Estate Administration, General/Finance Power Of Attorney, Healthcare Power Of Attorney, Guardianship, Last Will And Testament, Name Change, Living Will, Trust

Probate Law: As A Fiduciary, What Should I Do To Prepare For Seeing The Estate Attorney?

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Probate Law: As A Fiduciary, What Should I Do To Prepare For Seeing The Estate Attorney?

Daryle C. Tibbs, owner of Tibbs Law Office, continues a new series dedicated to the topic of Probate Law.

For more online sources on this and similar topics, please visit our firm youtube channel at:

www.youtube.com/tibbslawoffice

www.youtube.com/tibbslawofficeKentucky

Tibbs Law Office, LLC
8845 Governors Hill Dr., Ste 450
Cincinnati, OH 45249
(513) 793-7544
www.tibbslawoffice.com

Probate Law: How Long Does The Administration Of An Estate Take?

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Probate Law: How Long Does The Administration Of An Estate Take?

Daryle C. Tibbs, owner of Tibbs Law Office, continues a new series dedicated to the topic of Probate Law.

For more online sources on this and similar topics, please visit our firm youtube channel at:

www.youtube.com/tibbslawoffice

www.youtube.com/tibbslawofficeKentucky

Tibbs Law Office, LLC
8845 Governors Hill Dr., Ste 450
Cincinnati, OH 45249
(513) 793-7544
www.tibbslawoffice.com

Probate Law: What Are The Duties Of The Executor?

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Probate Law: What Are TheDuties Of An Executor?

Daryle C. Tibbs, owner of Tibbs Law Office, continues a new series dedicated to the topic of Probate Law.

For more online sources on this and similar topics, please visit our firm youtube channel at:

www.youtube.com/tibbslawoffice

www.youtube.com/tibbslawofficeKentucky

Tibbs Law Office, LLC
8845 Governors Hill Dr., Ste 450
Cincinnati, OH 45249
(513) 793-7544
www.tibbslawoffice.com

Probate Law: How Do I Open An Estate Bank Account?

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Probate Law: How Do I Open An Estate Bank Account?

Daryle C. Tibbs, owner of Tibbs Law Office, begins a new series dedicated to the topic of Probate Law.

For more online sources on this and similar topics, please visit our firm youtube channel at:

www.youtube.com/tibbslawoffice

www.youtube.com/tibbslawofficeKentucky

Tibbs Law Office, LLC
8845 Governors Hill Dr., Ste 450
Cincinnati, OH 45249
(513) 793-7544
www.tibbslawoffice.com

National “Make a Will” Month

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Recently, I have had many clients contact me about making a will; more so than in any other month.  I knew that it was National “Make a Will” month but I did not think that anyone else knew that.  Even if they did, I didn’t think that “national -anything-months” actually moved people to action.  I’m beginning to beleive I was wrong about that. 

By making July the National “Make a Will month, “they”, whoever “they” are, are reminding us to do something that we all should do.  I am the first to say that not everyone needs a will.  I have had many young professionals ask me if they need a will and depending on the circumstances, the answer is “no.”  In fact, I do not have a will myself.  I have no problem telling my clients that they don’t need a will because by doing so, I am saving them time and money.  Those young professionals that I have spoken to now have peace of mind knowing that they don’t need a will (for now).  The people that I am concerned about are the people that I have not spoken to because only an attorney (and an honest one) can tell you whether you need a will or not, and you don’t know until you speak to an attorney. 

One thing that I have done recently to make making a will easier for my clients is that I have purchased fantastic (and expensive) software that makes making a will quicker and easier than ever.  The thing that I love about having this software available to me is that if I meet with a young person today and make their will, once I enter the information into the computer, I do not have to enter that information again.  If that person wants to make changes, I can go to the section where the changes will be made, instead of going through the entire program again.  Because this process is faster, it is also cheaper for my clients.  I have the software downloaded on my computer and when I am finished I am able to go back to my office and review the document to make sure it meets my client’s needs.

National “Make a will” month is not necessarily about “making a will” in July but rather reminding all of us to review our will to make sure it will carry out our wishes, which may have changed since last updating.  It is also about reminding everyone to schedule a free consultation with an attorney that can review your personal situation and help you decide whether a will is right for you or whether some other estate planning tools will better fit your needs.  In the meantime, happy will making to you all.

Living Trusts as an Estate Planning tool

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A living trust is a trust that is funded with assets which can be amended and/or revoked by the settlor (creator).  A living trust can be used to handle financial affairs while alive and dispose of property after death.  As an attorney, many clients have shown an interest in living trusts because of the fact that they are an alternative to probate court.
 
Many financial planners and insurance agents (and even some attorneys) have cashed in on the phrase “avoiding probate court” by offering a trust to every client that walks through the door to discuss estate planning.  There is a lot of confusion about what “avoiding probate court” means and many people believe that it means “avoiding estate taxes.”  This is incorrect.  Avoiding probate does not mean avoiding taxes, but rather avoiding the process of probate.
 
The advantages to creating a living trust are that a living trust provides the settlor with greater privacy, lower court costs for the beneficiaries, lower attorney fees for the beneficiaries, lower appraisal fees, lower executor fees (as compared with trustee fees), living trusts often reduce the probability of litigation, and living trusts also offer almost immediate access to the assets after death.
 
