Randall M. Perla Legal Blog

Being an Executor or Administrator can be Overwhelming, You Don’t Need to Go it Alone

Administrator — Thu, 02 Feb 2012 18:25:59 +0000

For the executor or administrator of an estate, the probate process can be very confusing. There are a plethora of court forms, duties and responsibilities. To attempt to educate yourself can not only be a headache for the executor or administrator but can also cost the estate both time and money.

Beyond the required forms and deadlines, there are simple facts about estate administration that many executor and administrators are not aware of. For example, there are limits on creditor claims. See http://www.randallperla.com/blog/having-a-knowledgeable-probate-attorney-handle-your-loved-ones-estate-could-save-you-a-lot-of-money/ Moreover, if the estate has insufficient funds to distribute to heirs, there is a specific order in which all heirs must be paid. Money must be preserved in order to pay fiduciary fees, your compensation for all of your hard work. Failure to preserve these resources means you are cheating yourself out of your rightful compensation. You have a right to recoup estate expenses. In order to calculate fiduciary fees, you must have the correct values for all probate and non-probate assets. You must also have these values to determine whether Ohio estate tax is due as well. You must keep appropriate records and preferably conduct all estate transactions out of an estate checking account, as the Court will require a full accounting of all estate transactions.

Beyond the sampling above, probably the most important thing an executor or administrator of an estate needs to know but most unfortunately do not is that ATTORNEY FEES ARE PAID FROM THE ESTATE. I’m putting emphasis on this statement because sadly far too many people make the mistake of going it alone because they think that help will cost them out of pocket, when it does not. Most executors and administrator are grieving family members, not law professionals. However, the responsibilities and liabilities are the same. Do yourself a favor and consider hiring an estate administration attorney to guide you through the process.

Elizabeth L. Perla, Esq.

Law Offices of Randall M. Perla

19443 Lorain Road

Fairview Park, Ohio 44126

Phone (440) 333-2503

Fax (440) 333-9650

perlalaw@wowway.com

www.randallperla.com

Cleveland Estate Planning Attorney; Cleveland Last Will and Testament Attorney; Cleveland Financial Power of Attorney; Cleveland Health Care Power of Attorney; Cleveland Living Trust Attorney; Probate Administration; Probate Litigation; Trusts and Estates; Contested Trusts and Estates; Decedents Estates; Estate Administration; Estate Litigation; Estate Planning for the Elderly; Estate Planning for Unmarried Couples; Estate Settlements; Family Trusts; Fiduciary Law; Fiduciary Liability; Fiduciary Litigation; Financial Planning; Living Trusts; Personal Planning; Powers of Attorney; Trust Administration; Trust Law; Trust Litigation; Trust Planning; Adult Guardianship; Advance Directives; Conservatorship; Elder Guardianship; Guardianship; Guardianship Administration; Incompetency Proceedings.

Power of Attorney Abuse- What can be Done if my Parent’s Agent (Attorney in Fact) is Mismanaging her Funds?

Administrator — Thu, 02 Feb 2012 17:50:56 +0000

The scenario is all too common. One child is named the agent (attorney in fact) in Mom or Dad’s Power of Attorney, and uses it to make poor financial decisions on the parent’s behalf or worse, transfers assets into his own name. What can be done?

A power of attorney typically gives the agent (attorney in fact) the power to perform any financial transactions that the principal (the person giving the powers) can perform. That is, the agent can usually open and close bank accounts, withdraw funds, buy and sell stocks, etc.

However, this power is not absolute. The agent in confined by the terms of the power of attorney. For example, the agent cannot give him or herself gifts without express authority in the power of attorney. Hence, transferring any property into the agent’s name or establishing a beneficiary designation in the agent’s name would be considered a gift and would not be permitted absent express authority.

Moreover, an agent has certain fiduciary responsibilities. He must act with loyalty and honesty to the principal. So what can be done when the agent violates his duty of loyalty and honesty? If the principal is competent, then he or she has the right to revoke the power of attorney. Hence, a concerned party should speak to the principal to voice concerns and try to convince the principal to revoke the power of attorney and if necessary, appoint a trustworthy and responsible replacement. All financial institutions as well as the current agent should be notified of the revocation as soon as possible. If the principal is incompetent, a guardianship will need to be established in probate court so that another individual can be appointed to manage the principal’s affairs.

