we were told the beneficiery has to pay 20% of the life insurance policy once the policy holder passes
I am not sure why you were told this. Here is what could happen in Ohio. If there is a beneficiary named on the life insurance policy, the proceeds don't have to go through probate. The insurance company will distribute the proceeds directly to the beneficiary. If the estate is large enough to require a federal estate tax return (over 3.5 million for deaths in 2009, including the life insurance), then it is possible that the beneficiary may have to contribute to the estate taxes. If the estate is large enough to require an Ohio estate tax return (over $338,333 in 2009, not including the life insurance), then the life insurance proceeds are not part of the taxable estate and should not ever be subject to Ohio estate taxes.
If there is no beneficary on the life insurance policy, then the policy has to be probated and the proceeds become subject to the Ohio estate tax. In that case, there may be some estate taxes due from the proceeds.
In either case, the tax payment provisions of the Will have a bearing on who has to contribute to estate taxes. The proceeds are not income taxable to the beneficiary, so would never be reportable on your 1040.See question
My stepmother passed in 2006.Both my son and I are in the will.but the executrix will not probate the will. she has taken all the assets ,bank accts,safety deposit box contents,she will not let me in the house to get anything of my late fathers.I ...
I agree with the previous answer. The Ohio statute indicates that the Will "must" be filed when someone dies, and the court can force that.
Additionally, once the Will is probated, if it is the one that took you and your son out of the Will, you can contest the validity of the Will that is filed. If successful in proving that she was not competent or she was unduly influenced at the time of the signing of the new Will, that will is thrown out and the older will (with you in it) is probated.
All of this would require you to hire a Probate attorney to undertake the filings and subsequent litigation.See question
The house is in a living trust with my mother's, father's, and my name in the document. My mother died in February and my father has Alzheimer's. I cannot locate the paperwork at this time. When his money runs out and he goes on Medicare, will ...
I do practice Medicaid planning in Ohio. As previously noted, Medicaid planning is very complicated. Here are some general answers, but without meeting in person, I cannot tell you this will work in YOUR case.
Generally, if a person in in a nursing home and the cash and other assets are reduced to below $1500, the house needs to be liquidated. However, if the house was your father's personal residence prior to entering the nursing home, the house can be exempted for 13 months and Medicaid obtained once the rest of the money is gone. However, if the house is owned in a living trust, the exemption will not work. The house has to be transferred out of the trust back to your father's name alone for the exemption to be allowed.
Then, once Medicaid is allowed because the money is gone and the house is exempted, after 13 months the house has to be sold. Once the sale proceeds are received by your father, he will lose his Medicaid because his assets now exceed $1500. At that point, there are various options. For example, repay the sale proceeds to Medicaid and continue benefits or undertake some even more complicated planning to try to protect some of the proceeds. I would have to actually meet with you to flesh out the options.
It is very important to get good legal advice from a Medicaid planning/Elder law attorney. I would be happy to assist if you wish.See question
Does one of the witnesses have to be a notary? Can I file it myself? Will it be recognized as a legal document? I can no longer afford an attorney to make these changes.
Changes made within the body of a Will are NOT effective. The only way to change to a Will is to sign a documents called a Codicil or sign a new Will. If you do a Codicil, it must be signed with the same formality as the Will was signed. Those formalities vary from state to state. For example, in Ohio, the Will must be signed and dated at the end, witnessed by two competent adults who sign as witnesses and place their addresses at the end after the signing. Some state require three witnesses. Some state require a notary. Some states require a "self-attestation clause" at the end. Sometimes the witness can be the notary, and sometimes not. If you fail to sign the Codicil correctly, it will be invalid. Maybe you can't afford NOT to hire an attorney.
Do not rely on an internet form that promises "good in all states." That is likely untrue. If you want to proceed without an attorney, be sure you know for sure the state laws for signing the Will or Codicil and follow the rules. Good Luck!See question
I am the oldest sibling, no spouse to the deceased, no beneficiary named and no will. I am in the state of TN. There are six kids, including myself. Does the insurance contact us, the funeral home so that a death certificate is produced? Is a ch...
When a person dies without a Will, normally the state in which he resides has written a will for them in the Probate statutes. That will direct where any money is left. Normally, when a person dies without a spouse, the children equally are the beneficiaries. With life insurance, the policy most often has a beneficiary designated that overrides a will or the statute.
When there is no beneficiary named, the life insurance proceeds normally become a probate asset that must be admininstered through the Probate court in the county in which the deceased resided. Each state and county has different probate laws, and you need to find out the rules where the decedent lived. Depending on the size of the policy and the state law, a probate estate may or may not need to be started. Some states have "summary" or shortened provisions that allow assets to be distributed without an official estate opened.
What would routinely be needed is a Probate estate opened and one of the children named as the Administrator of the Estate. Then, the Administrator can contact the life insurance company to obtain the paperwork needed to cash in the policy. Some court forms, some life insurance company forms and a certified death certificate are usually needed to receive the proceed.
The funeral home normally will obtain and provide you with the death certificate. The insurance company will not know the person died. You need to call the life insurance company now just to touch base and find out what they will need. They may not give you much information about the actual policy if you are not the named beneficiary. Often, you need the court appointment in order to get actual information. Also, don't be surprised if the insurance company wants to open an account that they keep and issue checks that allow you to use the money, rather than issue a check. They just don't want to see the money leave their accounts. Hopefully, you can process the life insurance proceeds without an attorney. If you run into problems, be sure to contact a Probate attorney to solve them (especially tax issues). It isn't worth it to try to solve some problems yourself.
Good Luck!See question
Man is 48, no children, not married, both parents deceased. He has cousins and uncles, aunts. If he passes , where does balance of estate go. Does it go through probate , dispersed to nearest relatives, or state of Virginia.
