Ohio Probate Lawyer Blog

How to Prove You Are Next of Kin

Most people have heard the term “next of kin,” usually in connection with a deceased person. Who is “next of kin,” and why does it matter? In the probate setting, it is important to identify someone’s legal next of kin when they have died without a will and their estate must be managed and assets distributed.

Next of Kin Rights and Responsibilities

If a deceased person (decedent) has died with a will, it almost certainly identifies a person whom the decedent selected to administer the probate estate. This person is often a close relative, but need not be. The executor named in the will has no legal authority to act on behalf of the estate until they are appointed by the court.

If there is no will, however, the decedent’s next of kin has priority to be appointed as administrator of the estate. The administrator has numerous responsibilities, including identifying all interested parties and notifying them of the probate proceedings; securing the property of the estate; and paying all legitimate debts of the estate before… Read More

“Exemption-Like” Strategies for Asset Protection

Attorneys who offer estate planning and business succession planning services are not just in the business of passing assets to the next generation. We are in the business of helping to protect those assets too. Asset protection involves ensuring that as many assets as possible are outside the reach of creditors and the bankruptcy courts.

While bankruptcy is sometimes necessary and/or the best option for a fresh financial start, it can expose hard-earned assets to seizure and liquidation by the bankruptcy trustee. It is not always possible to predict whether you (or one of your heirs or beneficiaries) will need to file for bankruptcy. But it is possible to take asset protection measures just in case.

Bankruptcy laws provide for certain types and amounts of properties to be “exempt,” placing them outside the reach of the bankruptcy trustee. In addition, there are certain strategies that are “exemption-like,” which end up offering similar protection.

Protecting an Interest in an LLC with an Executory Operating Agreement

For many individuals, their interest in a business is one of their most valuable assets, not only from a financial standpoint… Read More

What to Do When a Beneficiary is Living “Off the Grid”

These days, it seems you can find people, even those you haven’t seen in years, in a matter of moments. A quick internet search can find that long-lost friend or second cousin, yielding social media accounts, emails, phone numbers and even physical addresses. It may feel as if it is impossible to escape the sticky tendrils of the aptly-named “world-wide web.” Even in death, digitized Social Security death records, ancestry sites, and websites like findagrave.com mark a person’s existence and passing.

Most people, when creating or updating a trust, don’t anticipate the possibility that one of their beneficiaries will simply disappear without a trace. Yet this very outcome happens with disturbing frequency. Online trails may go cold, and there may be no conclusive evidence that a beneficiary has died. What happens to a trust when a beneficiary is living off the grid, or perhaps not living at all?

How Does a Beneficiary Disappear?

It may seem impossible that someone who is the beneficiary of a trust would walk away from thousands or hundreds of thousands of dollars,… Read More

What is the Charitable Deduction Limit for Income Tax?

Since the enactment of the federal Tax Cuts and Jobs Act (TCJA) in 2017, fewer people have been itemizing charitable deductions on their income tax. The TCJA nearly doubled the standard deduction available to taxpayers, making it less burdensome for many to simply take the standard deduction than to itemize such things charitable donations in an effort to reach a higher deduction amount.

Those who still itemize donations because it makes better financial sense for them may do so because they have significant charitable donations. Those taxpayers need to be aware of the limitations on deductions for various types of property donated to various types of organizations. In other words, not all charitable donations are created equal for the purposes of income tax deductions.

The CARES Act and Charitable Donations

When the TCJA offered a higher standard deduction without the need to make charitable donations, such donations, predictably, declined. Then along came the COVID-19 epidemic, plunging many Americans into dire financial straits. Charit… Read More

The Unclaimed Funds Act of Ohio to Bring Help to Closed Estates with Unclaimed Funds

Administering an Ohio estate can be challenging for personal representatives, and there is usually a sense of relief and satisfaction when the process is successfully completed. But what happens when an estate is closed, and it is later discovered that the state of Ohio was holding unclaimed funds for the deceased? Does the estate need to be reopened?

Historically, the answer to that question has been yes, resulting in additional paperwork, effort and expense, sometimes to recover only a relatively small amount of money. Fortunately, House Bill 270, which was passed unanimously by the Ohio House, may change all that, making the process of reclaiming previously unclaimed funds on behalf of an estate much more straightforward.