If assets were taken by the power of attorney, a guardian will have the power to recoup wrongfully taken assets through a probate procedure. Moreover, once the estate is opened for the principal, any person interested in the estate can file a complaint with probate court against the agent in order to have funds returned to the estate. Any self-dealing transactions conducted by an agent, like transferring property into the agent’s name, is presumptively invalid absent express authority in the power of attorney to make gifts to the agent.

Elizabeth L. Perla, Esq.

Law Offices of Randall M. Perla

19443 Lorain Road

Fairview Park, Ohio 44126

Phone (440) 333-2503

Fax (440) 333-9650

perlalaw@wowway.com

www.randallperla.com

Cleveland Attorney Randall M. Perla Recognized in Cleveland Magazine

Administrator — Mon, 09 Jan 2012 20:22:53 +0000

Cleveland Magazine’s January 2012 issue recognized Cleveland Attorney Randall M. Perla as one of Super Lawyers Top Attorneys in Ohio. Mr. Perla, a former Magistrate with the Cuyahoga County Court of Common Pleas, listed in Martindale-Hubbell’s Bar Register of Preeminent Lawyers, and AV-rated for 16 straight years, Randall M. Perla, joined by his associated Elizabeth L. Perla in 2007 has been providing clients with the highest quality representation for over 35 years.

Cleveland Family Law Attorneys; Cleveland Domestic Attorneys; Cleveland Grandparents Custody Rights Attorneys; Cleveland Child Custody Attorneys; Cleveland Visitation Rights Attorneys; Cleveland Grandparents Visitation Rights Attorneys; Domestic Relations; Divorce; Alimony; Marital Agreements; Marital Property Distribution; Marital Property Law; Marital Property Settlements; Matrimonial Law; No Fault Divorce; Qualified Domestic Relations Orders (QDROs); Restraining Orders; Uncontested Divorce; Cleveland Estate Planning Attorney; Cleveland Last Will and Testament Attorney; Cleveland Financial Power of Attorney; Cleveland Health Care Power of Attorney; Cleveland Living Trust Attorney; Probate Administration; Probate Litigation; Trusts and Estates; Contested Trusts and Estates; Decedents Estates; Estate Administration; Estate Litigation; Estate Planning for the Elderly; Estate Planning for Unmarried Couples; Estate Settlements; Family Trusts; Fiduciary Law; Fiduciary Liability; Fiduciary Litigation; Financial Planning; Living Trusts; Personal Planning; Powers of Attorney; Trust Administration; Trust Law; Trust Litigation; Trust Planning; Adult Guardianship; Advance Directives; Conservatorship; Elder Guardianship; Guardianship; Guardianship Administration; Incompetency Proceedings; Cleveland Child Support Attorneys; Cleveland Retroactive Child Support Attorneys; Domestic Relations; Family Law; Interstate Support; Paternity; Child Support; Fathers Rights; Juvenile Law

Cleveland Lawyer Randall M. Perla Named 2012 Ohio Super Lawyer

Administrator — Mon, 09 Jan 2012 20:03:32 +0000

Super Lawyers is a listing of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.

Attorneys are selected using a rigorous, multiphase rating process. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Peer nominations and evaluations are combined with third party research.

The objective of Super Lawyers is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel.

What Your Lawyer Didn’t Tell You about Your Living Trust

Administrator — Mon, 21 Nov 2011 20:01:30 +0000

A living trust, also known as a revocable trust or a family trust, is a trust you establish during your lifetime. Most people establish living trusts with several goals in mind, setting forth how they wish their assets to be distributed upon death and avoiding probate. What many attorneys forget to make clear to their clients, however, is that a Living Trust can only do its job if it is funded.

