Ohio Probate Lawyer Blog

What Happens if Creditors Aren’t Notified of a Probate Case?

You can’t take it with you—and in addition to leaving your money behind, chances are you’ll leave some unpaid bills behind, too. What happens to your debts after you die?

The short answer is that they get paid out of your probate estate according to a priority established by Ohio law. Creditors must present a claim within 6 months of the date of death, after which time the executor or administrator of the estate has thirty days to reject or allow the claim.

In many states, the executor or administrator of the estate is required to give notice to creditors of the deceased. If there are known creditors, they must be notified directly, while an advertisement is placed in legal newspapers to provide notice to unknown creditors. However, in Ohio, there is generally no such notice requirement. That said, there are a few exceptions to that rule.

When Must an Ohio Personal Representative Make a Notice to Creditors of Probate?

The first situation in which an Ohio personal representative must publish n… Read More

Paying Estate Debts: Why Priority Matters

One of the many duties of a personal representative of an estate is to pay all legitimate debts of the estate before distributing the remaining assets to beneficiaries. But what happens if there are not enough assets in the estate to pay all the money that is owed? Are beneficiaries liable for estate debts?

As a general rule, beneficiaries of the estate of a deceased person (decedent) are not liable for estate debts. (There are some exceptions, such as if the debt was a joint one or the beneficiary of the estate co-signed for the debt.) But it’s still important to pay debt in the proper order, according to Ohio law on the priority of debts.

How Are Debts Paid From an Estate?

Under Ohio law, creditors have six months from the date of the decedent’s death to make a claim for payment against the estate. After six months, any claims against the estate are barred. Part of the reason for this rule is to provide certainty. Otherwise, a personal representative could pay known debts of the estate and distribute the remaining property, only to have a creditor appear weeks, months, or years l… Read More

Does Your Family Know What to Do When You Die?

Death comes for us all, whether we plan for it or not. Given that harsh reality, it’s tempting to simply avoid thinking about it—after all, there’s nothing you can do about it, and you may not be comfortable talking about how to plan for death. But planning for death is one of the last and kindest gifts you can give to the people you love. Let’s talk about how to discuss your estate plan with your family, as well as your last wishes.

Discuss Your Estate Plan With Loved Ones

Having to have “the talk” is never easy, and there are various components of it: end of life questions, how you want your property distributed, and how to plan your funeral. There is often an easy, if unfortunate, introduction to the topic: the death of a friend, neighbor, or other family member.

You can begin the conversation with your loved ones by saying something along the lines of, “You know, since Mrs. Smith passed away, I’ve been thinking about the things you’ll need to know about my wishes someday. I hope that day will be a long way off, but I know it will be easier on you… Read More

Advantages of Probate Mediation

Probate is the court-supervised process of administering a deceased person’s estate after their death. Ohio probate courts are also involved in appointing guardians for people who lack the capacity to manage their own affairs. These processes can be emotionally charged, and it is not uncommon for family members to have disputes about how estate business should be handled or who should be appointed administrator or guardian. These disputes have historically been resolved by litigation in the probate court.

Probate litigation may result in a definitive answer about the issue at hand, but probate matters are often also about conflicts that a court cannot effectively address. In recent years, probate mediation has become more popular as a way of reaching deeper, more lasting resolutions to the issues involved in probate disputes.

What is Probate Mediation?

Probate mediation is a form of alternative dispute resolution in which a neutral third party, a trained mediator, helps parties to a probate dispute reach a mutually agreeable resolution… Read More

Storing Your Estate Planning Documents

Estate planning documents are only useful if the right people can reach them at the right time. You want to store your documents in a place where they will be safe, yet accessible to the people you want to be able to find them (and not others). What should you think about when deciding where and how to store your estate planning documents?

Organizing Estate Planning Documents

The first step in organizing and storing your estate planning documents is to identify just what constitutes your estate plan. An estate plan can, and should, include more than just a last will and testament. Some of the documents that might be included in your estate plan are:

  • Last will and testament
  • Trust
  • Durable financial power of attorney
  • Medical power of attorney
  • Living will
  • Life insurance policies

In short, these are documents that your loved ones will need to access when you are unable to communicate their location, either because you are… Read More

Do I Need to Hire a Probate Lawyer?

