Category Archives: Estate Planning & Admin

Last Will and Testament. A Last Will and Testament directs the distribution of probate assets upon the death of an individual (“testator”).  Probate assets are assets held in an individual’s name at the time of his or her death that do not otherwise transfer by contract (e.g., transfer on death designations, joint and survivorship, etc.).

Probate assets are subject to the oversight of Probate Court and administered in the County in which the decedent resided at the time of death.

The Last Will and Testament includes a provision for the designation of the personal representative (Executor) of the testator’s choosing, to be appointed by Probate Court.

Trust.  A Trust is a legal relationship whereby property is held by one party for the benefit of another.  There are two (2) basic categories of written Trusts; Living Trusts (Inter Vivos Trusts) and Testamentary Trusts.

The primary difference between a Testamentary Trust and a Living Trust in Ohio is that the Testamentary Trust is under the supervision of the Probate Court from the appointment of the Trustee to final distribution.  In connection with a Living Trust, the Trustee administers the Trust without the involvement of the Probate Court, except under certain special circumstances.  An advantage of a Living Trust is that the Trust, Trust assets, and distributions are not of public record.

Living Trusts are revocable or irrevocable, and are set up during the lifetime of the Grantor.  Trusts are also very useful for setting up funds for the benefit of someone who is handicapped or incompetent.  They are frequently used by parents and siblings for a “special” family member.  Trusts can also be used in Medicaid planning.

Living Trusts are often used in moderate and large estates to assist management and to avoid incurring Executor fees and reduce attorney fees at death.

Testamentary Trusts are established in the Grantor’s Last Will and Testament, and are funded, if ever, after the death of the testator.  A Testamentary Trust may never be funded because the testator may make funding contingent upon certain circumstances; for example, the Last Will and Testament may state that the Executor funds the Trust only if the testator and the testator’s spouse both die while their children are minors.

Ohio law gives Probate Court the exclusive power to direct and control the conduct of the Testamentary Trustee.   The Testamentary Trustee is required to prepare and file with Probate Court, an account of the Trustee’s administration of the Trust at least once in each two (2) years, or at any other time upon order of the Probate Court.  The account must include an itemized statement of all receipts of the Testamentary Trustee, and of all disbursements and distributions made by the Testamentary Trustee during the accounting period

An important component of almost any estate planning is a general durable Power of Attorney for financial matters.  Such a Power of Attorney allows the person granting the power (the “Principal”) to designate an attorney-in-fact to perform specific duties as enumerated in the document.  Unless a Limited Power of Attorney is being granted, the attorney-in-fact is typically granted full power, authority and discretion to do all things required or permitted to be done in carrying out the purposes for which the Power of Attorney is granted as fully as the Principal could do if personally present.

Typically, some of the specific powers granted to the attorney-in-fact include, but are not limited to, the authority to sell, exchange, lease and otherwise dispose of the Principal’s property, to execute and deliver deeds, leases, assignments and other instruments, to sign and perform contracts and written instruments, to endorse and receive payment for checks payable to the Principal, to sign and deliver checks on accounts of the Principal, to withdraw from and deposit to the Principal’s accounts, and to add property to a revocable trust that has been created or may be created by the Principal.

As an attorney-in-fact is granted broad powers to act on behalf of the Principal, it is imperative that the attorney-in-fact understands that he or she is acting as the agent of the Principal in a “fiduciary” capacity.  A fiduciary must act in the highest good faith for the Principal’s benefit.

The attorney-in-fact must follow the instructions set out in the Power of Attorney, must use ordinary care and diligence in everything he or she does on the Principal’s behalf, and can only do the things the Principal has empowered him or her to do.  The attorney-in-fact is held to a high standard of care when acting for the Principal.  Therefore, any transaction that may be suspect, if viewed by a third party, should be avoided, which would include checks written to the attorney-in-fact and signed by the attorney-in-fact, or even signed by the Principal.  The attorney-in-fact should not do anything that does not benefit the Principal.

If you are interested in talking to our Estate Planning team regarding a Power of Attorney or any other estate planning matters, please don’t hesitate to contact us.  We look forward to making a difference for you and your family.

 

Kevin J. Hopper is an experienced estate planning attorney whose practice has been in Anderson Township.   He has been in practice since 1978.

In August, he joined his practice with the Finney Law Firm, LLC, and brought with him his experienced paralegal, Tammy C. Wilson and their many satisfied clients.

They join attorney Isaac T. Heinz in providing advanced and sophisticated services in the areas of will, trusts, estate planning, and estate administration, and the tax and succession planning advice that comes with that practice area.  They provide these services for individuals with both large and small estates.

Please ask us how these experienced professionals can “make a difference” in planning for your future.

One of the ‘Pillars of Success’ that we build with our clients is proper Estate Planning.

• Assuring that your assets go to your intended beneficiaries;
• Minimizing your taxes and costs of probate administration;
• Careful business succession planning; and
• Healthcare and financial powers of attorney.

Finney Law Firm is pleased to announce the expansion of our Estate Planning and Administration practices with the addition of Attorney Kevin Hopper and Paralegal Tammy Wilson to our Estate Planning team anchored by Attorney Isaac T. Heintz.

Please contact our experienced estate planning team to guide you through this important process.

A recent First District Court of Appeals decision highlights the importance of a thorough and properly executed will – particularly if you are seeking to disinherit a child or grandchild.

In Chambers v. Davis, C-130645, the decedent’s will specified that her daughter and grandson were to receive nothing from the estate, and bequeathed specified items to a niece.  The execution of the will was witnessed by the niece and one other witness.  There was no residuary clause directing the disposal of any remaining assets.

In general, Ohio Revised Code Section 2107.15 invalidates bequests to a person who is one of only two witnesses to the execution of the will.  Based on this section, the Probate Court declared the bequests to the niece void.  Because there was no residuary clause directing the gift otherwise, the specific property left to the niece was then distributed as if the decedent died without a will.

Under the statute of descent and distribution, the property that had been left to the niece passed to the disinherited daughter contrary to the desire of the decedent.

The court reported that Ohio probate law requires more than a simple statement directing that the disinherited party receive nothing.  To effectuate a disinheritance, you must properly disinherit the applicable party, and bequeath your assets to devisees other than the disinherited party.

To make sure your wishes are carried out, make sure your will contains a residuary clause and is properly witnessed.

Unless a couple has assets in excess of five million dollars, estate taxes are no longer a concern for Ohio residents.  This is because Ohio has done away with its estate tax, and the Federal estate tax exemption is now over five million dollars.  For such couples, the new estate “tax” planning is income tax planning.  The income tax planning includes allocating assets between the couple to take advantage of the step up of basis on each of the individuals passing in order to minimize any capital gains taxes due.