» Executors / Personal Representatives
Being named as the executor of a will is both a great honor and a great responsibility. It means that someone trusted you to wrap up their final affairs and distribute their earthly goods according to their last wishes. However, an executor, also referred to as the personal representative of the estate, has a number of duties to carry out between the time the probate estate is opened and the distribution of assets. For various reasons, not everyone feels up to the task. What do you do when you realize, “I don’t want to be an executor of someone’s will?”
Why Would Someone Decline to Be Executor?
There are many reasons you might not want to be the executor of a deceased person’s (decedent’s) estate.
- You have a demanding job or young family that needs your attention, and simply feel that you don’t have time.
- You lived near the decedent when the will was made, but have since moved… Read More
It’s true that for most people, their later years are some of the best of their life, but they also often come with increasing physical and mental challenges. Those challenges affect not only seniors themselves, but also the family members who love and care for them. Caring for aging parents is a rewarding, yet challenging experience. For your entire life, you may have experienced your parents as the strong and wise ones that you turned to for help. Now, they are counting on you.
If you are accustomed to your parents being strong and competent, it’s easy to miss the signs that they may be beginning to struggle, either in terms of their health or managing their daily affairs, including finances. You also may not get a straight answer if you ask if everything is under control. Just as you would prefer to continue to see your parents as you always have, they want to maintain their independence. However, there are signs that they may need some additional support.
How to Determine if an Aging Parent is Unable to Manage Their Affairs
Your parents may not tell you—or sometimes, even realize—that they are struggling. That said, there are some telltale sig… Read More
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
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
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
The probate process is full of language that is widely assumed to mean one thing, when it technically means something different or narrower. Executor duty generally consists of administering a deceased person’s (decedent’s) estate. In fact, an executor is the title given to someone tasked with managing the estate of a person who died with a will (testator).
Someone who died without a will is said to have died “intestate” and the person in charge of their estate is called an “administrator.” Administrators and executors collectively are called “personal representatives.”
Similarly, many people assume that an “heir” is someone who inherits from a decedent. What the term really means is a person who would be entitled by law to inherit from someone who died intestate, often a child or grandchild, but perhaps a parent, sibling, aunt, uncle, or cousin. (Spouses, while they have priority to inherit, are not considered “heirs.”) “Beneficiary” is the technical term for someone who inherits under a will or trust. An heir need not be a beneficiary (like a child who has been disowned). A beneficiary need not be an heir (like a friend named in a will… Read More
In Ohio, as in other states, attorneys who assist a personal representative in the administration of an estate are entitled to have their reasonable fees paid out of the estate. Attorney fees are governed not only by ethical guidelines established by attorneys' Rules of Professional Conduct, but by other Ohio rules and statutes. As such, attorney fees in estate administration are perhaps some of the most strictly regulated. Although attorney fees are paid out of the estate, Ohio case law has established that it is the personal representative, rather than the estate itself, who is the attorney's client.
What is a reasonable attorney fee for estate administration, and how is it determined? Essential guidance comes from Rule of Professional Conduct 1.5 (Rule 1.5), which states that a "lawyer shall not make an agreement for, charge, or collect an illegal or clearly excessive fee." A fee would be illegal if it violated a statute or some administrative regulation. A fee would be considered "clearly excessive" if an attorney of ordinary prudence would be left with a "definite and firm conviction" that the fee was excessive.
Factors in Determining Whether an Attorney Fee… Read More
Imagine the following scenario: Your sister, your only sibling, is a single mother of two young children. She hasn't gotten around to making an estate plan because, well, she's the single mother of two young children. You know she does all her banking online, but you don't know the details. If she died suddenly, and you needed to administer her estate, would you know where to begin? Would you even be able to gain access to the information you needed? This is just one of many scenarios that makes fiduciary access to digital assets in Ohio an important issue.
A fiduciary is someone who manages assets for the benefit of someone else, and is required to do so in the beneficiaries' best interest. So "fiduciary" is an umbrella term that refers to, among other things, the executor of a will, the administrator of an estate where there is no will, a guardian, an agent under a power of attorney, or the trustee of a trust.
As a fiduciary, you have the responsibility to act in the best interest of the beneficiaries of an estate or trust, but until recently, it may have been difficult to gain access to the data or documents you needed to do so. Once upon a time, there were pape… Read More
Ohio trustees are fiduciaries, bound to act in the best interests of the beneficiaries of the trusts they are managing. As such, they frequently face ethical dilemmas regarding their duties. Let's talk about some of the ethical issues in trust administration, along with suggestions for addressing them.
Most trustees have the best of intentions, but may not anticipate some of the scenarios that could arise in the course of their administration of the trust. By considering some potential ethical pitfalls in advance, trustees can be better prepared to handle these situations.
Certain duties are imposed on trustees by Ohio statute. These include a duty of communication, which requires a trustee to "keep the current beneficiaries of the trust reasonably informed about the administration of the trust and of the material facts necessary for them to protect their interests.” Trustees also have a duty of confidentiality, by which they are bound to "administer the trust in good faith, in accordance with its terms and purposes and the interests of the beneficiaries" and of course, as with Ohio law.
These ethical obligations are in many ways analogous to those that at… 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