Ohio Probate Lawyer Blog

Increasingly in the past several years, estate planning attorneys have come up against the need to plan for intellectual property when crafting an estate plan. Intellectual property consists of things such as patents, trademarks, copyrights, and trade secrets. The overarching goal of all of these is to allow the owner of the intellectual property (IP) to keep others from producing, using, or selling protected goods and services. Because intellectual property is intangible, estate planning for intellectual property poses some unique challenges.

The various different types of intellectual property are protected by somewhat different means. If you have invented a useful new tool, for instance, the process for protecting it with a patent is different than the process used by your author friend to copyright articles she has written. And if you want your invention, brand, writing, or other creation to continue to benefit your family or other beneficiaries after your death, it is essential to work with an attorney who can successfully plan for the transfer of your intellectual property rights.

Estate Planning and Intellectual Property Issues

When you set out to m… Read More

A court challenge to a will or trust is something no one wants, but few people actively try to avoid. If your last will and testament, or your trust, are challenged after your death, it can be devastating on many levels. As you might expect, such a challenge is usually time-consuming and costly. But even more important to many people, will and trust contests can lead to permanent rifts in a family. Even if the financial outcome is what the person making the will or trust intended, the personal fallout may not be able to be repaired. Fortunately, Ohio now offers a new tool to protect your will and trust from challenges.

In March 2019, testators (creators of wills) and settlors (creators of trusts) will have the opportunity to have their wills and trusts declared valid before their deaths, a process called ante-mortem procedure. This process is not entirely new; Ohio residents have had the ability to have their wills declared valid during their lifetimes for years. However, the prior statute did not include the opportunity to valid… Read More

No matter how much money you have when you are alive, it is nearly impossible to die without some debt. The current month’s mortgage and utilities, car payments, credit card bills, and, of course, the expenses of your last illness, especially if you die in a hospital. But just because a person has a debt when they die does not mean that that debt survives them. In most cases, a creditor has to do something to keep that debt alive after the debtor has shuffled off this mortal coil. Here’s what you need to know about claims against estates in Ohio.

As a general rule, in order for a debt to remain valid after the person who incurred it dies, the creditor must present a claim on the debt to the personal representative of the estate within six months after the deceased person (decedent) died. The Ohio Revised Code specifies that “no payment shall be made...an… Read More

Your estate plan includes a last will and testament, and likely a living trust and powers of attorney. If your goal is to keep your assets out of probate and to provide for your children, you may be overlooking another tool for estate planning: beneficiary designations. Here's a guide to using beneficiary designations in your estate plan.

You probably have some assets with beneficiary designations already, such as life insurance policies. There are also other assets for which you can plan with beneficiary designations, and some documents, such as a divorce decree, that may require you to establish beneficiary designations on certain assets. By deliberately planning your beneficiary designations, you can ensure that your assets pass as you intend with a minimum of red tape.

Beneficiary Designations for Retirement Plans

If you are like many people, your retirement plans are some of your most significant assets. Most retirement plans, like 401(k)s and IRAs, pass through beneficiary designations, not through a will. If you have a 401(k), federal law says that your spouse is your beneficiary. Even so, it is advisable to name him or her as beneficiary on your co… Read More

Ohio, like other states, has laws that dictate how a the estate of a deceased person (decedent) passes when there is no will. These laws, called “laws of intestate succession,” guide courts, and administrators, as to how the decedent’s assets should be distributed. How does Ohio inheritance work when there is no will?

For the most part, laws of intestate succession try to approximate what most people would intend if they had made a will. If there is a spouse and children, for instance, they will inherit rather than a half-sibling or a first cousin once removed. (If you would prefer your first cousin once removed inherit from you instead of your spouse, you had better get yourself an estate plan—or a divorce lawyer.)

Things get considerably more complicated, though, when there are no close relatives, or when heirs are not of the same degree of relation to the deceased. It’s easy to figure out what to do when the deceased is survived by three adult children, but no spouse: the estate is divided into three equal shares. But what if one of those adult children has died, leaving three children of his own? Or what if the deceased had no surviving spouse, childr… Read More

These days, people move around more than ever. You might buy a house in Dayton, get transferred out of state for work, and continue to rent out the Ohio property. Or you might spend most of your life in Ohio, only to spend your later years living with an adult child in a neighboring state. Whatever the reason, there are many people who live outside of Ohio, but continue to own real property in the state. When they die, that real property needs to be disposed of. Ancillary probate in Ohio is one mechanism to deal with real property whose owner died outside of the state.

Ancillary probate is addressed in Chapter 2129 of the Ohio Revised Code. If a resident of another state dies owning property in Ohio, someone must apply to be appointed ancillary administrator in the county in Ohio where property of the deceased person (decedent) is located. If the decedent had a will, the person named as the executor in the will is generally eligible to serve as the ancillary administrator of the Ohio estate. If the decedent did not have a will (they died intestate), the ancillary administrator must be a resident of the county in which the property is located.

As a practical matter,… Read More

A new omnibus bill, HB 595, has made some changes to Ohio probate law that could affect your will or trust. The law is far-reaching, and contains much more information than we can address in a single blog post, but there are some developments in Ohio probate law that could have an impact on you or your loved ones. Here are some of the important developments from Ohio HB 595.

Incorporating a Trust into a Will

Prior to the effective date of HB 595, an existing document could be incorporated into a will "by reference." This means that simply by referring to a document, book, memorandum, or record in a will, the document could become part of the will. The actual document had to be deposited in the probate court at the time the will referring to it was probated, within 30 days afterward, or later if the court granted an extension of time for good cause.

HB 595 provides that if a will incorporates a trust instrument only under the circumstances that a bequest to a trust is ineffective, the trust instrument needs to be deposited in the probate court within 30 days of a final determination that the bequest was ineffective.

In addition, HB 595 that if it is… Read More

Most of the time, when someone leaves a will, their assets are distributed according to the terms of the will, after all of the debts of the estate are settled. Occasionally, though, a last will and testament will make bequests that just cannot be fulfilled; there are not enough assets left in the estate. When that happens, who gets shortchanged? Do some heirs receive their entire bequest, while others get little or none of what was "left" to them? Abatement of legacies is the law of who gets what, and how any shortfalls are handled.

Why would abatement of legacies be necessary? Who would leave their heirs assets that they didn't have? Most people don't intend to do that, of course. But the reality is that the value of an estate can go up and down between the time a will is written and the time it becomes necessary to distribute assets. In addition, estate debts can be higher than anticipated, particularly if the last illness of the deceased person incurred significant medical bills.

Put simply, there are often the same number of people at the table, but the size of the pie is smaller. The question then becomes: how is the pie divided? Do some people leave the tabl… Read More