Being an Executor or Administrator can be Overwhelming, You Don’t Need to Go it Alone
February 2, 2012
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
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?
February 2, 2012
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
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 Attorney Randall M. Perla Recognized in Cleveland Magazine
January 9, 2012
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
January 9, 2012
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.
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
What Your Lawyer Didn’t Tell You about Your Living Trust
November 21, 2011
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
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.
