Ohio Probate Lawyer Blog

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

You may have heard of the benefits of having a trust in your estate plan. It's true that trusts provide many advantages, including the avoidance of probate. But beyond that, the types of advantages offered by a trust depend on the type of trust you use. For instance, revocable and irrevocable trusts provide different benefits. Further, there are different types of irrevocable trusts. The person who needs an irrevocable trust generally will have very specific goals in mind. It is extremely important that you understand the significant differences before ever signing an irrevocable trust.

As the name suggests, a revocable trust is one that the grantor (also called the settlor or trustmaker) can revoke at will. If you've heard someone talk about a "living trust," it was probably revocable. A revocable living trust allows the grantor serve as trustee and to use and benefit from trust assets d… Read More

One of the many duties of an executor or administrator of an estate is the management of the deceased person's property. Sometimes, that management involves the sale of property. How, exactly, does one go about selling property in probate that belongs to a decedent's estate?

First things first: unless you are the executor or administrator (also known as the personal representative of the estate), you don't sell or transfer any of the property of the estate. You could find yourself in legal trouble if you do. If you are the personal representative, the procedure for selling property depends partly on the circumstances and partly on the type of property.

Does the Will Give Authority to Sell Property?

If the deceased person's will authorizes the personal representative to sell real or personal property, the personal representative need not seek court approval prior to the sale. Ohio probate law, specifically Read More

Will a will prevent probate? A surprisingly common misconception is the idea that having a valid will in place prevents one's estate from going through the probate process. In fact, leaving property to your loved ones via a last will and testament guarantees that at least a part of your estate will have to go through probate. Probate is the process of authenticating a will (if one exists) and distributing assets according to its terms.

What having a will does prevent is an estate being distributed according to Ohio's intestacy laws. These laws are intended to distribute the property of a deceased when there is no will or other valid estate plan. Intestacy laws try to approximate what most people would do with their property had they had an estate plan. Typically, people would provide first for their spouse and children, and then for more distant relatives. Like other laws that are intended to cover a wide range of people, intes… Read More

You don't tell the neighbors your salary, or your coworkers your bank balance, or your friends how much your stock portfolio is worth. And they wouldn't think of asking, because financial matters are considered private.

If you surveyed 100 people, it's likely that none of them would want their personal and financial affairs to be available to anyone who chose to look them up. But few people consider, when making their will, that that's what happens when you open an Ohio probate case.

What Do You Mean, My Probate Case is Public?

Probate court in Ohio is public. Hearings are typically held in open court, which means anybody can be present for a hearing. As a general rule, most probate matters are not terribly exciting, and it's not likely that the general public is going to flock to (or even know about) a routine hearing. Still, you may find it unsettling to know that people you don't know may be able to hear about your family's personal matters.

This is especially true if you think there is even a remote possibility of a will contest or other probate litigation… Read More