of attorney counsel is less-evident but nonetheless critical. Even for minor business ventures, simple contracts for services, or party-to-party transactions, the significant threat of potential litigation and the loss of invested blood, sweat, and tears is still there. Thus, the expert guidance of attorneys remains your best line of defense. The human psyche is strange in that $100 doesn’t mean much unless it’s your $100. When it comes to protecting your money, your assets, and your business deals, doing the little extra of hiring an experienced Cleveland attorney makes sense and almost always pays for itself regardless of the context.

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 Cleveland Ohio

What Are Choice Of Law Provisions And Why Do They Matter?

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 […]

Baron Law Cleveland Ohio

How Do I Force A Trustee To Tell Me What’s In A Trust?

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.

Trusts are one of the most useful tools in the estate planning tool box. Special needs trusts ensure vulnerable children and beneficiaries can receive bequests or inheritances without being knocked off of critical state and federal benefits while a simple family trust can guarantee income and assets placed within it last for generations and are, for the most part, protected from creditors and litigants. The lynchpin of any trust, however, besides the trust documents themselves, is the trustee. The agent in charge of managing trust assets and carrying out trust instructions.

A lot of faith and trust are placed within trustees. Unfortunately, not all trustees are up to the task and some even use their position for ill gain. Some trustees are lazy, some are disinterested. Other trustees are combative, others are downright criminals. Trustees come in all types. The process for removing a trustee, seeking civil or criminal action against a trustee, or simply finding out what a trustee knows all start at the same spot. A trust beneficiary, or other interested party, must force a trustee to tell them what they know and Ohio law has provided a process to do just that. The process is called a petition to compel an accounting or sometimes a citation to a fiduciary to file an account.

This process, naturally, is often the route of last resort when something has gone horribly wrong with a trustee or fiduciary. For example, failure of an executor to file a notice of admission for will to probate, or a failure render an account of an executor’s or administrator’s estate administration, or failure to file the first estate accounting within the 3-month time limit without good cause shown. Basically, citations to compel accounting are used when those entrusted to look after the money don’t follow the rules or tell anybody what they are doing. Again, getting a probate court involved with a difficult or non-responsive fiduciary should always be a last resort. As such, always consult an experienced Cleveland estate planning attorney to find out your best course of action in the circumstances.

How do I compel a trustee accounting?

Generally, to get a court to do anything, there has to be statutory language on the books that give you the authority/right to do something. Ohio law provides that particular qualified people can petition the court to force a fiduciary or trustee to appear and tell what they know and bring evidence to back it up.

“If a fiduciary neglects or refuses to file an account, inventory, certificate of notice of probate of will, or report when due,… the court at its own instance may issue, and on the application of any interested party or of any of the next of kin of any ward shall issue, a citation … to such fiduciary …. to compel the filing of the overdue account, inventory, certificate of notice of probate of will, or report.” O.R.C. § 2109.31(A).

What does a citation for accounting contain?

The citation or motion to compel is a legal document filed with a particular probate court that asks the court to use its authority to force a fiduciary or trustee to appear at a certain time in a certain place or face the consequences. Ohio law specifies that such a request must be a proper form so the court knows exactly what you’re asking the court to do and so the trustee or fiduciary knows exacts what to do to satisfy the court’s request and avoid any adverse consequences. So, what information does your request actually need to contain. Per O.R.C. § 2109.31(B):

(1) A statement that the particular account, inventory, certificate of notice of probate of will, or report is overdue;

(2) An order to the fiduciary to file the account, inventory, certificate of notice of probate of will, or report, or otherwise to appear before the court on a specified date;

(3) A statement that, upon the issuance of the citation, a continuance to file the account, inventory, certificate of notice of probate of will, or report may be obtained from the court only on or after the date specified…

A motion to compel accounting is a particular legal document that should be prepared by a licensed attorney. Nonconformity with the state and local rules of form and filing can waste a lot of time and money and frustrate a judge and their support staff, not ideal when your asking for the court’s help. Hiring a knowledgeable Ohio estate planning attorney will ensure your filing is accepted and in proper order.

