Category Archives: Probate

A Note on Survivorship Deeds

By Attorney Ted Brown

In the course of my work in Estate and Trust Administration, I often encounter the misconception that real estate owned jointly among spouses contains a right of survivorship. As a result, I see property end up in probate and the estate burdened with time-consuming and costly hassles that could have been avoided.

A right of survivorship is not conferred automatically to joint owners or joint tenants through a general warranty deed. This right is created only by specific wording on the deed itself and is more commonly seen is what is known as a survivorship deed.

While this nuance of property law is lost on many, it is not lost on a probate judge. Spouses, or other joint owners of property, each own an undivided one-half interest in that property. When one spouse dies, that half interest does not automatically pass to the other spouse unless a right of survivorship is granted within the deed. This means that in order for the surviving spouse to get clear title to the entire property, the deceased spouse’s half must go through probate. This can take months and add thousands in unnecessary expense.

The hassle of probate can easily be avoided by placing the property into a trust or with a properly drafted survivorship deed. It is important to seek the counsel of an Elder Law Attorney to explore these options.

 

How Married Couples should Avoid Probate

By Attorney Dan Vu

As an Ohio Elder Law Attorney, I am glad to see more and more couples take the necessary steps to avoid the cost and hassle of probate court after their deaths. Most couples avoid probate by owning assets jointly with rights of survivorship. That means the asset is titled so that it will pass automatically to the surviving spouse upon the first death. Although I am glad to see this, I always urge couples to take the next step and finish what they started. Instead of protecting the asset from probate only when one spouse dies, I would urge them to consider taking additional steps to avoid probate if both of them pass away at the same time.

For example, if you own your home or car jointly with your spouse with rights of survivorship and you both pass away at the same time, your home and car will go through probate before being distributed by your Will to your children. A simple way to avoid the cost and hassle of probate for your children, even in this tough-to- imagine scenario, would be to establish a Living Trust. With a Living Trust, even if you both die at the same time, your children will receive the asset without having to endure the delay and cost of the probate process. Further, you have the option to choose a Trust whereby those same assets could be sheltered from applicable federal and state estate taxes, nursing home liens, or even from your children’s creditors.  Make sure you see a qualified elder law specialist to see how best to meet your needs.

 

Probate, Privacy & You

By Attorney Ted Brown

As an Elder Law attorney, I often advise clients of the many benefits of avoiding probate by placing their assets in a trust. Among these benefits are decreased cost of administration, survivor’s immediate access to trust assets and the ability to keep the details of your estate plan private. When a will is admitted to probate it becomes a matter of public record, including the details of what your assets are and who will be getting them.

Apart from the obvious, this lack of privacy can have many negative consequences. I recently heard of a case where a real estate investor used probate records to find business leads. He would search the records for elderly widows holding the family home and attempt to “make on offer” on the house. He would also contact the executor and the attorney for the estate, whose information is also public record, and attempt to inject himself into their affairs, offering cash up front and help finding the surviving spouse new living arrangements. His offers were always low, and played on the economic uncertainty of both the real estate market and the personal finances of the surviving spouse.

This is just one example of the importance of an estate plan focused on avoiding probate. Under Ohio law, assets placed in a trust automatically pass to survivors and do not become public record. Not only does this protect your privacy and the privacy of your estate, but it also protects our heirs from swindlers in their hour of need.

PROBATE ISSUES EVEN WITH A TRUST?

By Mary C. Roberts

YES, there are probate issues that can come up even with a trust and all assets funded to the trust.

Ohio Law says that if a lawsuit has to be filed on behalf of a decedent for the benefit of his or her heirs, that suit must be filed by a representative of the estate and that Letters of Authority must be issued by the Probate Court of the County in which the decedent held residence.

If the decedent was involved in an auto accident or any type of accident or wrongful act that contributed to their death, Ohio Revised Code Sections 2117.05, 2125.02 and 2125.03 state that a wrongful death action must be filed with the Probate Court in order to pay proceeds of settlement to the proper heirs, and that the Probate Court must determine and approve proper distribution to heirs. One of the most common claims we are finding out there today are Mesothelioma Claims.