What does it mean to fund a trust? Funding is the process of transferring the ownership of your property or changing the beneficiary designations on your property into the name of your trust. Unless your trust owns your property, it cannot distribute your property to the people and organizations that you named in your trust. Failure to transfer your property into your trust during your lifetime may mean that the people you intend to have the property never get it. For example, beneficiary designations which are not changed to the name of the trust will allow the property to be distributed directly to the beneficiary named and will not be subject to your trust. Other assets which are not transferred to your trust during your lifetime may eventually be transferred to your trust upon death via a pour-over will that your attorney likely prepared for you, but the property will have to go through the delays and expense of the probate process, defeating one of the main reasons why you likely had a trust drafted for you in the first place.

You may be wondering at this point how you literally change the ownership of your property. First, you need to determine what the legal name of your trust is. It is usually written on the first page of your trust. Questions should be directed to the attorney who drafted your trust.

Different financial institutions will have different procedures. Some banks may try to charge a penalty or impose a loss of interest. You should inquire about these potential issues before the transfer.

If is also important to know when to change the ownership name and when to change the beneficiary designation of property. For example, with life insurance and annuities you will change the primary beneficiary to your trust. On the other hand, with stocks, bonds and other securities you will need to change the ownership into your trust. With IRAs and other deferred accounts, there is a debate about whether it is better to name the trust as primary beneficiary or secondary after a loved one. You should speak to a financial planner about which decision is best. However, never change the ownership of a tax deferred account to your trust as it may trigger serious tax consequences.

You may need to notify parties ahead of transfers. If you have a mortgage on your real estate, you should check with your mortgage company before you deed the property into your trust and notify your home owners insurance.

You may want to wait to transfer ownership to avoid additional costs. New license tags may be necessary for vehicles you transfer into your trust. Hence, you may want to wait to re-register your vehicle until your tags are due to expire.

Questions about funding your living trust should be directed to the attorney who drafted the document or another local attorney with estate planning knowledge.

Elizabeth L. Perla, Esq.

Law Offices of Randall M. Perla

19443 Lorain Road

Fairview Park, Ohio 44126

Phone (440) 333-2503

Fax (440) 333-9650

perlalaw@wowway.com

www.randallperla.com

4 Basic Estate Planning Documents that Everyone Should Consider

Administrator — Wed, 14 Sep 2011 19:55:15 +0000

Often people come to our office seeking a basic estate plan. While there is no such thing as one size fits all in estate planning, there are basic documents that everyone should consider.

Last Will and Testament-

As discussed in the previous post, http://www.randallperla.com/blog/the-4-major-pitfalls-of-not-having-a-will/ failing to execute a valid will has a number of draw backs. Wills give you the opportunity to set out who will inherit your estate. Without a valid Will, your estate will be distributed according to Ohio law rather than your wishes. A valid Will also gives you the opportunity to appoint someone you trust to administer your estate, called an Executor. Without this appointment, the court will appoint someone of the Court’s choosing instead, called an Administrator. There are a number of advantages of having an Executor rather than an Administrator. See http://www.randallperla.com/blog/the-4-major-pitfalls-of-not-having-a-will/ for more information. In addition, if you have children under the age of 18, a Will gives you the opportunity to appoint a guardian for your children. If you have children under the age of 18, please see http://www.randallperla.com/blog/the-basic-estate-plan-that-every-parent-should-have/ for issues to consider before drafting an estate plan.

A Will can be as simple or complicated as you wish. Many people simply want to give everything they own to their spouse, or if their spouse predeceases them, their children. But this does not have to be the case. You can establish a testamentary trust, for instance, where an inheritance will be kept in trust for your children until they turn a specific age. For example, 50% when your son turns age 25 and 50% when your son turns age 30. This is typically done if you have concerns over your child’s ability to handle money responsibly. A Will can also list specific items that you want given to different people. For example, my antique gold watch to my son and my diamond engagement ring to my daughter. The language of a Will can be drafted to suit your particular needs. It is important to know, however, that a Will only governs probate property. For example, a bank account with a POD or a joint account will be distributed based upon the POD designation or to the other joint owner automatically upon death, not according to a Will. See http://www.randallperla.com/blog/what-is-probate-property-and-why-do-i-need-it-for-my-will-to-operate/ for more information.

