Probate Court, Wills and Estate Planning:
Wills, Estate Planning, and Probate Court matters can seem complicated and overwhelming at times. We will walk you through the process step by step, so you are comfortable and can make informed decisions regarding your goals and needs. The follow is some basic background information to get started:
Definition of an Estate?
An Estate is what a person who dies (called the "decedent") leaves behind in terms of debts and assets which are handled through legal proceedings in the local county Probate Court. Certain assets like life insurance and retirement accounts with a named beneficiary do not go through the Probate Court, and instead go directly to the named beneficiaries.
What happens if there is no will?
No the government doesn't take the money unless the person has no surviving relatives at all. If there is no will, the money is distributed according to ORC 2105.06. This means for a typical family (living spouse, children, and parents), everything goes to the spouse. If there is no spouse, then everything is divided equally between the children. If there is no spouse and no children, everything will go to the decedent's parents. The probate court will appoint an Administrator to make sure the decedent's debts, including funeral and burial expenses, are paid and what is left is distributed appropriately.
What are the requirements of a will?
According to ORC 2107, for a will to be valid it just needs to be written and signed at the end by the person making the will (called the "Testator"), with two competent witnesses signing who are at least 18 years old. The Testator must be at least 18 years old, and of sufficient sound mind and memory to have a good understanding of what they are doing. The witness must sign below the Testator's signature acknowledging that they actually witnessed the Testator sign, or head the Testator acknowledge his/her signature. The will can be typed or handwritten, the signatures do not have to be notarized, the witnesses do not have to read the will, and the will does not have to be filed anywhere prior to the person's death. However, the witnesses cannot be named beneficiaries in the will.
Do I need a Will or a Trust?
If you don't have a will, your money will be distributed at the time of death according to the default rules as defined by law. A will allows you to take control of how your money is distributed at the time of your death to a certain extent. Trusts were more common in the past as a means of avoiding the estate tax. However, the estate tax was repealed in Ohio, and the federal estate tax as of 2018 applies only to estates over $11.2 million. So the only reason to have a trust at this time is if you want to control how your money is distributed or used for a significant amount of time after your death. For example, if you want to give your daughter a fixed amount of money per year after you die with the remainder only when she graduates from college, then you will need a trust. A will only defines how your money gets distributed at the time of your death.
How much does the Administrator / Executor get for serving?
The person appointed by the court to be the Administrator or Executor of the estate is owed a fee per Ohio Revised Code 2113.35 as follows:
1) 4% of first $100,000
2) 3% everything above $100,000 to $400,000
3) 2% of everything above $400,000
4) 1% of real property (real estate) not sold
5) 1% of all property that is not subject to probate administration except joint and survivorship property.
The Court may award additional fees for extra ordinary services. Attorney fees are subject to negotiation but typically total about the same or a little less than the Administrator fees for an average uncontested case.
Advance Directives Forms:
Common forms for an Ohio Living Will, Healthcare Power of Attorney and Funeral Arrangements can be found HERE.
The State Will Recover Their Medicaid Costs from the Estate:
The government has the right to recover the money they spent on a person's Medicaid costs such as the cost of healthcare and nursing homes. There are a few exceptions such as if assets are being passed to a child under 21, or to a blind or disabled child. Generally though, if a person takes advantage of significant Medicaid services, the Probate Court will make sure that the attorney gets paid, and the Executor gets paid,and then the remainder will likely end up going to paying off the debts including the Medicaid lien.
International Probate Work:
There are times when a person dies in the U.S., but the beneficiaries or assets are overseas. These cases pose significant challenges and we have the experience to handle them.
Each case is different, and there are many considerations to take into account that might apply to your case. Call or E-mail us now for a Free Consultation.
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