Toledo-Ohio-Wills-Trusts-and-Estates-AttorneyWhen it comes to planning wills trusts and estates, many considerations come into play, including views on the ownership of property, the identity of beneficiaries, the identity of executors, trustees and guardians. Many people think that a simple will is what they want drafted for them, but once all of the information is evaluated by a Toledo Estate Planning Attorney, other planning documents are often times more appropriate.

Whether a basic will or a more complicated estate or asset protection plan is appropriate for you is a determination that should be made after having a wills, trusts, and estates Toledo Estate Planning Attorney evaluate your personal and financial information in order for you to receive proper advice and recommendations regarding your estate planning needs.

Wills.

Using a Last Will & Testament (Will) as your primary estate planning tool means that your estate will go through probate upon your death. It is important to note, however, that the only assets that must go through probate are assets that you own that are not in a living trust (more on living trusts later) and do not have a joint owner or a named beneficiary. Although the probate process is quite complicated and time-consuming for the executor, it is important to understand that the purpose of probate is to provide some measure of protection for your beneficiaries.

Trusts and Estates

A trust is a legal entity which is capable of owning financial assets, real estate, and/or other property. A testamentary trust is a trust created by the Probate Court pursuant to trust provisions written into your Last Will & Testament. A testamentary trust does not take effect until after your death and generally not until after your Executor has completed the initial phase of probate.

A living trust is a trust that you create while you are living. Using a living trust as your primary estate planning tool means that your estate will not go through probate upon your death. You create a living trust by signing a contractual document called a “Declaration of Trust.” You are typically the trustee of your own trust until your death. Upon your death, a successor trustee whom you have named takes over as trustee of the trust and, after paying any valid debts, expenses, and taxes, distributes the trust assets to or for the benefit of your named beneficiaries or, if called for in the trust, continues to hold the trust assets until the occurrence of a predetermined event. The main feature of a living trust is that the trustee is not accountable to the court, and therefore not subject to probate. Many people therefore use a living trust as their primary estate planning tool in order to make things easier for their trusted loved ones by avoiding the time and complications of probate. There may also be some advantages to you by using a living trust to consolidate your assets and simplify your finances. On the other hand, some people like the idea of court supervision and therefore prefer that their estate go through probate, and some people simply prefer not to spend the extra money it typically takes to create a living trust.

Many married couples use a Family Trust (and sometimes an additional Marital Trust – a trust that qualifies for the marital deduction but places some restriction on the surviving spouse’s use of the trust funds) in order to protect some of their estate for their children, guarding against the possible dissipation of the marital estate as the result of a surviving spouse becoming remarried and/or having additional children (whether through birth or adoption) and/or becoming a victim of fraud or deceit. To accomplish this, the surviving spouse’s rights to the principal of the Family Trust (and/or the Marital Trust) are written either to terminate or be reduced in the event the surviving spouse becomes remarried or has additional children.

Whether a basic will or a more complicated estate or asset protection plan is appropriate for you is a determination that should be made after having a wills, trusts, and estates attorney evaluate your personal and financial information in order for you to receive proper advice and recommendations regarding your estate planning needs.

Lucas-County-Ohio-Probate-AttorneyLucas County Ohio Probate Attorney

I am a Lucas County, Ohio; Wood County, Ohio; and Toledo Ohio Probate Attorney. To initiate the probate process, your named executor will have to make at least one appearance at the probate office to officially “qualify” and be “sworn in” as executor. Once qualified, your executor is accountable to the probate court and is required to prepare and file various legal and financial documents, including a detailed initial inventory of your estate and detailed annual accountings showing everything coming in to and going out of the estate. During the initial phase of probate, the executor must see to it that all your assets are accounted for and that any valid debts, expenses, and taxes are paid.

Probate.

There are limitations during this initial probate phase as to how much the executor may distribute as support to your spouse and/or minor children. After at least one year from your date of death (and often significantly longer), the Executor may distribute your remaining assets either:

(a) to the beneficiaries you have named;

(b) to the trustee named in your Will (if your Will has testamentary trust provisions, typically because your beneficiaries are under a specified age), to be held and administered according to the testamentary trust provisions set forth in your Will and subject to ongoing probate; or

(c) to the trustee named in your Living Trust (if you have a Living Trust) to be held outside of probate and administered according to the terms set forth in your Living Trust, free of any court supervision.

If your Will has provisions for the creation of a testamentary trust upon the conclusion of the initial phase of probate, then the testamentary trustee named in your Will is accountable to the probate court and, just like the executor, is required to prepare and file various legal and financial documents, including a detailed initial inventory of the trust and detailed accountings showing everything coming in to and going out of the trust every year.

During this second phase of probate, the trustee must see to it that all trust assets are accounted for and that any valid debts, expenses, and taxes are paid from the trust when due. Upon the occurrence of a predetermined event (typically a beneficiary reaching a specified age), the trustee may then terminate the trust by distributing all remaining assets to your named beneficiaries.

The executor is accountable to the probate court and is required to prepare and file various legal and financial documents, including a detailed initial inventory of your estate and detailed annual accountings showing everything coming in to and going out of the estate. The executor must see to it that all your assets are accounted for and that any valid debts, expenses, and taxes are paid.