Durable Financial Power of Attorney

A Financial Power of Attorney gives an individual of your choice the authority to make financial decisions and perform transactions on your behalf. A Durable Financial Power of Attorney stays in effect in the event of your incapacity. You should consider executing a Durable Financial Power of Attorney if you have difficulty managing your own affairs, due to a health condition or aging or you anticipate having difficulty in the near future. The Power of Attorney can go into effect immediately or it can be a Springing Power of Attorney, which “springs” into effect upon the occurrence of a chosen event. This can be your incapacity as certified by physicians or particular family members or friends, or another triggering event of your choice. Failure to execute a Durable Financial Power of Attorney could necessitate the need for a guardianship. A guardianship is a lengthy proceeding in Probate Court that, if possible, is best avoided.

Health Care Power of Attorney

Much like the Durable Financial Power of Attorney mentioned above, a Health Care Power of Attorney gives a person of your choice the authority to make health care decisions for you. However, unlike the Durable Power of Attorney which can go into effect immediately, the Health Care Power of Attorney only goes into effect if you are unable to make decisions for yourself, because you have become incapacitated or are in surgery, etc. You should consider executing a Health Care Power of Attorney if you have significant health problems, are elderly or anticipate having any kind of a serious medical procedure. A Health Care Power of Attorney can also give you the opportunity to make your wishes known concerning end of life decisions. Failure to execute a Health Care Power of Attorney could necessitate the need for a guardianship. As stated, a guardianship is a lengthy proceeding in Probate Court that, if possible, is best avoided.

Living Trust

A living trust is a revocable trust, meaning that you retain control over the trust and all the trust assets during your lifetime. You can terminate or change the trust at any time, including moving assets in and out of the trust. A living trust has a number of benefits. First and foremost, it can help your heirs by eliminating the expense and time of probate. It also allows you to consolidate and manage your assets in one coherent bundle. Moreover, if you wish to control the distribution of your assets after death, it is an essential tool. For example, you can delay distribution to a child if you are concerned over his ability to manage money responsibly or if he is simply too young to receive a lump sum. You can also leave distributions of trust assets up to the judgment of a trusted person called a Trustee if you are unsure what the needs of your beneficiaries will be in the future, if you are concerned over potential creditors of a beneficiary or a greedy spouse of a beneficiary, for example. The terms of a Trust can be drafted to suit your particular needs.

For more information on Last Will and Testament, Financial Power of Attorney, Health Care Power of Attorney, Living Trust or Estate Planning in general, seek out an Estate Planning Attorney.

Elizabeth L. Perla, Esq.

Law Offices of Randall M. Perla

19443 Lorain Road

Fairview Park, Ohio 44126

Phone (440) 333-2503

Fax (440) 333-9650

perlalaw@wowway.com

www.randallperla.com

How Do I Change My Child’s Name?

Administrator — Tue, 13 Sep 2011 17:20:26 +0000

There are a number of reasons why a parent may what to change her child’s name. The most common situation that I have seen is that either a father has or has not been involved in the child’s life, and for that reason the mother wishes to change the child’s last name.

In order to change your child’s name, an application would need to be filed with the Probate Court in the county that the child has resided in for at least one year. On the application, the applicant will have to state the reasons for the requested name change and the requested name. Notice of the application will have to be given to the non-consenting parent and a hearing would be scheduled before a Court Magistrate.

The standard the Court would be applying in reviewing the application is reasonable and proper cause for the name change. In determining whether there is a reasonable and proper cause for the name change, the Court would have to consider the best interest of the child. When considering whether to change the child’s last name, the Court will take into consideration the following factors:

the effect of the change on the preservation and development of the child’s relationship with each parent;
the identification of the child as part of a family unit;
the length of time that the child has used a surname;
the preference of the child if the child is of sufficient maturity to express a meaningful preference;
whether the child’s surname is different from the surname of the child’s residential parent;
the embarrassment, discomfort, or inconvenience that can result when a child bears a surname different from the residential parent’s;
parental failure to maintain contact with and support of the child;
and any other factor relevant to the child’s best interest.

If you have questions regarding applying for a child’s name change or having representation in the proceedings, seek out a probate lawyer.

Elizabeth L. Perla, Esq.