What if a trustee doesn’t appear?

If a citation to compel accounting is issue from a probate and a fiduciary or trustee fails to file the requested documents or personally report prior to the appearance date specified in the citation, a probate court may resort to one or more of the following:

The removal of the fiduciary or trustee;

A denial of all or part of the fiduciary fees;

A continuance of the time for filing the requested documents;

An assessment against the fiduciary of a penalty of one hundred dollars and costs of twenty-five dollars for the hearing, or a suspension of all or part of the penalty and costs; or

That the fiduciary is in contempt of the court for the failure to comply with the citation and that a specified daily fine, imprisonment, or daily fine and imprisonment may be imposed against the fiduciary, beginning with the appearance date, until the account, inventory, certificate of notice of probate of will, or report is filed with the court;

Furthermore, if a fiduciary or trustee fails to appear in court on the specified date on the citation, a probate court can even go as far as ordering them to be taken into custody by a sheriff and forcibly brought to court.

The potential consequences facing non-compliant fiduciaries are severe, however, utilizing the court should only be used in extreme circumstances or as a last resort. As such, consult experienced Cleveland estate planning attorney before doing anything so serious. Doing so will ensure that the process is done correctly and expediently.

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 Cleveland Ohio

T.O.D. Designations to Avoid Probate

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.

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Trustees – Part I – You’re Named A Trustee, What Duties Do you Have?

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 […]

Baron Law Estate Planning Lawyer - Cleveland, Ohio

How Can I Amend An Existing Will?

Cleveland, Ohio, estate planning lawyer, Daniel A. Baron, Ohio, offers the following information on what documents are necessary for you to provide your attorney when sitting down to establish your comprehensive estate plan.

 

One of the primary goals of drafting a will is to encapsulate the entirety of a life’s material assets and leave instructions for the dispensation of those assets after death. The other goal is to leave some legacy, emotional, spiritual, or otherwise, to friends and family by communicating final wishes so at least some minor part of ourselves persists, at least for a little bit, after we’re gone. Implicit in the pursuant of these goals is the assumption that the circumstances and realities of the present will mirror those of the future. That, however, is never the case. Time passes, the world changes, and we change with it.

More often than not, the initial draft of a will is not definitive. Family dynamics shift, executors and beneficiaries pass away, people move, assets are conveyed, trusts are established to avoid probate and preserve assets, and the law changes. As such, wills often need to be updated or outright rewritten. Wills, however, are legal documents. As such, you can’t just edit a will with red pen and call it a day. There are particular ways to change a will, each with its own rules and procedures. As always, if your will needs changing, or if you don’t have a will at all, contact an Ohio estate attorney. No one wants to leave their family a confusing or invalid will to deal with during the mourning process.

Codicil

An amendment to a will is called a codicil. Codicils are the primary way to amend a will in Ohio and are meant to amend, alter, or confirm a previously existing will. A codicil doesn’t override a will but becomes a new part of the document. Codicils must be executed with the same formalities as a will. That is, it must be in writing, signed by the person drafting it, and witnessed by two disinterested parties who either saw the person sign or heard them acknowledge their signature. Further, the testator, the person making the will or in this instance the codicil, must possess sufficient legal capacity. That is, be 18 years of age, of sound mind and memory, and not under undue threat or influence.

Codicils are largely holdovers from the past before the existence of Microsoft Word and typewriters. Back then, wills were long, handwritten, and required multiple parties to be physically present during execution. As such, a simple amendment, rather than total rewriting, saved time and expense. Nowadays, though, since wills can be quickly amended and printed, drafting a new will is preferable.

