Ohio Estate Planning Legal Questions

Medicaid cannot take your life insurance policy while you are still alive. However, if your estate is the beneficiary of your life insurance policy and you receive long-term care Medicaid benefits, then Medicaid may take your death benefit proceeds to recover those costs. Thankfully, you can work around that by naming someone other than your estate as the beneficiary of your life insurance policy. What this means to you is as long as your mom named a different beneficiary for her policy and that beneficiary does not disclaim the gift, then the policy should never enter into mom's estate. And that means that Medicaid cannot use it to recover costs.  That being said, you need to be proactive about this issue and contact the Medicaid recovery representative assigned to moms case file and make full disclosure of this life insurance policy. ... Read More

I highly recommend against co-ownership.  There are issues with liability, gifting/ Medicaid, finances and taxes that can arise.  The two main ways that you can transfer property without probate are through the use of a Trust, or setting up the title to the asset to pass to a beneficiary via a transfer on death designation.  Keep in mind that you will probably want to ensure that your children recevie a step up in basis when they inherit the asset to reduce any capital gains tax that they may need to pay.  You may want to sit down with an estate planning attorney to review the specifics of your situation and advise you. Best of luck.... Read More

Without a Will the rights to the inheritance are governed by Section 2105.06 of the Ohio Revised Code. (link below)  The fact that the great granddaughter was living with your mother does not change any rights of inheritance.  If your brother is properly administering the probate estate is a whole other issue and is too complex for a quick answer on this forum.  If you're concerned about your rights, then I suggest sitting down with a probate attorney who practices in the county where the probate case has been opened. https://codes.ohio.gov/ohio-revised-code/section-2105.06 Best of luck.... Read More

The answer is going to depend on a number os factors and is too complex for a simple response on this forum.  In order to create a valid Will the person signing must have "testamentary capacity."  This is a relatively low standard.  Moreover, even if someone has good days and bad days, as long as they are having a "lucid interval" and can meet the standard for testamentary capacity at the time the Will is signed, the Will should be upheld.  All that being said, there may be some exploitation or undue influence concerns based on what facts you provided.  I highly recommend sitting down with a probate attorney in your area to review the situation in detail and advise you of your options. Best of luck.... Read More

In short, no.  A POA is only valid while the principal (person giving authority) is still alive.  From the facts provided it sounds like you are stuck going through probate for the real estate.  As for who gets the property, since there is no Will, the Ohio rules of descent and distribution determine who gets what. (O.R.C. 2105.06) https://codes.ohio.gov/ohio-revised-code/section-2105.06 You may want to sit down with an attorney to review your situation and assist you.  Administering a probate estate without legal counsel can be very difficult and time consuming. Best of luck.... Read More

I'm sorry for the situation you find yourself in.  An estate planning attorney can easily guide you through the process.  With all that you're dealing with it's certainly understandable to be a little confused.  Depending on what is needed you may have little to no out of pocket costs even from a private attorney. Best of luck to you and your family.   NOTE: Mr. Popp provides answers on this forum as a free public service.  No attorney-client relationship is formed by answering questions here.  As attorney's are generally prohibited from soliticing clients, the individual seeking advice must initiate direct contact with the attorney or firm of their choice for legal advice.... Read More

The facts you presented require a more detailed analysis in order to give you a clear answer.  Without more information you're going to get a "maybe."  The language of the deed matters, estate planning documents (if any) matter, timing matters, more specifics regarding lineage also matters.  Until these issues are cleared up nobody is going to be able to give you a definite answer.  I recommend sitting down with an attorney to review your case in detail so you know what you're dealing with. Best of luck.... Read More

There are a lot of moving pieces in the scenario you described.  Additionally, it looks like your question was cut off.  From what you describe, you really do need to retain a probate attorney to review your situation in detail and figure out a game plan.  I suggest finding an attorney in or near the County where your husband resided prior to his passing.  Every County has its own probate court with their own way of doing things. Best of luck.... Read More

Generally speaking, yes, everyone needs a Will.  While estate planning is an unpleasant subject to discuss, it's something that needs to be addressed.  If nothing is done you're stuck in the probate court for potentially a very long time.  You have no control over how your affairs are managed, who is involved, and who gets what.  You also have the ability to nominated a guardian if you have any minor or disabled children.  If nothing else, it will make a difficult time a little bit easier to get through. Best of luck.    ... Read More

Has the Will been probated yet?  Under Ohio statutes you have strict guidelines on how a Will is contested, and how long you have to file such an action.  Unless an asset is set to pass outside of probate (e.g. beneficiary designation, or joint owner with rights of survivorship), an asset which is owned by a deceased person cannot legally be sold until a probate estate has been opened and the Court has issued letters of authority to the administrator of the estate.  As Ms. Garrett suggested, you may want to sit down and discuss the situation with an attorney. Best of luck.... Read More