If you find yourself in a position where there is any possibility of this situation in your life or have been contacted concerning any possible settlement regarding wrongful death, you must find an attorney who can and will file the appropriate pleadings in Probate Court.  Cooper, Adel & Associates has an Estate Administration Department that is  seasoned in these matters and anxious to serve your needs.

What Happens If Out of State Property Has To Go Through Probate?

By Lauren Cooper

It is important to confirm that you have a beneficiary named for all out of state property, even timeshares, to avoid probate.  If an out of state property has to go through probate, then your fiduciary will have to handle what is known as an ancillary administration.  In an ancillary administration, a probate estate must be opened in both the state of the decedent’s residency as well as the state where the property is located.  The probate estate must be opened in the state of the decedent’s residency even if none of their other assets require a probate administration.  Regardless of how well you have constructed your estate plan, if you have an out of state property that has to go through probate, then your fiduciary will have to retain two Attorneys in two different states and pay them both the large legal fees that are associated with probate.

You will most likely have to retain an out of state Attorney in order to probate avoid (that is, identify a beneficiary for) your out of state property.  In choosing your out of state Attorney, you should choose an elder law attorney that is familiar with how to ensure that your property will not go through probate.  Feel free to call our office and we can refer you to an elder law attorney who certified in the state where you real estate is located.

Whatever you do, don’t let that out of state property ruin your estate plan!  Taking the initiative to be sure that the property is probate avoided will save your heirs the headache, time, and cost of dealing with it after you are gone.

What happens if you don’t have a will?

By Angie Hall

There are many ways to make it easier for your family when you pass away.  One is to make sure that you have named beneficiaries on your assets – your real estate, cars, boats, bank accounts, investments, insurance and annuities.   But what if you don’t?

1) Your estate is guaranteed to go through the Probate Court (even if you have a will–wills require the probate process to distribute assets without beneficiaries).

(2) With a Probate, your out of pocket cost can be much more than it costs to initially create and administrate a trust or otherwise avoid probate.

(3) Your Probate case can take a lot of time to complete, you are at the mercy of the probate court in your county.

(4) Your Probate case will be open to public inspection.  That means that your neighbors and distant family can look at your assets and will know where you wanted the assets to go.

(5) You won’t be able to prevent your minor child from inheriting your assets outright at age 18 (your child could ruin his or her life by inheriting too much too soon: drug abuse, buying an expensive sports car and crashing it, not becoming a productive member of society because of the “I have money, I don’t need to work syndrome”, etc.).

If you want to learn more about the different ways to avoid probate, contact our office.

Death Planning vs Life Planning…

by:  Attorney Thom L. Cooper

When most people go to a lawyer they become involved in  “death planning.”  After a short meeting with the lawyer the clients are typically sent home with a will (which guarantees going through probate). At their death, a family member is expected to return to the lawyer’s office so that the lawyer may probate the will.

In contrast,  at the Thom L. Cooper Company we prefer to focus on “life planning” and probate avoidance.  Think about the difference!  Most of our seniors that come to us are healthy and vigorous and they expect to live a number of years.  Indeed one of the fastest growing segments of our population is between 90 and 100.  So we routinely expect to work with our clients for 10-40 years.  Traditional death planning just looks at the absolute end of this journey.  By contrast life planning looks at the entire journey.  Below are some of the things we consider in building a life plan for your family.

  • Building a profile of your family situation to identify trouble spots or special needs
  • Documenting your assets, including the amounts, types and risk levels associated with the assets
  • Determining the vulnerability of particular assets with respect to taxation and catastrophic illness
  • Developing and implementing tax and asset protection strategies tailored to your assets
  • Developing a plan that allows you to choose who can act on your behalf if you are incapacitated , without court proceedings
  • Familiarizing you with critical tripwires that alert you when to come back to review and update your plan
  • Providing guidance to avoid probate costs, paperwork and delays
  • Counseling your family at your death or disability about steps to take to preserve your wealth

Its just as important to remember that once we set the above plan in place you need to be sensitive that the plan must be revised.   We encourage and expect clients to come back during their lifetime so their plans may be revised for changes in their situations.  For example, your plan should be revised for:

  • Changes in your health.  For example, if your spouse becomes incapacitated and your plan leaves everything to your spouse that is probably not a good plan anymore.
  • Changes in family.  For example, if your children get in an auto accident and are sued then you need to change your plan to avoid creditors attacking inheritances for those children should you die while they are involved in the lawsuit.
  • Changes in the law.  For example, when the tax laws are changed, they can have significant changes to your life plan.

