Estate planning: Not just a will and a trust

One of the most important things you can do is prepare for your future, which includes planning for a time when you may become incapacitated or for after your death. You want to ensure your estate is

handled in the way you wish and not by someone else’s wishes. What can you do other than prepare a will and create a trust?

Powers of Attorney are a great tool for individuals of any age, not just the elderly. At any point in life that you become incapacitated or unable to act on your own behalf, you want to make sure someone you trust has the ability to handle your affairs. Creating a general power of attorney allows a person of your choosing to enter into legally-binding matters on your behalf. This can include entering a contract for sale, signing your check in order to pay bills, or contact a financial institution to obtain information. Giving someone a health care power of attorney allows someone to access your medical records or to authorize medical treatment if you should be unable to do so.

A living will is different from a health care power of attorney because the living will lists your wishes for end-of-life treatment. While no one can authorize the termination of comfort care, including pain treatment, you can authorize someone to “pull the plug” at a time that doctors make a determination regarding the viability of your life.

Another document that can simplify your estate after your death is a “transfer on death affidavit.” You can do this on a house or a vehicle, and it puts the title into someone else’s name immediately on your death. Filing this affidavit can prevent creditors from being paid as a result of the sale of your house or car. This affidavit also lets the individual immediately take possession of the property, rather than needing to apply to receive the title.

Finally, naming beneficiaries on bank accounts, 401(k) accounts, life insurance policies, and investments will prevent creditors from having access to this money. Upon your death, the person you have named as beneficiary will immediately be entitled to the money, and this will not become part of the probate

Estate planning can be a lot of work, but it saves a lot of headache after your death. Contact Dailey LawOffices to set up your free initial consultation in either our Delaware or our Hilliard office.

Why wait 6 months to open a probate estate?

When a loved one dies, there are many things to think about and take care of, including probating that person’s estate. The probate process is often seen as a daunting and tedious task, but with the help of an attorney, it can be done with relative ease.

Most people want to hurry the probate process and take care of everything as soon as possible after the decedent’s death. In all reality, however, it may be wise to wait six months before opening the estate.

In Ohio, creditors of an estate have six months to present their claims to the court. At the end of that six month period, only those creditors who have filed claims are entitled to payment. Even if the family thinks there are many creditors of the estate, if only one of those creditors files a claim, that is the only claim that will need to be paid. Waiting the six-month period allows for more clarity and assurance when going through the probate process. This also helps prevent re-opening a closed estate or surprises that may arise during the process.

To discuss your probate matter, contact Dailey Law Offices to help understand the process better. We have office locations in both Hilliard and Delaware, and we offer a free initial consultation.

The effect of divorce on a guardianship for children not born of the marriage

A couple achieves guardianship over children not born to them during the marriage. The couple decides to divorce. How does that affect the guardianship of the children?

While any guardianship matter will be controlled by the guardianship agreement itself, many times the agreements are silent on what happens in divorce. Even if the guardians divorce, this is a separate process that does not affect the guardianship. Both parties will continue to serve as guardians of the children, and any changes will need to be made through the court that granted the guardianship, not as part of the divorce.

There are many considerations in trying to get a guardianship modified. There will likely be a hearing on the matter, and the biological parents may need to be notified. The guardianship court will always need to consider the best interests of the child or children involved.

Opening a guardianship case is something that is best done with the assistance of an attorney. Contact Dailey Law Offices to set up a free initial consultation in either our Hilliard or Delaware office today!

Full Estate Administration vs. Release from Administration

When a loved one dies, it’s hard on the entire family. Dealing with funeral arrangements and entertaining distant friends and acquaintances takes a toll on spouses and children of the deceased. Taking care of the deceased’s property and affairs can be confusing and add stress to this situation. What are the options available to you if a loved one passes away?

In Ohio there are two basic avenues to open a probate estate and wrap up the deceased person’s affairs. The first option is to do a Release from Administration. This is appropriate in situations where the fair market value of the probate assets is $35,000 or less and there is no surviving spouse, or if there is a surviving spouse and the gross estate is $100,000 or less. If there is a surviving spouse and they are entitled to 100% of the family allowance provided by statute, the spouse has paid or is obligated in writing to pay for funeral expenses, and the gross probate estate does not exceed $45,000 the estate may qualify for a summary release from administration. This is an abbreviated version of the release from administration. The release process can be much quicker than a full estate administration, but the timeliest part of the process is ensuring all creditors have come forward and their information is known.

If the deceased’s estate does not qualify for a release from administration, a full estate administration will be required. In this situation, the estate will be divided into probate and non-probate assets. If there is a will and an executor is named, that person will be responsible for contacting an attorney and handling any matter arising during the probate process. If there is no will or no executor has been named, the court will appoint an administrator to fill this role. The main goal of the full estate process is to distribute property according to the decedent’s wishes or to apply the state statutes of descent and distribution to effectively release all property held by the decedent.

