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
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, any interested person (usually, but not necessarily, an heir) can apply to be ancillary administrator in any county in Ohio where property of the deceased person (decedent) is located.
As a practical matter, this almost always refers to real property. Personal property such as furniture, art, jewelry, cars, etc. in Ohio will probably be gathered by the personal representative of the estate in the state where the deceased lived, and dealt with in that state's probate co… 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.
Whether you need a probate lawyer to help with the estate of a deceased loved one, assist with a guardianship, or represent you in an Ohio probate dispute, you should make sure the attorney who represents you can meet your needs. But how do you choose a probate attorney?
You may not have the luxury of weeks or months to research and interview different attorneys, although you should certainly do as much research as you are able. Here are five questions to help you get to the bottom of things in the limited time you may have.
New attorneys may be very smart, diligent and responsive—all good traits. If you interview a newer attorney and are confident in their abilities, by all means consider retaining them. But remember that there is also no substitute for experience. Experienced Ohio probate attorneys are familiar with the practices of the local probate courts,… Read More
If you are serving as the executor or administrator of a loved one's probate estate, you may be wondering if you really need the assistance of a probate attorney. Strictly speaking, you are not required to have an attorney's assistance to probate an Ohio estate. But there are several reasons that you will likely need a lawyer's help.
If your concern is the expense of an attorney, there's good news: the cost of an attorney's services in probating an estate do not come out of your pocket, but out of estate funds. Furthermore, the services of an attorney can actually save an estate money by making sure estate business is handled properly the first time around.
If the estate includes real estate, such as a house or rental property, an attorney is essential.
If you need to probate an estate that conta… Read More
A probate lawyer's primary function is to advise the personal representative of a deceased person's estate in the administration of the estate. Whether or not the deceased person (decedent) had a will, there are many legal requirements that must be followed in handling the estate. The personal representative (sometimes also called an executor or estate administrator) has many responsibilities and is charged with protecting the rights of both creditors of the estate and heirs.
Most personal representatives are family members who are not terribly familiar with probate law. The law recognizes that, for this reason, the services of an experienced probate attorney are a benefit to the estate, and the attorney's fees are paid from estate funds, not the personal representative's.
The probate attorney guides the personal representative through every step of the Ohio probate process, which includes:
If a loved one recently passed away, having named you personal representative (executor) of his or her estate, your first task should be to choose a probate attorney to guide you through the Ohio probate process. You may also be looking for a probate attorney if the deceased's will did not name an executor, if the named executor is deceased or otherwise unavailable, or if you believe the current executor is not carrying out his or her duties.
Knowing you need a probate attorney is one thing; selecting and retaining one is another. There may be a sense of urgency, but it's worth taking the time to be sure that your probate attorney has the knowledge of Ohio probate law and the experience in local probate courts to efficiently and effectively guide you through the probate process.
This article assumes that you are the personal representative of the deceased person's (decedent's) estate, but these guiding principles are relevant no matter what your reason for seeking a probate attorney.
First and foremost, probate work should be a significant part of the attorney's practice, not just something they do to help ou… Read More