Codicils do possess some persisting utility. In a medical crisis or where a person is on an extreme fixed income, use of a codicil may be viable. Codicils, however, are potentially problematic. Codicils can be executed improperly, establish an ademption, i.e. bequeathing property no longer owned or in existence, mistakenly revoke otherwise valid will provisions, or create ambiguity during probate. Further, any codicils must accompany the associated will. So, the misplacement or destruction of a valid codicil is a major concern when probating a will. Drafting a new will avoids these problems. Contact a Cleveland estate planning attorney to see what option is preferable for your particular circumstances. At minimum, an attorney can guarantee your family can actually find a will, and all the accompanying codicils, when the time comes.

Revocation

The other method of changing a will in Ohio is revocation, and subsequent redrafting. A will is revoked primarily the following ways:

1) a testator, with the intent to revoke, tearing, canceling, obliterating, or destroying a will.

2) an agent of testator, within the presence of testator or with testator’s written direction, doing the same.

3) by another written will or codicil, signed, attested, and subscribed according to the laws of Ohio.

Further, a revocation must have the same state of mind as with will creation, i.e. sound mind and body with no undue influence.

These methods of revocation are available if a will hasn’t been filed with a probate court. In the event that a will was filed, one must file a petition with the relevant probate court, using the standardized forms provided, and ask that the will be revoked. If the court determines that the revocation is valid, it will recognize the revocation and note it in public record.

Revoking a will is often simpler than drafting codicils. Every time concurrent estate documents exist and need to be read together, considerations with conflicting and superseding terms, ademptions, and ambiguity must be addressed. Furthermore, a probate court might reject a codicil which will likely throw an entire estate plan in disarray and balloon probate costs. Such costs are borne by the estate and might outright consume any money slotted to go to surviving friends and family. An Ohio estate planning attorney is in the best position to advise on the sufficiency of an existing will and whether revocation and redrafting is justifiable in your current circumstances.

 

Tangible Personal Property Memoranda

Though not available in Ohio, another potential method to amend a will is with a tangible personal property memorandum, “TTPM.” Most people use simple language to bequest remaining personal property to surviving friends and family. Usually by either leaving everything to the surviving spouse or to children in proportional shares. Facially, this seems like a fair and simple way to distribute an estate. In application, though, issues often arise. Certain children may feel snubbed or offended by a particular asset distribution or manner of distribution, as often is the case when one adult child served as a caregiver for ailing parents but received the same proportional estate share that less selfless children received. Further, often estate assets cannot be spilt equally. For example, splitting a timeshare in Aspen between three children and six grandchildren. Addressing and preventing these problems is where a personal property memo comes in.

As previously mentioned, this method of will amendment is not recognized as valid by Ohio courts and will be disregarded. This places an even greater emphasis on forethought when creating an estate plan and use of clear and concise language for bequests. An experienced Ohio estate attorney will know the common pitfalls and how to avoid them.

A few hours of planning can save thousands of dollars down the line and avoid embarrassing family infighting over who gets what. Life is perpetual change and estate planning attorneys try valiantly to predict the future and address any and every circumstance. Try as they may, however, the only thing one can expect is the unexpected. Therefore, it is always wise to be flexible and not to become entrenched in now old and defunct legal documents. Even if an estate plan covers 95% of what you need, the 5% unaddressed can easily cripple any well laid plan and lead to a lifetime of savings and earnings being extinguished by taxes, creditors, or penalties.

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 Attorney

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

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 Estate Planning Attorney

Spousal Rights – Are You Forced To Take What Is Bequeathed?

Cleveland, Ohio, estate planning law firm, Baron Law LLC, Cleveland, Ohio, offers the following information on how to handle your spouses will after they pass.   Are you forced to take what is left to you?  Contact Baron Law Cleveland to answer this question and any other questions you may have on wills and probate.

 

Humans are material creatures, it’s just how we’re wired. We all like stuff, we all want stuff. The only difference between people is the target of that want and the severity of that desire. Though the passing of a friend, loved one, or spouse is a mournful event whose significance shouldn’t be understated. At the end of the day, the most common question I hear when a person comes into the office with a will of a recent decedent is, “what do I get?” More often than not, the next question after that is, “what else can I get?”  