The rightful heirs to the assets are set forth in the state's Probate statute, in Ohio called the Statute of Descent and Distribution. The statute will set forth the order in which the closest blood heirs would inherit. For example, in Ohio, the order is: Surviving spouse, children equally or other lineal descendants (grandkid's), parents equally, 1/2 to the heirs of each parent (siblings, then nieces/nephews), then if none, to parents' siblings or their children, and so on. If there are are absolutely no blood relatives, then the money would go to the state. You need to check the state of residence to verify the order of inheritance.See question
I have been having troubles contacting my dad this last year. My sister finally called me in January to tell me he is in the hospital and now a home.I have went down there twice to see him.His condition is improving and I have now found out that m...
Your situation is very hard. As power of attorney, your father has granted her authority to take care of his affairs. If she has a Financial Power of Attorney, she can handle his financial affairs the same way he could. She could even take all of his assets for herself. If she has Medical Power of Attorney, she has the right to make his Medical decisions for him when he can no longer do so. Neither one would prevent him from handling his own affairs while he is able or preventing you from visiting to investigate. She cannot force him to keep her as power of attorney and she cannot force him to live where SHE wants if HE doesn't want to. At any time he can revoke her authority and name someone else.
Until he does that though, she has the power to take care of his affairs. The only way to trump the Powers of Attorney is to go to court to have him declared incompetent and be appointed his Guardian. Each state's laws are a bit different. Generally, you have to be a resident of the state and county in which he resides. A doctor must certify that he is no longer competent. An action is filed in the county Probate Court where he resides, asking for you to become his guardian. The court must evaluate the doctor's evaluation and determine if you are the appropriate person to be guardian. Your sister or father could contest the apppointment, and it can turn into a court case fighting about it. The court will not appoint a guardian if your father is competent and does not need a guardianship.
Instead of a guardianship. you can call the county department of Adult Protective Services and report the potential of financial, physical, emotional or other abuse of your father. They will investigate the situation and assist him if needed.
Unless your father is incompetent and you become his guardian or he removes your sister as power of attorney and appoints you instead, you don't have a lot of rights. I would really try to talk to your father and find out what is really going on so that you can take the appropriate steps. Good Luck!See question
My husband and I are cartakers of my grandmother who is 81 years old. Currently we live with her, and have been told we may have the home after she passes on. Our concern is that if she happens to go into a nursing home or hospital, what will ha...
You and your husband will receive the home as long as your grandmother left it to you in her will, or has titled the house in such a way that it will pass to you without probate. Medicare or supplemental insurance will only pay up to 100 days in a nursing home if she is in the hospital for at least 3 days and is discharged to the nursing home for rehabilitation. After that, either she has to pay privately or needs to qualify for Medicaid. She can't have more than $1500 to $2000 in assets (depending upon the state) in order to obtain benefits. As a result, the house may have to be sold to reduce her assets to the appropriate level.
As an alternative, check the Medicaid rules in your state to see what may be available to protect part or all of the value of the house. For example, if her money is gone, but the house hasn't been sold yet, she may be able to quality for Medicaid for a period of time even while she owns the house. In Ohio, that time is 13 months. After the protected time period, the house would have to be sold. However, at that time, you may be able to purchase the house at a discount or at least undertake some Medicaid planning in order to protect some portion of the sale proceeds.
Also, you may be entitled to keep the house as a caregiver who cared for her for a period of time. In Ohio, a caregiver child who moves in to the Medicaid recipient's home and cares for them for at least two full years prior to them entering the nursing home when they SHOULD have been in, is entitled to have the house transferred to them free and clear. Although the regulations in Ohio do not provide for a grandchild caregiver, your state may.
You may wish to contact an Elder Law attorney for more specific advice. Good Luck!See question
My step grand-daughter has lost both parents in the past 3 years. She is only 14 yrs. old she has two 1/2 brothers one is 28 the other in his 30s. A step sister who is 18. Will the state determine who should take her in their home or does the Stat...
The general procedure is that the Probate Court of the county in which the child resides is the entity that will determine the guardian who is appropriate to take care of the child. Normally, the proposed guardian must be an adult, competent and suitable to serve and live in the same state, often the same county. If the parents named a guardian in their will, then that person will be given priority, but is not necessarily a shoe-in. Often, who ever applies to become the guardian is the one appointed if the court deems them appropriate. If there is a fight between parties who want to become the guardian, the court will make the final determination after a hearing. Many times the court prefers a third party to serve as guardian if the family members cannot decide. The court would rather a family member come forward and apply to become guardian. However, if needed, the court will order the child into the state's custody until a final plan can be determined. She can end up in foster care if no one in the family will agree to become guardian or the court doesn't have any other suitable and appropriate prospect to serve.See question
Can an 18 year old college student who is still claimed as a dependent on her parents tax return and who files a tax return, gift up to $12,000 to each of her parents in 2008 to her parents pay for living expenses with paying any gift tax?
Under federal law, each adult person can make a gift up to $12,000 (up to $13,000 in 2009) per person per year without incurring any gift tax consequence and even without filing a gift tax return. It has nothing to do with income taxes or dependents. The recipient of the gift never has to pay any gift or income taxes. Just be sure everything is documented as a gift so that it is not construed as a payment or reimbursement for the living expenses.
In addition, you can gift up to One Million Dollars without any gift tax to pay. You just have to file a Gift tax Return, form 709 to show the gift. Everyone has a One Million Dollar exclusion from paying Gift Taxes. So, the return is filed showing the gift and using the exclusion so no taxes have to be paid. The recipient of the gift, even a large one, never has to pay any gift or income taxes.See question