Ohio Probate Lawyer Blog

You've been appointed guardian of a loved one's estate due to their legal incapacity. Your primary obligation to your ward is to manage their estate for their best interests, but what exactly does that mean? Are there any actions you're specifically required to take? How much discretion do you have, and under what circumstances are you required to ask for probate court permission to take an action on behalf of your ward?

These are questions many Ohio residents have when they suddenly find themselves responsible for another person's finances. Whether you are taking charge of the estate of an elderly parent with dementia or a sibling or adult child with a traumatic brain injury, here are some things you must understand about managing the estate of a ward in Ohio.

Managing Funds and Real Property as Guardian of the Estate

If your ward has cash assets, you are required to deposit those funds into an interest-bearing account in a bank or savings and loan association located within the state of Ohio. If your ward is fortunate enough to have money in excess of what is needed to pay current obligations, you must invest those funds on their behalf. There is a varie… Read More

What is a "guardian of the estate"? A guardian is a person (or, in some cases, an association or corporation) appointed by an Ohio probate court to take responsibility for a legally incompetent person, known as a ward, and/or the ward's property, or estate. Legal incompetence can arise in a number of ways. A child who is not yet an adult is legally incompetent, no matter how bright they may be. For the purposes of this article, though, when we talk about someone who is legally incompetent, we are referring to an adult, perhaps someone who has developed dementia or suffered a traumatic injury that makes them incapable of tending to their own business.

A person can nominate someone to serve as their guardian in the event that they become incapacitated, but only the Probate Court can appoint a guardian. If you are appointed as a guardian of the estate, what are your duties?

Responsibilities of a Guardian of the Estate

First and foremost, you mus… Read More

Serving as executor of a loved one's estate carries many responsibilities, and often, it seems, nearly as many pitfalls. Most family members who serve as executors have little experience doing so, making the task even more challenging. Unfortunately, it is possible to make missteps in administering an estate and not realize it until after the harm is done.

It may be helpful to become aware of some of the more common, and sometimes surprising, mistakes that executors make, and learn how you can avoid them.

Rushing Administration of the Estate

It's very important to open a probate case promptly, but take enough time to make sure you're doing the right things in the right order. Mishandling of estate business, even inadvertently, can result in personal liability for an executor. Even if you're not held liable for a mistake, errors caused by haste could delay the resolution of the estate.

For instance, Ohio law forgives almost all unsecured creditor claims if the estate is not opened for six months after the death. Opening the estate too soon could result in the loss of thousands of dollars.

Paying Bills as Soon as They're Received

Chanc… Read More

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