Joint and Survivorship rights

Joint and survivorship property is property owned by two or more people, with a special feature: at the death of one of the co-owners, that interest passes to the surviving co-owner or co-owners.  For example, let’s say three people, X, Y and Z are joint owners of a piece of property with survivorship rights.  In this situation, X, Y and Z each own a 1/3 interest in the property.  If X were to die, her interest would pass to Y and Z:  Y and Z would then each own 1/2 of the property as joint tenants with rights of survivorship.  Ohio law requires that this special right in property be created in a specific way.
A useful feature of joint and …

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Certificate of Transfer

When a real estate owner dies without a will, the Probate Court must determine to whom that real estate passes according to the laws of intestate succession.  Once the court determines the appropriate person to take the real estate, it will issue a certificate of transfer.  This document basically operates as a deed to the property, transferring the interests of the decedent to the appropriate heir or heirs.  But this does not happen automatically, and the administrator of the estate must apply specifically to the court to distribute the real estate in an Application for Certificate of Transfer for Real Property.  This application must be submitted to the court after submitting the inventory of the deceased person’s assets, but before …

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What is per stirpes? What is per capita?

Ohio’s intestacy statutes identify who is entitled to take from a decedent’s estate, and in what proportion.  Several of these provisions include an obscure legal term: per stirpes.  Per stirpes (and its counterpart, per capita), often show up in wills, as well.
Per stirpes is latin for “by the branch” while per capita is latin for “by the head.”  Despite these terms’ obscurity, they bear heavily on the disposition of an individual’s assets.  They are very much worth understanding,  and are best illustrated by way of an example.
Per Stirpes Example:
Husband marries Wife.  Husband and Wife have two children, A and B.  A has two children, X and Y.  B has no children.
If A passes away, and Husband’s will left his assets …

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Who are my heirs?

Many clients seek our legal services to help them draft a last will and testament that disposes of their property after they pass away.  In some circumstances, however, we may recommend that the client not draft a will, and instead have the Probate Court dispose of the client’s property.  The reasons for this can be wide and varied, but most commonly involve an expectation that several disputes will arise after the client’s death regarding who is to receive the assets.  The Probate Court will become involved even if an individual had a will when the will did not entirely dispose of the deceased person’s property.
In either case, the client wants to know: if I don’t have a will, or if …

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Mineral Rights, Survivorship, and Probate

I am regularly surprised at how our estate planning practice overlaps with our oil and gas practice.   Lately I have helped a number of clients navigate the re-titling of an ancestor’s mineral interest by working through the probate courts.  When an individual dies, the probate court takes all of the real property titled in the deceased person’s name and determines the new owner.  The same is true of oil, gas, and mineral interests, as they are real property.
This process is fairly straightforward if the individual had a will that clearly stated where they wanted these interests to go.  Even so, the probate court must approve of the transfer.  This can be a lengthy process and is subject to court …

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Living Trusts

Many people mistakenly believe that they need to have a lot of money to benefit from a trust.  This couldn’t be further from the truth.  In fact, many benefits trusts provide don’t have anything to do with how much money someone has.  Trusts just make managing assets simpler, and operate a little differently than wills: the probate court ensures that an individual’s will is followed, but the probate court has little to say regarding trust enforcement.
Take a living trust, for instance.  Living trusts are created by a Settlor, for the benefit of named Beneficiaries, subject to the oversight of a Trustee.  Living trusts are revocable, which generally means they can be amended.  This makes living trusts an attractive vehicle to …

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Special Needs Trusts

Clients with disabilities or other special needs have a few options when it comes to creating trusts that can improve their life.  Oftentimes these individuals receive governmental benefits for their health and maintenance.  Typically, these programs first require that the individual spend their own money before expending any of the government’s.  In these situations, individuals with special needs who do have substantial money of their own can create a medicaid pay-back trust that allows them to enjoy the health and maintenance benefits of the government programs while using their own money for supplemental support.  Put simply, the beneficiary of such a trust can use the trust monies for things not covered by governmental assistance programs and still enjoy those program’s …

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Big Tax Changes for 2013

At year end Congress enacted the American Taxpayer Relief Act of 2012 (HR 8), which avoided a plunge over the so-called “fiscal cliff.” That supposed cataclysm would have resulted from a combination of the sunset of the Bush 2001 tax cuts and the automatic government spending cuts negotiated last summer in return for an extension of the federal debt ceiling. The 2001 law freed nearly half of American taxpayers from the need to pay income taxes (although not payroll taxes). Moreover, the law meant that over 30% of taxpayers, in addition to paying no income taxes, were receiving a transfer payment from Uncle Sam in the form of the Earned Income Tax Credit.  Failure to continue the Bush tax regime …

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The “Fiscal Cliff” and Estate Planning

Many of our clients want to know how the expiration of the Bush tax cuts will affect their estate plans. This event, the so-called “fiscal cliff,” can have far-reaching implications for certain wealthier individuals and calls for immediate, careful review of tax planning. At the time this article is written, estates valued less than $5.12 million are exempt from the 35% federal estate tax. However, if Congress takes no action by the end of this year, those numbers change significantly. The rate slated to take effect in 2013 increases to 55% for all estates valued at more than $1 million. It goes without saying that without action by Congress, there will be a significant increase in the number of individuals …

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Oil and Gas Valuations

It’s always surprising for us to see how our major practice areas come to overlap.  Oil and gas law doesn’t have an obvious nexus with estate planning and the probate process.  However, given that estate planning typically involves carefully allocating assets to maximize their utility for family or friends, it shouldn’t be a surprise that valuable oil and gas rights might enter that equation.
Nobody could have predicted the recent surge in oil and gas activity in Ohio.  That’s why many of our clients receiving oil and gas money come in for us to re-evaluate their estates.  How can oil and gas payments affect your estate?   Because mineral rights (which includes oil and gas rights) have recently seen an explosion in …

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