The probate process can be cumbersome and confusing for those not familiar with Ohio law and the probate system. It is important to contact an attorney you trust to help you through this process as efficiently and smoothly as possible. At Dailey Law Offices, we offer free initial consultations and can talk through your individual situation. Contact us today to schedule your appointment at our Hilliard or Delaware office.

Forensic Accounting

Divorce is never a pleasant process – it involves a lot of emotion and a struggle to reach compromises. Many times, these heightened emotions and an increased stress level can lead to disagreements and mistrust when it comes to the family’s finances.

Often times during a divorce process, there is a spouse who is less-aware of the family’s financial situation than the other one. In these types of cases, it can be easy for the dominant spouse to manipulate the finances in a way that benefits him or herself to the detriment of the other spouse. It can be hard to know exactly what finances are available to be split during the divorce.

Divorce attorneys are increasingly relying on forensic accountants to help obtain a reasonable and accurate value of money coming in and going out of the household. Forensic accountants, typically CPAs, are able to use their expertise to investigate into the standard of living the family has, and to determine the disposable income and any hidden assets that a spouse may have. Forensic accountants can also differentiate between separate property and marital property that should be divided during the divorce.

Often times, a spouse that owns a closely-held business can attempt to defer income or hide assets away in the business, and a forensic accountant can evaluate the business to uncover any potential fraud in order to make the separation fair.

Depending on the situation, forensic accountants can be covered by the attorney-client privilege that exists between the attorney and their client, though this is not always the case. If you think you are in a situation where a forensic accountant could help make your divorce more fair, contact Dailey Law Offices to set up your free consultation today! We have offices in both Franklin and Delaware County.

Chapter 13 and Divorce

You and your spouse filed a joint Chapter 13 bankruptcy, and now things have gone south with your marriage. If you and your spouse are facing a divorce after you’ve filed Chapter 13, there are several things to consider.

First and foremost, your bankruptcy attorney may face a conflict of interest if you and your spouse have divorced. Because divorce is an adversarial process, your bankruptcy attorney cannot continue to represent both of you.

With regards to your Chapter 13 plan, you and your ex-spouse have several options for continuing in bankruptcy:

  1. Maintain plan payments: If you and your ex-spouse are separated on good terms, you can agree on a division of plan payments and continue to make the payments in your Chapter 13 plan.
  2. Convert into a Chapter 7: Because you have now separated into 2 households, your costs and expenses have probably increased. With these increased expenses, you may be eligible to convert your current Chapter 13 into a Chapter 7 bankruptcy and achieve discharge in that way.
  3. Reduce Chapter 13 plan payments: If you don’t want to convert into a Chapter 7, you and your ex-spouse may succeed in a motion to lower your plan payments due to the increased expenses in having 2 separate households.
  4. Bifurcate: If you and your ex-spouse are not able to continue a bankruptcy together because you are not agreeable, the last option you have is to separate your bankruptcy into two separate bankruptcies. Once the bankruptcy gets separated into each personal bankruptcy, it would be each person’s prerogative to move forward with a Chapter 13 or a Chapter 7, or any other decisions that are to be made.

There are several other considerations that need to be taken into account with a divorce in a Chapter 13 joint bankruptcy, including property transfers. If you have a bankruptcy question and need to discuss options with an attorney, contact Dailey Law Offices to set up a free consultation in our Hilliard or our Delaware office.

How can filing Chapter 7 bankruptcy affect your business?

When a Chapter 7 bankruptcy is filed, an immediate hold goes on any collection activities by your creditors. In a personal bankruptcy, all dischargeable debts go away and the debtor is no longer responsible for paying the debt. A trustee sells of any non-exempt assets and pays creditors in order of their priority. For a business bankruptcy, however, there is no discharge and no exemptions – all of the business assets are sold and the proceeds are distributed among the creditors.

If you are the owner of a sole proprietorship, meaning you did not for a specific business entity, your personal assets and business assets are one in the same. If you file a Chapter 7 bankruptcy, there is no real distinction between your business assets and your personal assets. Therefore, exemptions can be used to protect both business and personal assets. You may be able to wipe out the debts and then continue to operate the business.

In a partnership relationship, the business is considered a separate legal entity and it can file a Chapter 7 bankruptcy as a business. The trustee will close and liquidate your partnership business in order to pay off the business creditors. If there is not enough assets to pay off all of the partnership creditors, the individual partners will only be liable if they were personally liable for the partnership debt. If you are personally liable for partnership debts, you may have to file Chapter 7 bankruptcy personally to relieve your debt obligations. In the alternative, the trustee can sue the general partners to pay any remaining creditors.

