» Probate Process

Guide to Final Distribution of Estate Assets

One of the responsibilities of the personal representative of an estate is the final distribution of estate assets to the heirs or beneficiaries of the deceased. Before a final distribution of estate assets can happen, however, there are many other steps that must be taken. If you are serving as the personal representative (also known as the executor or administrator) of a decedent’s estate, it is critical to fulfill those other responsibilities before making an estate distribution.

The probate/estate administration process can be a difficult one. Typically, the person appointed as personal representative is grieving the deceased, as are the heirs or beneficiaries. Many personal representatives have never served in that role before, and may be confused and frustrated by probate court requirements. In addition, heirs may not understand why it is taking so long to settle the estate, and in some cases, may unfairly suspect the personal representative of wrongdoing.

For many estates, it is a good idea for the personal representative… Read More

What Happens if I Find More Assets After the Estate is Closed?

As probate attorneys, one of our duties is to guide the personal representative of an estate through their many responsibilities. One of the first things a personal representative must do is identify all assets belonging to the decedent’s estate, safeguard those assets, and inventory them. That allows all interested parties to know what property is part of the estate. After the estate’s debts are paid, remaining assets are distributed to heirs or beneficiaries. But what happens if there are assets found after the estate is closed? After an estate is closed, can it be reopened?

These questions are not uncommon. Few people have a thorough list of all the property they own, and a deceased person (decedent) may own assets of which their personal representative is unaware. There may be a safe deposit box at the bank, or money owed to the deceased may be discovered. Whatever the source, those assets of the estate need to be properly distributed. An experienced probate attorney can help.

Once an Estate is Closed, Can it Be Reopened?

An estate is closed after its legitimate debts have been paid and any remaining assets are distributed according to law or the… Read More

What Happens if Creditors Aren’t Notified of a Probate Case?

You can’t take it with you—and in addition to leaving your money behind, chances are you’ll leave some unpaid bills behind, too. What happens to your debts after you die?

The short answer is that they get paid out of your probate estate according to a priority established by Ohio law. Creditors must present a claim within 6 months of the date of death, after which time the executor or administrator of the estate has thirty days to reject or allow the claim.

In many states, the executor or administrator of the estate is required to give notice to creditors of the deceased. If there are known creditors, they must be notified directly, while an advertisement is placed in legal newspapers to provide notice to unknown creditors. However, in Ohio, there is generally no such notice requirement. That said, there are a few exceptions to that rule.

When Must an Ohio Personal Representative Make a Notice to Creditors of Probate?

The first situation in which an Ohio personal representative must publish n… Read More

Advantages of Probate Mediation

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

When Should a Personal Representative Be Removed?

When an Ohio resident dies, a personal representative must be appointed to administer their estate. If there was a will, the probate court often appoints the executor named in the will. If the deceased did not have a will, the court will appoint an administrator (typically a close family member) to serve as personal representative of the estate.

The personal representative is a fiduciary — someone obligated to act in the best interests of another party, rather than their own. In the case of a decedent’s estate, this person is obligated to follow the law and act in the best interests of the heirs or beneficiaries of the estate. Most representatives take their fiduciary duties very seriously. Sometimes, though, an executor or administrator commits a breach of fiduciary duty, or there is so… Read More

What to Do When a Beneficiary is Living “Off the Grid”

These days, it seems you can find people, even those you haven’t seen in years, in a matter of moments. A quick internet search can find that long-lost friend or second cousin, yielding social media accounts, emails, phone numbers and even physical addresses. It may feel as if it is impossible to escape the sticky tendrils of the aptly-named “world-wide web.” Even in death, digitized Social Security death records, ancestry sites, and websites like findagrave.com mark a person’s existence and passing.

Most people, when creating or updating a trust, don’t anticipate the possibility that one of their beneficiaries will simply disappear without a trace. Yet this very outcome happens with disturbing frequency. Online trails may go cold, and there may be no conclusive evidence that a beneficiary has died. What happens to a trust when a beneficiary is living off the grid, or perhaps not living at all?

How Does a Beneficiary Disappear?

It may seem impossible that someone who is the beneficiary of a trust would walk away from thousands or hundreds of thousands of dollars,… Read More

The Unclaimed Funds Act of Ohio to Bring Help to Closed Estates with Unclaimed Funds

Administering an Ohio estate can be challenging for personal representatives, and there is usually a sense of relief and satisfaction when the process is successfully completed. But what happens when an estate is closed, and it is later discovered that the state of Ohio was holding unclaimed funds for the deceased? Does the estate need to be reopened?

Historically, the answer to that question has been yes, resulting in additional paperwork, effort and expense, sometimes to recover only a relatively small amount of money. Fortunately, House Bill 270, which was passed unanimously by the Ohio House, may change all that, making the process of reclaiming previously unclaimed funds on behalf of an estate much more straightforward.

The bill, which makes multiple changes to the Unclaimed Funds Act of Ohio, creates a procedure that streamlines the process for small or closed estates to claim funds that belonged to a decedent and which lay unclaimed with the state. The proposed Ohio Revised Code 169.052 is expected to pass the Senate without difficul… Read More

Death and Taxes: What Happens to a Tax Refund After Death?

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

Ancillary Probate in Ohio: What is It, and Can You Avoid It?

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

Ohio HB 595: What's New in Ohio Probate Law

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