Ohio Probate Lawyer Blog

The Ohio probate process can be daunting to navigate at the best of times, but when the estate includes rental property, the process becomes even more complex. If you are serving as executor or personal representative of an Ohio estate that includes income property, there are some important factors you must take into account. Here are some things you need to consider if you are dealing with rental property in probate.

Consideration #1: How the Property was Titled

If the deceased owned rental property, you, as executor, may need to step in and take action regarding the property, but this depends on how the property was held. If the property was held in trust, it will not need to go through probate at all, and will be managed by the named trustee.

If the property was not held in trust, but was held jointly with another person, the form of ownership will be important in determining what happens next. If the property was held as joint tenants with rights of survivorship, it will not go through probate. The surviving joint tenant(s) will automatically take the deceased person's interest in the property. If the property was held as tenants-in-common, there is no… Read More

If you have worked hard to save for your family's future, the last thing you want to have happen is for those assets to go to waste or end up in the hands of someone other than your loved ones. If you have an intended beneficiary who is young and impulsive, or has a history of poor money management, you need to think long and hard about protecting their inheritance. A spendthrift trust may be the solution.

Having a will is important, but leaving someone assets in a will means that they receive their entire inheritance when the estate is settled. If they want to cash that check, buy a brand new convertible with part of it, then speed down the road throwing hundred dollar bills out the back, no one can stop them.

As a general rule, a living trust is more helpful than a will, in that the trustee may be able to control the flow of assets into the beneficiary's hands. Unfortunately, most trusts may not protect trust assets from creditors. That's where wholly discretionary spendthrift trusts come into the equation.

What is a Spendthrift Trust?

A wholly discretionary spendthrift trust is designed to protect trust assets and anticipated distributions from a… Read More

How will your assets be transferred to your loved ones after your death? Your first thought may be that your last will and testament will distribute your assets, and this may be true to an extent. Chances are, though, that you have assets that will pass to others because of the beneficiary designations you have made. And without realizing it, you could easily have made mistakes in making beneficiary designations.

Assets owned in your sole name will go through probate, but there are many types of assets that will not. These include assets in a trust; real estate or bank accounts held jointly with another person that have a right of survivorship, meaning that the survivor takes the asset; retirement accounts; life insurance policies; transfer-on-death (TOD) accounts; and payable-on-death accounts. All of these assets may be subject to one or more of the following mistakes. Have you made any of them?

Failing to Name a Beneficiary

What happens if you don't name a beneficiary on a retirement account or life insurance policy? The probable outcome is that the benefits will go through probate when you die. Not only does this create inconvenience, it could, in the… Read More

Serving as the executor of an estate can be a daunting prospect, especially if it's a large or complex estate, and particularly if you have never before served as executor. It is reasonable to be concerned about this responsibility, but you do not have to be overwhelmed. As attorneys who have guided executors through hundreds of Ohio probate matters, we have guidance to offer first time executors that we hope will set your mind at ease and make the probate process smoother. Here are some of the things people often wish they knew before serving as a first-time executor.

Set Aside Space for Estate Documents

Even before the probate estate is opened, you will begin accumulating documents relevant to the estate. These may be bills that have gone out to the deceased person (decedent) which need to be paid, mail, and receipts. You don't need to have a fancy filing system, but it will reduce your stress immeasurably to be able to quickly lay hands on any document that has to do with the estate.

Part of your job will be to keep meticulous records of any claims against the estate, estate income, and payments made by the estate. Even if your "filing system" is a larg… Read More

Trusts come in many forms and serve many purposes, including avoiding probate, protecting assets from creditors, and offering tax benefits. Many people also use trusts to protect beneficiaries whom they fear would not be able to manage assets if they inherited them outright. But what if you have a beneficiary that you trust to manage their financial affairs? You can still help them reap the other benefits of a trust while granting them more control over the assets in it. Learn how a Preservation Trustâ„¢ provides asset protection and income tax flexibility.

A Preservation Trustâ„¢ is more commonly known as a beneficiary-controlled trust. Beneficiary-controlled trusts are a subset of dynasty trusts. Using a Preservation Trustâ„¢, you can grant your beneficiary the authority to manage trust assets while still protecting the assets in the trust for their use and for that of future generations.

What is a Preservation Trustâ„¢ and How Does it Protect Assets?

A Preservation Trust™ is a trust in which the primary beneficiary also serves as the controlling, or primary, trustee. This allows the beneficiary to have nearly the same level of control over trust asset… Read More

What's the difference between taxable income and accounting income when administering a trust? Taxable income and accounting income may be different on paper, but they are both important, and it's important to understand how they differ.

What is Trust Accounting Income?

Trust accounting income, or TAI, is the income that is available to distribute to the income beneficiary of a trust. The formula for calculating TAI is all income of the trust, less expenses attributable to income.

Ohio, like most states, has adopted the Uniform Principal and Income Act (UPIA). This law allocates income and expenses as follows: operating income and expenses, depreciation of assets, interest, rents, royalties, and dividends are allocated to accounting income. Taxes on accounting income are also allocated to income. Capital gains and losses, capital improvements and extraordinary repairs to trust property, casualty gains and losses and insurance recoveries are allocated to principal. Taxes on trust principal are also allocated to the principal.

Why is it important to know exactly what the trust's accounting income is? Certain trusts (known as simple trusts) are require… Read More

You are probably aware of how expensive nursing home costs are in this country, and that they will likely only continue to increase. You may also know that in order to meet those rising costs, more and more nursing home residents need Medicaid to help pay for care.

Unless you've had a family member pass away after receiving Medicaid benefits to help pay for their nursing home care, you may be less aware of the Medicaid estate recovery program. Essentially, this program, instituted in Ohio a few decades ago, allows the state to recoup funds it paid out in Medicaid benefits from the estate of a deceased recipient. Even more recently, the state expanded the notion of what assets qualified as recoverable under the Medicaid estate recovery program. Whereas the Medicaid estate recovery originally could recover only probate assets, the state later implemented an "augmented estate" approach that allowed the Medicaid estate recovery program to claim against assets in which the Medicaid recipient had a legal interest in the moment before his or her death. These include living trusts, jointly held bank accounts, and jointly held real estate.

The expanded reach of the Medicaid… Read More

You may be familiar with Medicaid as a government program that provides funding for health care to people with limited income. You may also believe that, as someone who has worked and saved for all of your adult life, you will never fall into the category of individuals who need Medicaid assistance. Hopefully, you are right about that.

You might be surprised to learn that many people in a similar situation to yours have ended up needing Medicaid services for one reason: they have needed nursing home care for an extended period. Nursing home care is expensive—in some cases up to $100,000 per year or more—and it is not covered by Medicare except in certain limited instances. That means that when an individual's funds are depleted and they can no longer pay out-of-pocket for care, they may become eligible for Medicaid.

After a person who has received Medicaid dies, the State of Ohio has the right to file a claim against their estate to recover some or all of the assets paid out through Medicaid on their behalf. This is called "Medicaid estate recovery." All states that receive federal Medicaid funding are required by law to establish such an estate recovery progra… Read More