A corporation is similar to partnerships in that it can file Chapter 7 bankruptcy, but it does not receive a discharge. The trustee will close and liquidate the business to pay off the debts. You are only liable for the debt of a corporation if you cosigned or personally guaranteed a debt of the business. Again, you may have to file Chapter 7 yourself to relieve your obligations to the creditor.

If you have questions about whether Chapter 7 is an option for you and your business, contact Dailey Law Offices for a free, thirty-minute consultation today!

Valuation Services: How much do you actually have?

When an individual files bankruptcy, there is often a dispute between the debtor and his creditors as to how much money the debtor actually has available to pay off his obligations. In these situations, a bankruptcy court (or the individual debtor) may implement a valuation service to determine the worth of assets from an objective point of view.

Valuations can be used to determine the value of a creditor’s secured claim, to evaluate offers for property sold, or to make adequate disclosures in a reorganization plan. It can also help determine whether a creditor’s claim is secured and the current value of a debtor’s assets. Traditionally, bankruptcy law holds that the value of something changes with its purpose or use, so timing of a valuation service is key.

In terms of businesses that file for bankruptcy, valuation services can determine the value for the business as a whole, as well as the value of tangible (machinery, land, buildings, etc.) and intangible (trade names, designs, patents, etc.) assets.

It is often wise to consult a valuation service on your own, because it can be cheaper and easier than a court-ordered valuation. Call Dailey Law Offices today to discuss valuation services and other bankruptcy needs.

When Can I Discharge My Tax Debt?

If you’re thinking about filing bankruptcy, you may wonder if your tax debts are dischargeable. Some income tax debts are in fact dischargeable, but they must meet the five criteria listed below:

  1. The tax debt must be from a tax return that was due at least three years before you filed bankruptcy. The due date includes any extensions you may have received.
  2. You must have actually filed a tax return for the debt at least two years before you filed for bankruptcy. This time period is calculated from the date you actually filed the return. (If you have a tax debt that is at least three years old, but you didn’t file a return within the two years before you filed bankruptcy, it will not be dischargeable.) It is also important to note than any debts arising from an unfiled tax return are not dischargeable.
  3. The tax return filed cannot be fraudulent or frivolous.
  4. As the tax payer, you cannot be guilty of any act of intentionally evading tax laws.
  5. The tax debt must have been assessed by the IRS at least 240 days before you filed for bankruptcy.

While it may be good news that some of your taxes are dischargeable in bankruptcy, it is important to note that tax liens filed by the IRS are not dischargeable. For instance, if your tax debt is discharged, you are not personally obligated to pay the debt and the IRS cannot go after your bank accounts or wages. However, if they recorded a tax lien on your property before you filed for bankruptcy, that lien will remain. This means that before you sell the property, you will have to pay off the tax lien.

If you have any questions about whether or not your tax debt is dischargeable, contact
Dailey Law Offices today for a free consultation and speak with one of our experienced Columbus Bankruptcy Attorneys.

Individual Chapter 11 Bankruptcies

What is an Individual Chapter 11 Bankruptcy and Why would I need one?

Chapter 11 bankruptcy is an option available to individuals, even though it is most commonly used by businesses. While most people file a Chapter 7 or Chapter 13 bankruptcy, Chapter 11 favorable to those whose income exceeds the amount allowed by Chapter 7 or who have too much debt to file under Chapter 13. Chapter 11 is most similar to Chapter 13 because it involves a reorganization of debt.
In Chapter 11, the debtor becomes known as a debtor and a debtor-in-possession. The debtor-in-possession has the same rights and responsibilities as a bankruptcy trustee, (except receiving compensation) though most rights must be exercised with court approval. Should the court decide either on its own or by the suggestion of a creditor that a debtor-in-possession is unable to adequately perform his responsibilities, it may appoint a bankruptcy trustee.

The process of Chapter 11 bankruptcy is fairly simple. The debtor drafts a disclosure statement describing how he will reorganize his debts and gets the court to approve it. Then, the plan must be confirmed by each impaired class of creditors (creditors who will receive less than what they are owed). Once the creditors agree to the plan and it is confirmed, a third-party agent typically executes the plan by providing how payments will be made or how an individual most operate for the duration of the plan. Finally, the bankruptcy will be discharged according to the confirmed reorganization plan, which is usually upon substantial completion of payments to creditors.
If you think you may not qualify to file Chapter 7 or Chapter 13 bankruptcy and want to learn more about Chapter 11, call Dailey Law Offices today to set up a free consultation with one of our experienced bankruptcy attorneys.