When an Ohio resident dies, a grieving family member is usually faced with the task of administering the estate, also known as probate. Probate can be a challenging process at the best of times, and even more so under the emotional strain of loss. Many people who are responsible for probating an estate have never done so before and do not know where to begin. A question we often hear from executors or administrators of estates is, “Do I need to hire a probate lawyer?”

The short answer to that question is that no, you are not required to have an attorney to probate an Ohio estate. But a better question is, “Would the probate process go more smoothly with a probate attorney’s help?” To that question, the answer is almost certainly “yes.”

What Does a Probate Lawyer Do?

To understand whether you need a probate lawyer’s help, it is important to understand what a probate attorney does. Probate is the legal proceeding for validating a will (if the deceased had one), settling creditors’ claims against the estate, and distributing any remaining assets to the decedent’s heirs or beneficiaries.

Probate often affects the rights of multiple… Read More

Can a Prenup Prevent Inheriting From Your Spouse?

Many, if not most people intend their spouse to be the primary beneficiary of their estate. But there are also many situations in which it makes sense to limit a spouse’s inheritance. Maybe you have family wealth or an interest in a family business that you want to remain in your family of origin if you should die. Perhaps you and your spouse are marrying later in life, and have each accumulated significant assets on your own. You might have children from a previous marriage that you would prefer to inherit your assets; a prenup can protect your child’s inheritance in the event that you predecease your spouse. Whatever your motivation, a prenuptial agreement can be a valuable estate planning tool.

If your first thought when you hear the word “prenup” is divorce, you’re not alone. But a prenuptial agreement is nothing more than agreement between a couple before their marriage as to how they will approach issues (usually financial) during their marriage. While a prenup does deal with how the couple’s property will be treated in a divorce, it can also address what… Read More

When Should a Personal Representative Be Removed?

When an Ohio resident dies, a personal representative must be appointed to administer their estate. If there was a will, the probate court often appoints the executor named in the will. If the deceased did not have a will, the court will appoint an administrator (typically a close family member) to serve as personal representative of the estate.

The personal representative is a fiduciary — someone obligated to act in the best interests of another party, rather than their own. In the case of a decedent’s estate, this person is obligated to follow the law and act in the best interests of the heirs or beneficiaries of the estate. Most representatives take their fiduciary duties very seriously. Sometimes, though, an executor or administrator commits a breach of fiduciary duty, or there is so… Read More

The Use of Domestic Asset Protection Trusts to Protect Assets from Creditors

Many people who establish trusts want to do so in order to protect assets for their loved ones. But there are many types of trusts, and not all of them protect against the same types of risks. All trusts keep assets out of probate. Depending on how they are structured, trusts can be used to reduce taxes, provide for loved ones with disabilities or special needs, benefit a favorite charity, and more. But if you are looking to protect assets from your beneficiaries’ creditors, you may need a domestic asset protection trust (DAPT).

Made possible by the Ohio Asset Management Modernization Act (OMMA) of 2012, the Ohio Legacy Trust Act (OLTA) became law in 2013. permitting the creation of domestic asset protection trusts (also called “Ohio Legacy Trusts” in Ohio. People who live in states that do not allow DAPTs can still create one in a state that does, if the trust complies with that state’s laws. Of the states that do allow DAPTs, Ohio consist… Read More

Changes to Ohio Guardianship Law in 2021

Ohio guardians have many responsibilities with respect to incapacitated adults on whose behalf they are acting. Guardianship rights are carefully calculated to give guardians the freedom to act for their wards’ benefit, without giving them excessive powers that could be abused.

For example, guardianship rights include the right to make and manage investments on the ward’s behalf, manage the ward’s real estate, and collect debts that are owed to the ward. Ohio Revised Code Section 2111.50 also gives the guardian the right to do some limited estate planning on the ward’s behalf. In August of 2021, that right was expanded somewhat, and procedural safeguards were put in place to protect the ward and other interested parties. Let’s discuss expanded guardianship rights regarding estate planning and managing a ward’s estate in Ohio.

Prior Limitations on Ohio Guardianship and Estate Planning

ORC Section 2111.50, prior to its amendment, granted a guardian the same powers that the ward would be able to exercise on their own behalf, if the war… Read More