Will My Estate Have to be Probated?

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By Roy Whited

While I have heard some very detailed definitions for the term “estate”, I especially like the one used by Certified Elder Law Attorney Thom L. Cooper during his educational seminar for seniors: He says, “It is all your stuff; all of the things that you own at your date of death; put it in a box and it makes up your estate.”

However, while you may only have one ‘box of stuff’ or estate, your estate may be made up of many different It is all your stuff, all of the things that you own in your name at your date of death; put in a box and it makes up your probate estatetypes of estates. For example you can have a probate estate, a non-probate estate, a trust estate, a taxable estate, and a non-taxable estate. In this writing we will be talking about your probate estate.

Generally, a probate estate is made up of any asset owned by an individual at their death that is subject to probate administration. The probate administration process is designed to provide proof to the probate court that the individual’s Will is genuine.

Types of assets found in a probate estate:
All assets that are owned in the individual’s name alone
All assets that are owned by the individual as a “tenant in common”
All assets that are payable to the estate of a beneficiary
All assets owed to the individual before death but are paid after the date of death
Other personal property items such as household goods, jewelry, etc.

Probating an estate can be costly and time consuming, causing delays in the distribution of assets to heirs. Call 1-800-798-5297 and schedule a free one-hour consultation with a Certified Elder Law Attorney at Cooper, Adel & Associates to learn how to avoid probate.

Estate Planning for the Modern Farming Family

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By: Senior Attorney Dan Vu

White barn with Ohio logoI have always found that farming families are more aware of the importance of proper estate planning than the general population. This is perhaps, because most farmers have a story or two of an estate plan that went terribly wrong. I am never surprised, because there are plenty of ways for an estate plan to fail, especially for farmers.

For farmers, the stakes are high and the goals are even higher. For example, most want the farm to stay in the family for their children who want to continue the farming tradition. The difficulty is somehow also providing for the children who don’t want to farm while burdening all of their children with as little tax and debt as possible. These are long-standing problems for farmers, and I am certain that the fairly recent boom in farmland prices have only exacerbated the problems.

With these issues looming, most farmers attempt to resolve them earlier than most other families. I confirmed this when I was recently working in our booth at the Farm Science Review in London, Ohio. Many farmers I met already had a revocable living trust in place. This was good news since I believe that a revocable living trust is a necessity for a farming family. If properly created and utilized, it can resolve many of the farmer’s concerns. However, I was also glad to be there to explain how a typical revocable living trust cannot, on its own, solve all of the problems that face a modern farming family.

The most often overlooked but most costly modern problem is the devastating expense of long term care. Today an extended stay in a nursing home could literally cost the farmer his or her farm because, unfortunately, a revocable living trust cannot protect the farm against these long term care costs. In fact, the State routinely requires farms to be sold to pay for the cost of long term care… and … the State will place a lien on farms that can’t be sold.

Also often overlooked is the problem of the capital gains tax. This is not a new problem but with elimination of the Ohio Estate Tax and the increase in the Federal Estate Tax exemption, the modern farming family has a new opportunity to take advantage of the “step-up in basis” rules. A “step-up in basis” occurs at a farmer’s death and it allows the family to re-depreciate assets or sell them with little to no capital gains tax. Before the changes in the estate tax, the farming family would have to choose between paying the estate tax or receiving a favorable capital gains tax treatment. With these recent estate tax law changes, many farming families can now receive favorable capital gains tax treatment without a large estate tax.

It’s not often that the government lets you have your cake and eat it too. But you do not get the full use of the “step-up” rules with a typical revocable living trust. In fact, many of these older trusts were created before the estate tax law changes and most put the farming family in a worse tax position than they would have been with no trust at all.

So if you are a farmer, it is important that you take another look at your revocable living trust and your existing estate plan as a whole. Make sure it is built to face the modern problems of today’s farming families. I know you are thinking that you already took the time to do so years ago with some attorney who you can barely recall. But unfortunately things change, so make sure your plan changes with it. Swing by our booth at next year’s Farm Science Review or better yet, call us after this year’s harvest for a complimentary appointment with one of our knowledgeable attorneys.

What’s the Best Way to Give My Stuff Away When I Die?

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By Attorney Ted Brown

Screen Shot 2014-07-21 at 1.34.22 PMThere is no doubt about it: Americans have a lot of stuff. Surveys consistently show that of all the Americans that have a garage, the majority of them cannot fit a vehicle inside it due to the fact that it is dedicated exclusively to the storage of stuff. “Stuff” can be almost anything, from furniture, family heirlooms, collections, clothing, tools, valuables or all those things earmarked for that future garage sale.

The trouble is what happens to all that stuff when we die? Most of the conflicts that arises in the estates that I handle deal with that stuff. Heirs generally don't argue over the money or the land but they frequently argue over who gets the stuff.

Therefore, if you have stuff that is important to you, it is very important to address it as part of your estate planning. For example, if you have a trust you want to make sure that your personal property is properly assigned to that trust. You can then provided specific instructions about who gets what within the language of the trust itself.

Specificity is always a good rule of thumb. As much specific instruction that you can put in writing about who gets what, where that item is located and how to tell it apart from the other stuff can go a long way to smooth out any potential disputes. It is important that these instructions are written in a way that someone who doesn't know anything about these items can read and understand it. These instructions should be signed and dated by you at the bottom of the document.

If you do not have any specific wishes then it is important to provide a method by which disputes are to be settled. For example, items are to be sold and the proceeds divided if the heirs cannot agree. Or perhaps heirs can choose items by “drawing straws.” Use your imagination.

In most cases, when a resolution process is provided along with carefully written distribution instructions, it will usually be followed and can save the family years of conflict and heartbreak. Your stuff is an important part of your formal estate planning, particularly if you believe as we do that “it should be easier for those who are left behind”. Please be sure to find experienced elder law attorneys to help you with the process.

 

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Don’t Try DIY Estate Planning

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By: Chris Meyer

We live in a world today where we are encouraged to “do-it-yourself”. In some scenarios, doing something yourself can be a rewarding and cost-efficient experience. However, this is most certainly not the case with estate planning. With the ongoing advancements in technology, certain websites are seemingly making it easier and easier to create your own legal documents such as a Will, Trust, Power of Attorney, and LLC. In theory, this sounds as though this would be a quick and easy way to complete your estate planning on your own. However, this is actually not the case. One main reason that do-it-yourself estate planning is usually not the best idea is that everybody’s situation is different. What might make sense for your family does not always make sense for someone else’s family. With a do-it-yourself Will or Trust, you are given a “one-size-fits-all” template and simply told to fill in the blanks. Estate planning is not that simple since everyone has a different amount of assets and different types of accounts, vehicles, property, etc. that compile their entire estate.

 

    Another main reason that do-it-yourself estate planning doesn’t work is that there is no type of recommendation as far as what will work best for you. In attempting to complete your estate planning on your own, self-help website fail to answer certain critical questions. These questions may include but are not limited to: How are your assets currently being held? Are you a veteran? What type of insurance do you have, if any? How should you decide who should be your Trustee, Executor, Power of Attorney, etc.? Would a Trust or a Will make more sense in your situation? What type of Trust should you have?

 

    By establishing your estate planning with Cooper, Adel & Associates you are ensuring that your estate plan will be handled with a sense of compassion and expertise that you simply cannot get through self-help estate planning venues. If you, or a loved one are interested in learning more about protecting assets for your children and other loved ones, please give us a call for a free one hour consultation with either Attorney Thom Cooper or Attorney Mitchell Adel at 1-800-798-5297.