Gressel Law
Friday, January 08, 2010
 

FAQ

Frequently Asked Questions

 

Estate planning

Q. What is estate planning?

A. Estate planning is arranging your affairs so that your plans for your assets and your beneficiaries are carried out with the least possible cost and difficulty. 

Q. What is needed from the client to complete an estate plan?

A. The clients must have an understanding of what their assets are, and know who they want to receive those assets and who they want in charge of seeing that the plan is carried out.  If the clients have small children, they should also consider who would have authority over the children and the children’s money until they grow up.

Q. What does the lawyer do in estate planning?

A. The lawyer advises about how best to carry out the clients’ plan and then prepares the legal documents necessary to do so.

Q. What is “probate?”

A. “Probate” is the court supervised administration of the affairs of a deceased person. 

Q. What is the purpose of probate?

A.  Probate is intended to protect the heirs and be sure that the law and the intentions of the deceased person are followed.  It requires that information about the assets being probated be made available to close family members and to anyone named as a beneficiary of the Will, if there is one.

Q. That sounds good- why avoid it?

A. It is good. Probate Courts do wonderful work.  Reasons some people cite to avoid probate are time, privacy and cost.  Court procedures that are necessary for court supervision of the estate CAN take more time than might otherwise be required to settle an estate.  Documents filed with the Probate Court are for the most part public and will soon be available to the public on the Web.  Because of the additional work involved in complying with court rules and procedures, attorneys in Ohio at least normally charge MORE if assets pass through probate.

Q. How can a person avoid probate of his or her assets?

A. Today there are many ways to avoid probate.  Some are inexpensive to implement and easier to understand, such as “transfer on death” or “payable on death” designations, and joint bank accounts.  Others, such as trusts, are more complicated and normally more expensive.  The most important factor in choosing a method to avoid probate is whether it is safe for you during your lifetime.  You should not have to give up control of your assets during your life in order to avoid probate.  Consulting an experienced lawyer can protect you, and save your family time and money.

Q. Who needs a Will?

A. Anyone who is at least 18 years old and either already owns assets he or she cares about or could inherit such assets.

Q. Why? I want to avoid probate by using other ways to transfer assets at death, such as “POD” designations and survivorship deeds?

A. Because no one knows what he or she will own at death.  Any asset not provided for will pass under the statutes of the state in which you live at the time of your death.  This may not be a plan you would choose.  Also, managing an estate without a Will if there ARE such assets is more expensive and more difficult than handling the same assets with a Will.

Q. Are trusts only helpful for the rich?

A. No, quite ordinary people make good uses of trusts.  Parents of young children, especially if divorced, families with members who have mental or other disabilities, and older people with large families they want to benefit can often benefit from trusts regardless of the size of their estates.

 

Business…………………………………………

Q. I run my business in a corporation or a limited liability company.  Must I really use the entire legal name on my checks and other business paperwork?

A. Yes, please do not leave off the “Inc.,” “LLC,” or “Co.” in your business name.  One  reason small business owners use corporations and limited liability companies is to limit their personal liability to the extent possible.  But unless you make it clear to your customers and others dealing with you that you ARE a corporation or limited liability company, that protection can be lost.  A client recently lost this protection by using a “nickname’ he had chosen for his company on a project rather than the corporate name he spent good money to get. 

 

Q.  What is a “Statutory Agent?”

A. Corporations and limited liability companies must designate a person or a company to whom official papers- examples are notices of law suits and other legal notices- can be  sent.  This person or company is called  your business’s “statutory agent.”  By law, service on the statutory agent is service on your business. The State will not register your corporation or limited liability company if you do not name such a person or company.

Q. How important is it to keep the identity and address of my business’s statutory agent current?

A. Very!  If Ohio cannot find your agent, your right to do business as a corporation or llc will be cancelled, and you will lose much of the protection you paid for when you decided to do business that way.  Keep your records up to date. If you need help, call me or the Secretary of State for a form.

Q. How do you decide whether to do business as a “C” corporation, an “S” corporation or a limited liability company?

A. Several factors should be considered, and your accountant should be involved in the discussion.  Some of these factors are: how many owners there will be; how many employees there will be; whether the owners will need health insurance through the business; how large gross sales are likely to be; what sort of business it will be.  

 

Decedents’ Estates…………………………….

Q. What is “probate” of an estate?

A. “Probate” is the court supervised administration of the affairs of a deceased person. 

Q. What is the purpose of probate?

A.  Probate is intended to protect the heirs and be sure that the law and the intentions of the deceased person are followed.  It requires that information about the assets being probated be made available to close family members and to anyone named as a beneficiary of the Will, if there is one.

Q. That sounds good- why avoid it?

A. It is good. Probate Courts do wonderful work.  Reasons some people cite to avoid probate are time, privacy and cost.  Court procedures that are necessary for court supervision of the estate CAN take more time than might otherwise be required to settle an estate.  Documents filed with the Probate Court are for the most part public and will soon be available to the public on the Web.  Because of the additional work involved in complying with court rules and procedures, attorneys in Ohio at least normally charge MORE if assets pass through probate.

Q. How long does it take to settle the estate of a deceased person?

A. There is no way to predict how long estate settlement will take.  Some (but not all) factors that slow down the process are: hostile or uncooperative family members; large, complicated assets; being required to file an estate tax return.  The Ohio legislature wants most estates finished with six months of the appointment of the Executor or Administrator.  

 

Divorce…………………………………………..

Q. Why should divorcing parents review their Wills?

A.  A divorcing parent should think about who would control his children’s money if he dies.  If the money is left to a minor child through a Will, with no special provisions made, the money will be held in a court-supervised guardianship until the child is 18.

Q. Why is that bad?

A. It may not be.  But if your ex-spouse is the parent of the child, he or she will almost certainly be the guardian of the money.  That may be a problem for you.  Also, the money must be turned over to your child at age 18, which may also be a problem.

Q. What are the alternatives?

A. If in your Will you leave assets to children using the Ohio Transfers to Minors Act you get two benefits. First, you pick the person in charge of the money; second, you can delay the distribution of money to the child until age 21- which may be long enough to use it to get the child through college if that is your goal.

Q. What if age 21 isn’t old enough?

A. A trust is usually the only practical way to hold money for another person past age 21.

 

Attorney Specialist Certification……………..

Q. What is a certified attorney specialist?

A. All Ohio attorneys must have graduated from an accredited law school and passed an intensive examination. In addition, they must attend continuing legal education courses every year.

Some attorneys who devote a large part of their practice to a particular area of the law choose to go beyond these requirements to earn specialty certification.  Attorneys who wish to be “specialists” must also:

·        Prove that  a substantial, continuing, part of their practice is in the area of law they wish to specialize in;

·        pass a written examination in the specialty area;

·        submit references from other lawyers and judges in their community vouching for their competency in the specialty area;  

·        attend intermediate or advanced continuing legal education courses every year;

·        maintain high limit professional liability insurance coverage;

·        be re-certified every four to seven years;

·        report annually to the certifying agency.

 

Q. Who certified Michele Gressel  as a specialist? 

A. Michele Gressel is certified as a specialist in Ohio in Estate Planning, Probate and Trust Law by the Ohio State Bar