Law Offices of Randall M. Perla

Cleveland Probate Attorneys

19443 Lorain Road

Fairview Park, Ohio 44126

Phone (440) 333-2503

Fax (440) 333-9650

perlalaw@wowway.com

www.randallperla.com

Retroactive Child Support and Pregnancy and Confinement (Postpartum) Costs- When are they available?

Administrator — Mon, 12 Sep 2011 19:43:50 +0000

When is child support owed?

Parents are responsible for supporting their children. However, until a child support order is established by CSEA, the Child Support Enforcement Agency, or the Court, there is no way to enforce that obligation. If you are the residential parent of a child and you wish to have the other parent support your child, you need to establish an order. An order can be established through CSEA or through the Court. If you establish child support through CSEA, the Child Support Enforcement Agency, then child support will commence at the time the Order is goes into effect. If you establish child support through Court, then child support will commence at the time of filing.

How can I receive retroactive child support?

Often residential parents would like the other parent to pay support prior to the issuance of the Child Support Order. Retroactive child support is available with several exceptions. First, retroactive child support must be requested at the time paternity is established. If paternity and child support are established through CSEA, the residential parent must object to the child support order with juvenile court in order to request retroactive support. Moreover, retroactive child support is not available if at the time it is requested, the child is over three years of age and the father had no knowledge and had no reason to have knowledge of his paternity prior to the filing of the action. In order to show knowledge of paternity, the Mother must be able to show that she made a reasonable effort to contact and notify the father of his paternity.

How can I receive my pregnancy and confinement (postpartum) costs from the child’s father?

The same rules that apply to retroactive child support apply to pregnancy and confinement (postpartum) costs. First, the costs must be requested at the time paternity is established. If paternity and child support are established through CSEA, the residential parent must object to the child support order with juvenile court in order to request the costs. Moreover, pregnancy and confinement (postpartum) costs are not available if at the time it is requested, the child is over three years of age and the father had no knowledge and had no reason to have knowledge of his paternity prior to the filing of the action. In order to show knowledge of paternity, the Mother must be able to show that she made a reasonable effort to contact and notify the father of his paternity.

For more information on establishing a Child Support Order,establishing Paternity, requesting retroactive Child Support or pregnancy and confinement (postpartum) costs, consult with a Child Support Attorney.

Elizabeth L. Perla, Esq.

Law Offices of Randall M. Perla

19443 Lorain Road

Fairview Park, Ohio 44126

Phone (440) 333-2503

Fax (440) 333-9650

perlalaw@wowway.com

www.randallperla.com

Cleveland Child Support Attorneys; Cleveland Retroactive Child Support Attorneys; Domestic Relations; Family Law; Interstate Support; Paternity; Child Support; Fathers Rights; Juvenile Law

Lessons for Trustees and Beneficiaries Part IV- Fiduciary Duties

Administrator — Wed, 07 Sep 2011 19:42:16 +0000

Fiduciary duties are duties owed by a Trustee to the Beneficiaries of a Trust. One of those duties is the duty of Impartiality. Impartiality means that if a Trust has two or more beneficiaries, the Trustee has a duty to treat all beneficiaries fairly. Fairly does not necessarily mean equally; It all depends on the terms of the Trust. The terms of a Trust can state that one beneficiary should be favored over another. For example, when the beneficiaries of a Trust are a spouse and children, the spouse is often favored during her lifetime. If that is the case, then the Trustee must follow the terms of the Trust and favor the spouse during her lifetime. The takeaway is that all beneficiaries must be treated fairly within the terms of the Trust.

Another fiduciary duty is the duty of loyalty. A Trustee must put the interests of the Beneficiaries above his own. Any transaction that the Trustee engages in that involves the Trustee’s own personal account or personal interests and Trust assets in voidable by a Beneficiary unless it fits into a particular exception. Exceptions include if the transaction was authorized by the Trust, approved by the Court, the Beneficiary provided informed consent, or the transaction was entered into before the Trustee became a Trustee. A conflict is presumed if the transaction involves the Trustee’s spouse, children, siblings, parent, attorney, etc. A Trustee cannot steal a business opportunity belonging to the Trust.

Whether you are a Trustee or Beneficiary, lack of knowledge of your responsibilities or rights can be costly. Consider consulting a trust administration attorney for guidance.