The bill, which makes multiple changes to the Unclaimed Funds Act of Ohio, creates a procedure that streamlines the process for small or closed estates to claim funds that belonged to a decedent and which lay unclaimed with the state. The proposed Ohio Revised Code 169.052 is expected to pass the Senate without difficul… Read More

Who Makes Healthcare Decisions in a Blended Family?

If you were suddenly to become so ill that you couldn’t make healthcare decisions for yourself, who would make them on your behalf? This question has taken on a greater urgency than usual during the COVID-19 pandemic, in which people who have no symptoms on one day can be grievously ill less than a week later.

Many people assume that their next of kin, such as a spouse or an adult child, would make important healthcare decisions for them if the need arose. But what if you are in a blended family? Or if a spouse and adult child disagree, who takes priority?

Unfortunately, this is not an uncommon scenario, especially in second or subsequent marriages when the patient’s spouse is not the parent of the patient’s adult children. In that case, the question of who gets to make a decision about a patient’s health can be a thorny one. The consequences may literally be life-and-death; even if not, the dispute can cause a permanent rift in a family.

Issues in Healthcare Decision Making

Any family can have conflicts over healthcare dec… Read More

Inheritance and Divorce: How the Dissolution of Your Marriage Impacts Your Estate Plan

Families are constantly changing—sometimes through joyful events like marriages, births, and adoptions, and sometimes less happy ones, like a death or dissolution of a marriage. But too often, people plan for the future as if it will only contain happy events. Even when people do make an estate plan, they tend to ignore the very real possibility of a divorce down the road: either theirs, or their child’s.

Of course, unlike death, divorce isn’t inevitable. Even so, failing to take into account that a divorce could happen could have disastrous outcomes for family wealth. Our firm talks about inheritance and divorce in Ohio, and what you can do to protect your assets for the people you want to inherit them.

What Happens to an Inheritance in a Divorce?

As you know, in a divorce, the court divides up the couple’s marital property between them. But unless you have actually gotten divorced, you may not have thought much about what “marital property” is. In essence, “marital property” is any property that either spouse acquires during the marriage, with limited exceptions. In Ohio, one of th… Read More

“Payable on Death” and Your Financial Accounts

Here’s a riddle, and you may not find the answer funny: when does a beneficiary named in a will not get the assets left to them in a will? The answer is when the asset is payable on death to someone else. Ohio law authorizes individuals to enter into contracts with banks and other financial institutions to make the contents of a financial account payable to a designated beneficiary on the owner’s death. These are called “payable on death” or “POD” accounts if the funds are in a bank account. Brokerage accounts and other assets, like car titles and even real estate, may be “transfer on death” or “TOD.” POD and TOD assets operate similarly, with the same advantages and disadvantages.

Advantages of Payable on Death Accounts

At first glance, POD accounts appear to have a number of advantages. For one thing, they bypass probate court. Upon the death of an account holder, the designated beneficiary needs only to present… Read More

Death and Taxes: What Happens to a Tax Refund After Death?

Nothing is certain except death and taxes—and the headaches that result when the two intersect. Rarely do people die with their finances neatly tied up, and one of the frequent issues that arises is the matter of the deceased person’s (decedent’s) last income tax refund.

If a person dies being owed an income tax refund (as thousands of people do every year), what happens to the money? Obviously, the decedent cannot cash a check made out to him or her. A refund in the sole name of the decedent is an asset of the decedent’s estate. Eventually, it will be distributed to the decedent’s heirs or beneficiaries (assuming there is money left in the estate after all legitimate debts are paid). But what happens in the meantime? And what if the tax refund is from a tax return jointly filed with a… Read More

Planning for Your Family Farm and Home

Despite the rise of corporate farms in the United States, the U.S. Department of Agriculture reports that 97% of farms in this country are family-owned, and 88% of all U.S. farms are small family farms. Research suggests that most family farmers—about 80%—intend to pass their farm down to the next generation. A study out of Iowa State University indicated that half of farmers did not have an estate plan, and nearly three-quarters had not chosen a successor to take over the family farm business.

Family farmers are not alone in the tendency to put off estate planning, but that delay can have a disastrous outcome: by some estimates, fewer than a third of family farms continue into the second-generation, and only about 12% continue into the third. Lack of planning is often a primary reason.

You may imagine your children working side by side on the family farm, continuing to build the legacy you left them. Even if this rosy vision materializes, it won’t do so organically. With most businesses, including fam… Read More