Ohio Probate Lawyer Blog

We talk a lot in this space of the advantages of estate planning tools that allow you to transfer assets seamlessly to your loved ones outside of probate, and there are a variety of ways to accomplish that goal. One of those is to have a joint bank account that grants the joint owners rights of survivorship: in other words, when one joint owner dies, the other one automatically becomes the full owner of the account, without the need for probate or very much in the way of paperwork, for that matter. All that is usually needed is presentation of the death certificate to the bank.

Furthermore, if you were to become incapacitated during your lifetime, the joint owner of your bank account would have assets to the funds to pay for your care and other needs, without having to petition a court or get permission from anyone else.

It might surprise you to learn, then, that having a joint bank account with your adult child is generally not a recommended way to plan for the transfer of assets. A joint bank account that you've had for years with a spouse is a different matter. We're talking here about your own bank account that you may be thinkin… Read More

When a loved one passes away, how much you will inherit is probably the last thing on your mind. But after the funeral is over and the mourners have left, when the will is submitted for probate, some people receive an unpleasant surprise. Someone they don't know well, perhaps an attorney, caretaker, or friend of the deceased has been left a large bequest in the will, with close relatives receiving much less than they might expect.

In these circumstances, the slighted relatives might reasonably reach the conclusion that the attorney, caretaker or friend exerted some sort of improper influence or control over the deceased to get them to change the will in the third party's favor. But how does one prove this?

The Law of Undue Influence

"Undue influence" is a legal term. If it can be proved that someone exerted undue influence, a will may be invalidated and a previous will reinstated, or assets may pass under the law of intestate succession. But a court must make specific findings in order to determine that a will was created under a third party's undue influence.

In order for a… Read More

The probate process is, in essence, about distributing the deceased's assets to beneficiaries and heirs. But before that distribution can take place, creditors of the deceased are entitled to make claims against the estate and, if those claims are valid, have them paid out of estate funds. Here's what Ohio executors and heirs should know about creditor claims in probate.

How and When Are Claims Made?

Claims against the estate must be made (presented) within six months of the death of the deceased, regardless of whether a personal representative (an executor or administrator) has been appointed or whether the estate was not required to go through probate (known as summary release). Each claim must contain the claimant's address.

There are a few ways in which a claim can be presented under Ohio law:

• To the personal representative in writing;
• To the personal representative with a copy also being filed with the probate court;
• Sent in writing by ordinary mail addressed to the deceased, and actually received by the personal representative wi… Read More

The Ohio probate process is often an unfamiliar landscape for those who must navigate it after the loss of a loved one. There are many legal terms to make sense of, including "letters of administration" and "letters testamentary."

"Letters of administration" refers to the document given to the personal representative, or administrator, of the estate of a deceased person who died without a will. This document gives that person legal authority to administer the estate of the deceased, including gathering assets, receiving payments due the estate, paying bills and taxes, and distributing property to heirs. (Letters testamentary give the same authority to a person who has been named as an executor in a will.)

You can understand why letters of administration are necessary. It's not enough that someone say they are speaking or acting on behalf of a decedent's estate. Someone might claim to be, or actually be, a relative of the deceased and attempt to collect an asset of the estate. If it turns out they do not have authority to do so, whoever turned over the asset cou… Read More

There is a lot of talk about the advantages of living trusts, an estate planning tool most people have probably heard of. Pour-over wills, sometimes associated with living trusts, are much more unfamiliar to the average person. What is a pour-over will—and should you have one?

Simply put, a pour-over will is a will that distributes all of the assets remaining in the sole name of the person making the will (the testator) to a trust upon their death. The trust may be one already in existence when the will is made, or may be created at the same time as the will.

Though most people who have a living trust fund the trust during their lifetimes, there's no requirement that this be done if there is a pour-over will. The trust can simply wait, a vacant receptacle, waiting for the pour-over clause of the will to be applied and pour all of the testator's assets into the trust.

Do I Need a Pour-Over Will if I've Funded My Trust?

A pour-over will can be useful even if you have most of your assets in a living trust. Most people acquire an… Read More

You've seen the ads on TV: After the funeral of a neighbor or friend, two people are discussing how difficult things will be now for the surviving family because the cost of the deceased's funeral and burial was so high. The commercial ends with the actors vowing to buy burial insurance (often referred to as "final expense" insurance) to spare their family that kind of stress.

What exactly is burial insurance, and is it a worthwhile investment? Or is it an unnecessary expense that won't really make things any easier for your family after you're gone?

What Burial Insurance Is and Isn't

Many people confuse burial insurance with prepaid funeral policies, but they are, in fact, very different. Prepaid funeral policies are not insurance policies at all. They involve working with a funeral director to make and pay for your final arrangements in advance of your death. Doing this (and, of course, letting your loved ones know about it) can give you peace of mind that your funeral and burial arrangements will be as you wish, an… Read More

Serving as the personal representative (also called the executor or administrator) of an estate is a great responsibility. You're responsible for identifying, inventorying, securing, and distributing a deceased person's assets, not to mention paying their creditors and the estate's income taxes. For someone who's never served in this capacity before, the responsibility can be overwhelming, especially if the estate contains complex assets like a business or rental property out of state. It can be easy to make a mistake, which is why Ohio law authorizes a personal representative to hire a probate attorney to assist in the administration, and for the attorney's fees to be paid out of estate funds, not the personal representative's pocket.

Most personal representatives take their position very seriously and strive to do a good and efficient job. On occasion, however, a personal representative may act carelessly or even unethically, breaching the duty they've undertaken to faithfully execute. What recourse do heirs and creditors have when a personal representative breaches their duty?

What Is a Breach of the Personal Representative's Duty?

A personal representa… Read More

If you are planning for the benefit of a child with special needs, you may have heard the expression "pooled trust." What is a pooled trust, and when is it in your loved one's best interests to use it?

A pooled trust is a trust that has been set up and is administered by a non-profit organization. While each beneficiary of a pooled trust has a separate account for their benefit, all funds in the trust are pooled for purposes of management and investment.

In the event of the beneficiary's death, if funds remain in their individual subaccount, the trust is required to reimburse the state for any Medicaid support provided to the trust beneficiary. The amount of reimbursement may be any amount up to the total amount of Medicaid assistance provided, to the extent that the funds are not retained by the pooled trust.

When Should a Pooled Trust Be Used?

Pooled trusts can… Read More