To read Part I of this series on What is a Trust and Who Has to Know About it see http://www.randallperla.com/blog/lessons-for-trustees-and-beneficiaries-part-i-what-is-a-trust-and-who-has-to-know-about-it/

To read Part II of this series on Safeguarding Trust Property see http://www.randallperla.com/blog/lessons-for-trustees-and-beneficiaries-part-ii-safeguarding-trust-property/

To read Part III of this series on Investing Trust Assets see http://www.randallperla.com/blog/lessons-for-trustees-and-beneficiaries-part-iii-%e2%80%93-investing-trust-assets/

Elizabeth L. Perla, Esq.

Law Offices of Randall M. Perla

19443 Lorain Road

Fairview Park, Ohio 44126

Phone (440) 333-2503

Fax (440) 333-9650

perlalaw@wowway.com

www.randallperla.com

Cleveland Trust Administration Attorneys; Cleveland Beneficiary Attorneys; Cleveland Trustee Attorneys; Cleveland Probate Attorneys; Cleveland Fiduciary Attorneys; Cleveland Estate Planning Attorney; Cleveland Last Will and Testament Attorney; Cleveland Financial Power of Attorney; Cleveland Health Care Power of Attorney; Cleveland Living Trust Attorney; Probate Administration; Probate Litigation; Trusts and Estates; Contested Trusts and Estates; Decedents Estates; Estate Administration; Estate Litigation; Estate Planning for the Elderly; Estate Planning for Unmarried Couples; Estate Settlements; Family Trusts; Fiduciary Law; Fiduciary Liability; Fiduciary Litigation; Financial Planning; Living Trusts; Personal Planning; Powers of Attorney; Trust Administration; Trust Law; Trust Litigation; Trust Planning;

What is an Advancement and How Does it Work?

Administrator — Wed, 07 Sep 2011 18:22:40 +0000

An advancement is a gift given during life to a future heir with the intent that the gift be treated as part of the heir’s inheritance. For example, a Mother has a Last Will and Testament stating that $50,000 will go to her daughter and $50,000 will go to her son. While living, Mother gives a $20,000 advancement to her son. Upon Mother’s death, the son will receive $30,000 and the daughter will receive $50,000. As the son received $20,000 of his inheritance during life, he will receive $20,000 less upon his Mother’s death.

An advancement is only effective if it is declared in a contemporaneous writing by the decedent or an acknowledgement in writing by the heir receiving the advancement. Moreover, property advanced is valued as of the time the heir comes into possession of the property. So, to use our example from before, if instead of $20,000 in cash, Mother advanced a car to her son in 2003 when it was valued at $20,000, and then Mother passed away in 2011 when the car was valued at $10,000, the son would still receive $30,000. As stated, it is the value of the property at the time of the gift that matters and not the value of the gift at Mother’s death.

However, if an heir who received an advancement predeceases, the property will not be considered an advancement against the share of the heir’s children, unless the declaration or acknowledgement says so. So, going back to our example, if the son predeceased his Mother, and left living children, his children would be entitled to the full $50,000 stated in Mother’s Last Will and Testament unless the language of the advancement declaration or acknowledgement said otherwise.

For more information on advancements, seek the assistance of legal counsel experienced in probate matters.

Elizabeth L. Perla, Esq.

Law Offices of Randall M. Perla

19443 Lorain Road

Fairview Park, Ohio 44126

Phone (440) 333-2503

Fax (440) 333-9650

perlalaw@wowway.com

www.randallperla.com

Cleveland Probate Attorneys; Cleveland Estate Administration Attorneys; Cleveland Last Will and Testament Attorneys; Cleveland Estate Planning Attorneys; Estate Planning; Probate; Wills; Probate Administration; Probate Litigation; International Probate; Ancillary Probate; Trusts and Estates; Contested Trusts and Estates; Decedents Estates; Estate Administration; Estate Bankruptcy; Estate Litigation; Estate Planning for the Elderly; Estate Planning for Unmarried Couples; Estate Settlements; Family Trusts; Fiduciary Law; Fiduciary Liability; Fiduciary Litigation; Financial Planning; Living Trusts; Personal Planning; Trust Administration; Trust Law; Trust Litigation; Trust Planning.