As most people who are the retirement phase of life know, getting older is the beginning of a new and difficult journey which is likely to last years… and that journey is not for the faint of heart.

If you are interested in seeing what your “life plan” would look like please give us a call at the Thom L. Cooper Co.

Bono, Ledger, Jackson – Bad Examples of Estate Planning

By Angela Hall

How do you motivate someone to consider estate planning? You can educate clients about proper estate planning and how it can help them, their families, and their estate tax returns. The fact of the matter remains, however, that many people will have excuses to push their legal planning until later. They think they have plenty of time.

There are plenty of legitamate reasons to delay: being too busy with the kids, jobs or other responsibilities. Some find it a very uncomfortable subject, or have uncooperative spouses or parents who make it difficult. Whatever the reason, when it comes to proper estate planning it is vital to search out all of your options, and do it before you are facing a crisis. These are just a few examples of celebrities who did not have good estate plan.

  • Sonny Bono was 62 years old when he died unexpectedly in a skiing accident. He did not have a will or trust and left his widow with a lot of complicated issues because of his lack of planning.
  • Heath Ledger failed to update his will after the birth of his daughter, therefore is was a unfortunate that his wishes in regard to how she was to be taken care of were not considered.
  • Michael Jackson caused his family many unnecessary trips to the courthouse because he did not properly “fund” his trust.

Take a lesson from these examples: be certain that your will or trust has been updated and that assets have been transferred into your trust. It’s not enough to just “do” the documents, they need to be done the right way and updated in light of new laws and life changes. It is also vitally important that you hire an attorney that specializes in elder law and estate planning. “One-size-fits-all” forms are not the way to go when it comes to developing an estate plan. Your documents should be customized to fit your particular needs and desires.

What You Can Learn from Gary Coleman’s Poor Planning

By Attorney Renee Fox

Prepare yourself for groundbreaking news: Lady Gaga has more friends on Facebook than you do! In fact, she has more Facebook friends than any other living person. She has more than 10 million friends. Regardless of his death one year ago, Michael Jackson currently has more Facebook friends than Lady Gaga; And many other dead celebrities aren’t doing too bad either. Let’s take a look at the late Gary Coleman; whose estate has recently made headlines.

Gary Coleman’s Estate

Gary Coleman was a child who starred in the TV sitcom Diff’rent Strokes between 1978 and 1986. He grew to hate his catch phrase “Whatchu talkin’ ’bout Willis?”even though it made him millions.

Gary Coleman was paid as much as $100,000 per episode but had financial difficulties later in life. After funds went to his parents, agents, lawyers, and taxes, only a quarter of his earnings may have reached him. After the mismanagement of his Trust by his parents Coleman was forced to declare bankruptcy.

Coleman made appearances, married and divorced, attempted suicide, had kidney transplants, worked as a security guard, was prosecuted for punching a woman who mocked him, collected model trains, and ran for Governor of California in 2003 and placed relatively high in the rankings.

Tragically, Coleman died earlier this year after suffering from a head injury. Three people are in the running to be the special administrator of Coleman’s estate. One is his ex-wife, another is his former girlfriend, and a third is his former manager. Manager Dion Mial relies on a 1999 last will and testament that names him as executor. Former girlfriend Anna Gray relies on a 2005 will. Ex-wife and alleged surviving common law spouse, Shannon Price, filed a 2007 codicil that purports to amend all prior wills. She is hoping to locate a subsequent will naming her as executor.

