Ohio Probate Lawyer Blog

Fiduciary Access to Digital Assets in Ohio

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 pa… Read More

Estate Planning for Separate Property

Something that is perfectly appropriate in one setting can be problematic in another. The casual outfit that is perfect for running errands could cost you a coveted job if you wore it to an interview, for instance. And the language used to describe property in your estate plan could, by the same token, cost you that property should you and your spouse later divorce. We certainly hope that divorce is not in your future, but if you came into the marriage with significant assets, or inherit assets during your marriage, you should ask yourself how you would feel about your spouse getting those assets in the event of a divorce. If the answer is, "not very good," you need to think about estate planning for separate property.

To understand separate property, you need to understand how property is divided in a divorce. In Ohio, as in most states, there are categories of property: marital and separate. Marital property is all property, real and personal, that is acquired by either spouse during the marriage, and any interest in such property. Marital property also includes most  income or appreciation on separate property that occurred during the marriage due to the contribution… Read More

Ethical Issues in Trust Administration

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 th… Read More

Five Things You Might Not Know About Your Revocable Trust

More property now passes outside probate when Ohio residents die than through the probate process. This is due to the increasing popularity of so-called "will substitutes to avoid probate, including trusts, and options such as joint ownership of property and "transfer-on-death" accounts. Revocable trusts, so called because they can be revoked while the creator (settlor) is alive and has legal capacity, are probably the most popular will substitutes. There is good cause for the popularity of revocable trusts; in addition to avoiding probate (which saves time and money for beneficiaries), they are less likely to be challenged in court than a will. Significantly, if the settlor of a living trust becomes legally incapacitated, the successor trustee named in the trust instrument can step into the settlor's shoes to manage trust assets. This avoids the need for the family to go to court to appoint a guardian or conservat… Read More

Revoking or Amending a Living Trust: What You Should Know

Living trusts are an increasingly popular estate planning tool because they allow for both control and flexibility: the creator (also called settlor or grantor) of the trust can use and control trust assets just as if they were in his or her own name during life; after death, assets in the trust pass seamlessly to named beneficiaries under the guidance of a successor trustee. An attractive feature of living trusts for many people is that assets in a trust do not need to go through the probate process. Another advantage of living trusts is the ability to change, or even revoke them, if the settlor wishes. Here's what you should know about revoking or amending a living trust.

When Should You Revoke or Amend a Trust?

Any major life event should prompt you to at least review your estate plan, and possibly to update it. Such events include marriage, divorce, the death of a spouse, and the birth or adoption of a child or grandchild, among others.

If you find your trust is no longer adequate for your needs, the question becomes: do you amend or revoke it? Unless your original purpose for creating the trust no longer exists, an amendment is probably preferable.… Read More

Identifying (and Proving) Undue Influence

Probate litigation is on the rise, in Ohio and across the United States. One possible reason for the uptick in cases is tied to the increase in divorce over the last several decades. More people divorcing means more people remarrying, which means children from a first marriage might be pitted against a stepparent or step-siblings when it comes time to inherit. Of course, there are other reasons there might be an fight over a will or trust. A close relative who receives a smaller inheritance because of a bequest to a friend or caretaker might be suspicious that that person exerted "undue influence" over the deceased. Much, if not most, probate litigation regarding the validity of a will or trust is based on claims of undue influence. Let's take a look at what is involved in identifying (and proving) undue influence.

Proving Undue Influence in Ohio

The same scenario could be looked at in two completely different ways. Let's say that Mary is an older woman with limited mobility whose only child, Jeff, lives across the country. He rarely visits Mary, though he calls once a week or so. Mary has a neighbor, Tim, who drops by regularly. He helps her with things like c… Read More

Why Transparency Matters in Estate Planning

You likely already understand how important it is to have an estate plan, especially if you have significant assets. You may even have a plan, carefully crafted in conjunction with your estate planning attorney to achieve your goals. There is one step you probably haven't taken, though: discussing your estate plan, and its context, with your heirs. Here's why transparency matters in estate planning, perhaps more than ever.

Your parents may not have discussed their estate planning with you, except perhaps in the most vague of terms, such as where to find their will when the time came. They may have felt uneasy telling you details of their estate plan, and you may have felt even more uncomfortable asking. In the not-too-distant past, money was not something polite people discussed, even among family.

But there may have been another reason for your parents' reticence: a confidence that when it came time for you to manage their estate, you would have the experience and presence of mind to do so. Ask yourself this: are your children prepared to manage the legacy you plan to leave them? If not, how do you plan to change that? The reality is that you cannot do so unless… Read More

Can a Trust Be Changed After its Creator Has Died?

Can a trust be changed after its creator has died? Unfortunately for beneficiaries, the answer is an almost certain "no." Let's talk about how trusts operate, and what that means for beneficiaries after the death of the trust creator, also known as the grantor, settlor, or trustmaker.

There are various types of trusts, but the most common and well-known is the revocable living trust, often just called a "living trust." Like all trusts, revocable living trusts involve three parties: the grantor; the trustee, to whom the trustee gives property to hold and manage; and the beneficiary, who benefits from the assets in the trustee's care. The trust instrument is the document that creates the trust, defines the rights and responsibilities of the parties, and sets the terms of the trust.

When someone makes a revocable living trust, they can occupy all three roles: grantor, trustee, and beneficiary. In most ways that matter, things are much the same as when the grantor owned the property in their own name. The grantor has complete control and use of the property in the trust, can make changes to the terms of the trust, and even end the trust altogether. The ability to ter… Read More

Protecting Your Home From Estate Recovery

Very few people are eager to go into a nursing home or assisted living. Yet, as we age, that level of care becomes a necessity for many people. If physical infirmity doesn't keep us from caring for ourselves, memory issues, such as Alzheimer's, may cause us to need long-term care. According to the United States Department of Health and Human Services (HHS), over 40 percent of people will need care in a nursing home at some point, either on a temporary or permanent basis.

As of 2015, the most recent year for which figures are currently available, the median cost of a private nursing home room in the Dayton, Ohio area exceeded $100,000 annually. This figure is unlikely to decrease in the future.

Given the likelihood of needing care and the expense of skilled nursing care, there is an overwhelming expense looming for many families. Some people who can afford it and qualify for it purchase long-term care insurance. Many people also consult an elder law or estate planning attorney about Medicaid planning, with an eye to reducing countable assets so that they can qualify, sooner, to have Medicaid cover the cost of a nursing home stay.

What many people do not co… Read More

What is a "No-Contest" Clause?

Making a will is an intensely personal undertaking, and it frequently happens that the testator (person making the will) decides on a distribution of assets that at least one heir is unhappy with. In those cases, or in situations where there is conflict among family members, the testator may be worried about someone contesting the will after his or death. Enter the "no-contest" clause, also called an in terrorem clause.

What exactly is a no-contest clause? Just what you might expect: a provision that if an heir challenges a will in court and loses, he or she will inherit nothing. Because challenging a will successfully is not easy to do, the presence of a no-contest clause may be enough to discourage an heir who is simply trying to grab a bigger piece of the pie or make trouble for estranged family members.

Of course, in order for a no-contest clause to be effective as a deterrent, there must be some risk involved in challenging a will. If an heir has been disinherited altogether, or left a nominal amount, it may be worth it from his or her perspective to challenge the will. The "teeth" of the no-contest clause lie in the provisi… Read More