The disadvantages to a living trust are that it is more expensive to create a living trust than a will, living trusts have higher annual expenses than a will, and living trusts require a lifetime of effort to manage and maintain until death.  In addition, living trusts do not protect assets from medicaid rules.

Transfer on Death and Probate

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I got into probate practice on accident.  It all started when I worked for my previous employer as a law clerk (after I had taken the bar but before I had received my results).  Our firm had received a telephone call from a client/investor.  Our client had an investment property and the person staying in the property had passed away.  Our client needed us to somehow get the property released from administration so that our client could re-rent the property without having to foreclose (actually, you have to open probate to foreclose but that is a long, complicated story.  He definitely did not want to foreclose if he could avoid it).

Since working on that case (and since receiving my license) I have worked on several similar cases, I have administered several estates and now my firm is expanding into estate planning.  A very common question that I am asked (usually from financial advisors) is about retirement accounts and probate.  People want to know the following: if they set up their retirement account to transfer on death to the designated beneficiaries, will the beneficiaries still have to pay “probate fees and taxes” on that money?

If a retirement account is set up to transfer on death, that money is still taken into consideration for federal and state estate tax purposes.  However, setting up the account so that it transfers on death, still keeps a considerable amount of money in the beneficiaries’ pockets.  Attorneys fees are generally calculated as a percentage of the probated and non-probated estate.  The percentage paid for non-probated property is much lower than for probated assets because the amount of legal work required to liquidate and distribute non-probated assets is much less.  In addition, the fiduciary of the estate gets paid according to a percentage of the probated and non-probated assets.  By keeping large accounts outside of probate, you are paying less to the attorneys and the fiduciary.

Transfer on death designations keep money in the family in other miscellaneous ways as well.  Less paperwork will be required for filing, which saves the family money because probate courts generally charge per page.  Also, if a bond is required, the bond will cost less.  Bonds are required to be secured for double the amount of the probated assets; the more in probated assets, the more the bond will cost.

Why Probate?

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I have never met a law student that left law school thinking, “I want to be a probate attorney!”  It just doesn’t happen.  Mainly because many other practice areas catch our eye before we even get to that subject in school but also because it just isn’t a “sexy” subject.

I got pulled into probate practice by chance.  When I worked for my previous employer, our firm represented investors and banks that owned property where the purchaser/occupant had passed away.  Our client wanted possession of their property back and although there were several ways of achieving this, all options included the participation of the probate court.

In one case, we were contacted by a real estate agent who had already found a buyer for a property where the owner had passed away.  We were able to get the property released from administration within two months and as a result, the sale was completed.  This is why I recommend that every real estate agent make a connection with a good probate attorney.  You never know when your next sale will depend upon being able to get the property released from administration so that you do not miss that sale.

One of the reasons that I like this area of the law is because the probate process was developed so that all people could maneuver the probate system in order to administer the estate of a loved one and wrap up their affairs without the help of an attorney.  No other practice area is this user-friendly.  I find that because it is more user-friendly than other areas, my clients are much more receptive to my advice and guidance.  Although probate is user-friendly, I would still recommend retaining an attorney in many cases, including cases were real property and motor vehicles need to be transferred or sold and cases where there are over $500,000 in assets.

After helping investors, real estate agents, and banks get back possession of their property, I continued practicing probate and as it turns out, I like it.  I have expanded my probate practice into creating trusts, administering estates, and some estate planning.

How to choose an attorney

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There are three people in your life that you should never lie to: your doctor, your dentist, and your attorney.  This morning, I heard someone say that these are the people that get lied to the most.  From my experience, this is probably true and it is not a constructive use of a lie.  These people are the three people that immediately know that you are lying and if we don’t know it immediately, we find out eventually.  The most important aspect to a healthy attorney-client relationship is trust.  Not only that the attorney trusts the client, but more importantly, that the client trusts the attorney.

An attorney can sense when a client does not trust him.  Not only by the things the client does, but also by the things the client says.  Don’t get me wrong, I have heard many horror stories about attorneys taking advantage of too-trusting clients, and I have respect for a healthy skepticism; however there is a difference between a healthy skepticism and distrust of the attorney.  There are several ways that you can find an attorney that you trust.  First of all, you should meet with more than one attorney.  The purpose of meeting with several attorneys is to make sure that the one you do pick, is knowledgable in the area of your matter.  Once you get a feeling for the type of discussion you should be having with your attorney, you will be more comfortable asking questions and will get more information based on your questions.  You should be able to find two or three attorneys that offer free consultations to accomplish this.

Meeting with several attorneys is also good advice because you can get a feel for the different personalities of the attorneys and you can pick one that suits your style best.  Another tactic that will help ensure that you find a trust-worthy attorney is to ask your friends and family members who they use for various personal legal problems.  Your friends and family members can likely tell you the strengths and weaknesses of the person they use and you can more easily evaluate whether that attorney is right for you.  A word of caution regarding this tactic however: you should follow your gut feeling.  Just because a friend or family member had good luck with a particular attorney does not mean that the attorney is particularly knowledgeable in the area of law that your matter is in.  You must meet with the attorney to find out what they know and more importantly, what they don’t know.

Do not hire an attorney that you do not trust.  You do not owe anyone an explanation regarding why you chose a particular attorney.  If you hire an attorney that you do not trust, you spend more time following up on matters, calling the attorney to ask questions so that you feel reassured, and generally worrying about whether the attorney is doing his job.  In the long run, this will cost you more time, money, & sleepless nights for the same or similar result.