Whether its due to genetics, environment, habits, or just dumb luck, women live, on average, seven years longer than men. So naturally, women are more often responsible for probating their husband’s will and receiving distributions under it. Regardless of sex, however, under Ohio law, surviving spouses are granted the ability to elect either 1) to receive the surviving spouse’s testamentary share as provided in the decedent’s will, “taking under a will;” or 2) to take against the will. This “taking against the will” is called an election to take under the law. Which option to take is a momentous decision that can affect the total windfall of the surviving spouse, the distributions to beneficiaries and heirs, and temperament of surviving friends and family. A local Cleveland estate attorney is in the best position to calculate the options and spell out the pros and cons of each.  

If the surviving spouse elects to take against the will, the surviving spouse receives either one-half or one-third of the decedent’s net estate. The surviving spouse receives one-half of the decedent’s net estate unless two or more of the decedent’s children or their lineal descendants survive the decedent, in which case the surviving spouse receives one-third.  

So how does one elect to “take against a will?” After the appointment of an executor or administrator, the probate court will issue a citation to the surviving spouse to elect whether to take under the will or against the will. This election must be made within the five-month statutory period or else be forever barred. If you chose to take against the will, you return the form attached to the notice and the court sets a hearing.   

At the hearing to elect to take against a will, the probate judge or deputy clerk, who acts as a referee, will explain the will, the rights under the will, and the rights, by law, in the event of a refusal to take under the will. If the surviving spouse is unable to make an election due to a legal disability, the court will appointment an appropriate proxy to determine if an election to take against the will is the best course of action for the surviving spouse and, if it’s the best course of action, make the actual election.  

Unless a will expressly states otherwise, an election against a will results in the balance of the net estate being disposed of as though the surviving spouse had predeceased the testator. Furthermore, unless a trust says otherwise, if a will transfers property to a trust created by the testator during the testator’s life, such as with a pour-over will, and the spouse elects against the will, then the surviving spouse is considered for purposes of the trust to have predeceased the testator, and there shall be an acceleration of remainder or other interests in all property bequeathed or devised to the trust by the will, in all property held by the trustee at the time of the death of the decedent, and in all property that comes into the possession or under the control of the trustee by reason of the death of the decedent. Again, an election to take against a will can have serious ramifications for a decedent’s estate plan. An Ohio estate planning attorney will be better able to spell out the consequences of such an election and track which estate assets may be effected by an election and in what ways. 

It is important to note, however, that an election to take against a will does not alter or destroy the will for other beneficiaries. Upon an election against a will, the administrator or executor of the estate must still attempt to follow the testator’s intent and final wishes to the best of the fiduciary’s ability as to all others in a will except the surviving spouse.   

The only real ways to waive or eliminate the statutory right of the surviving spouse to elect to take against a will is either a valid prenuptial agreement or antenuptial agreement. These agreements, however, are not guaranteed effective and are only valid if 1) they have been entered into freely without fraud, duress, coercion, or overreaching, 2) if there was a full disclosure, or full knowledge and understanding of the nature, value, and extent of the prospective spouse’s property, and 3) if the terms do not promote or encourage divorce or profiteering by divorce. With the recent rise of divorce rates in America nuptial agreements are steadily gaining in popularity and use. As such, consult an Ohio attorney to find out if nuptial agreements are right for you or if the nuptial agreements you already have are either valid or actually fulfilling their intended purpose.   

Spousal rights were created to ensure that surviving spouses aren’t maliciously or wrongfully cut out from a will. Improper disinheritance from a will can result in a surviving spouse falling into poverty, being kicked out of a lifelong martial home, or becoming a burden on friends and family. Though it may seem unseemly to focus on material possessions when a spouse passes, the responsibilities and burdens of day to day living still persist regardless. You still need food in the fridge and a roof over your head. After all, as Langston Hughes said, “life is for the living.”  

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.