Logically, the 2005 will would revoke the 1999 will. A handwritten note from 2007 would not have significant legal effect, unless it was executed with all the will formalities, such as witnesses and notaries. But it could be used to show his intent to revoke the 2005 will and may be accepted as a holographic will in some jurisdictions.

Getting married in 2007 could also cast doubt on earlier wills. However, Shannon Price and Mr. Coleman were divorced at the time of his death. Her basis for inheritance rests on her allegation that they reconciled and formed a new relationship after they were divorced. Court documents indicate that the two lived together, shared bank accounts, and held themselves out to the world as married, even after the divorce. Price was also Coleman’s agent in his advanced health care directive, and she gave the order to take Coleman off of life support. At the time of his death, Coleman was living with his ex-wife, Shannon Price, and his death certificate indicates that he was married.

Is this an estate worth fighting over? Remember, he declared bankruptcy in 1990? The answer depends upon the value and size of his estate both at and after death. There is still marketing to be done, book deals to be made, movie rights, and sales of memorabilia to be had. He had a home, a pension, and residual rights. To show the value of such media attention, Price is reported to have photographed Coleman on his deathbed and then sold the photos to the tabloids.

Final Thoughts

Sound estate planning can involve sophisticated plans that protect assets from creditors and predators, avoid unnecessary taxation, and build assets over generations. But there is also something to be said for a simple document that names executors or trustees and distributes your assets according to your wishes. It can avoid years of litigation and family turmoil. Large or small, we all need an estate plan contact the Attorneys at the Thom L. Cooper Company to set up an appointment today.

A Probate Over a Safety Deposit Box?

By Lauren Cooper

probateAfter her mother had passed away, Sharon and I met to discuss what needed to be done to settle her mother’s estate.  We had previously worked with Mom, who was a widow, with the goal of protecting her children from the hassle and expense of probate.  We established a Revocable Living Trust for Mom and during that process she had mentioned to us that she had a safety deposit box at her local bank.  We advised her to go to the bank and have it re-titled into her Trust.  When Mom went into the bank to do this, the bank teller told her it was unnecessary to retitle the safety deposit box because Sharon already had full access to the box.  However, after Mom passed away, it became clear that what she had been told regarding her safety deposit box was misleading.

Mom’s real estate and bank accounts were all titled into her trust and were therefore immediately under the control of her appointed Successor Trustee, Sharon.   Within a month of Mom’s death all of the bills were paid and the assets were ready to be distributed, however there was one thing that Sharon had not handled—the safety deposit box.  When Sharon went to Mom’s bank, the teller informed her that she no longer had the ability to access the box because she had only been listed as Power of Attorney over the box.  Unfortunately, the authority provided through a Power of Attorney ends at death.

The bank continued to refuse access to the safety deposit box by anyone but an Executor appointed by the Probate Court.  Unfortunately, Sharon had no choice but to open a probate administration, which much to Sharon’s dismay would make everything in the box public record.  Even with all of the heirs cooperating, it took over two months of submitting documentation to the Court before Sharon was appointed Executor and the bank let her remove all assets from the safety deposit box.  At this point you must be wondering what was actually in this the safety deposit box.  No it wasn’t gold, diamonds, or stock certificates.  When Sharon went into the box, all that was there was one $50 bond that was worth around $35!

For the most part, our clients that require probate administrations of their estates never saw an Elder Law Attorney prior to their death to establish an estate plan.  However, in this case, Mom’s one innocent mistake brought about by the short-sighted advice of an employee at her local bank caused her heirs several additional months of time and hundreds of dollars in Court costs.

Luckily, you can fix or avoid this problem easily as long as you are aware of what needs to happen and, in some cases, are persistent with your bank.  Safety deposit boxes can usually be re-titled into a Revocable Living Trust, which would give the Successor Trustee immediate access to them. If you do not have a trust or if your bank does not allow for your trust to be the owner, then you should register your Successor Trustee as a co-owner of the box.  If you have a safety deposit box, this simple measure will prevent the loss of time and money that our client’s heirs had to endure.



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