As Mr. Weiss said, there is no hard and fast deadline generally speaking.  However, timing can be a significant issue depending on the assets in the estate, any debts which may have been owed, or if your mother received state assistance prior to her passing.  I suggest you sit down with a qualified estate planner to review the situation and give you a more detailed answer.  ... Read More

The death certificate must be obtained.  In most states a small estate affidavit can be filed with the court and, when approved by a judge, used to access assets.  But to access medical records, your wife will have to apply to the court to determine heirship and appoint her the administrator.  Only the executor of a Will or, if there is no Will, the administrator of the estate, is entitled to these.... Read More

Like anyone else, you have a right to see the Will in the court records once it is filed for probate.  But there is no forced inheritance by children in the United States.  Your father had a legal right to not include you in his Will.  You get nothing.  The only exception, in some states, is for a child born after the Will was written when the Will refers to all the deceased's children in addition to naming those who had been born.... Read More

Only your grandmother can change your grandmother's Will.  Take the documents to a probate attorney who practices in the county in which your grandmother lived and died to see what can be done.   The approach depends both on how much time has elapsed and whether your mother changed your grandmother's Will or changed how she administered the estate as executor of that Will.... Read More

As executor, you are also responsible for filing your father's final tax return and for paying those creditors who come out of the woodwork.  As your probate attorney may have advised you, it can be hard to claw money back once it is gone.  You will be personally liable for these expenses if you cannot.  Please note that this would be only a partial accounting and an initial distribution.  There is no way for anyone on this listserv to determine if/when the house will sell, what the net proceeds might be and whether they are likely to cover anticipated and unanticipated future expenses. Beneficiaries all want "their" money the moment someone stops breathing.  That is no reason for the executor to wind up holding the bag.... Read More

A controlling interest is not the same as ownership.  Company B stock belongs to Company A, not to whomever may have a controlling interest in Company A.  (1) Company B shares are part of the overall appraised value of Company A. (2) Because Company B stock belongs to Company A, not to whomever may have a controlling interest in Company A, unless the operating agreement provides otherwise, Company A retains ownership. (3) The co-owners can use stock, rather than cash, to buy out the decedent's interest in Company A only if (a) the operating agreement so provides and (b) the decedent's estate is willing to accept stock instead of cash. Please hire a local probate lawyer experienced in settling estates involving small companies.   This is not a DIY project.... Read More

A handwritten will, sometimes referred to as a holographic will, is lawful in Ohio. However, the will must still undergo the formalities of a will to be valid, AND should you need to probate the will out-of-state, a minority of states will not accept a handwritten will. Best practices, even in Ohio where a handwritten will is allowed, is to have the will typewritten and then executed with the required formalities. As with typewritten wills, the will must be signed by the person making the will (the “testator”) or by some other person in the testator’s conscious presence and at the testator’s express direction. Yes, a will can be signed by someone else and still be valid. There also must be two competent witnesses, above the age of 18, to either the will signature or to the testator’s acknowledgment of the testator’s signature. The witnesses don’t actually have to witness the signing for the witness requirement to be valid, the testator simply has to tell him that the testator did, in fact, sign the will and show them the signature. Like a typewritten will, handwritten wills may be deposited in the office of the judge of the probate court in the county in which the testator lives. This can be done before or after the death of the testator, and with or without applying for probate of the will. A note of caution on handwritten wills, however. While the will may be valid, that doesn’t answer the question as to whether a court will allow the will in as a matter of jurisdiction. Just because it is handwritten doesn’t mean that you can avoid the normal rules of a court’s jurisdiction. A will shall be admitted to probate: (1) In the county in the state in which the testator was domiciled at the time of the testator’s death; (2) In any county of the state where any real property or personal property of the testator is located if, at the time of the testator’s death, the testator was not domiciled in this state, and provided that the will has not previously been admitted to probate in this state or in the state of the testator’s domicile; (3) In the county of the state in which a probate court rendered judgment declaring that the will was valid and in which the will was filed with the probate court. State ex rel. Lee v. Trumbull Cty. Probate Court, 83 Ohio St.3d 369, 372, 700 N.E.2d 4 (1998) (R.C. 2107.11 “addresses the jurisdiction of probate courts to probate a will”). So, yes, you can still have a handwritten will in the State of Ohio, it just has to comply with all of the other formalities of will execution. Recall best practices, though, in making the will. If you don’t have to have a handwritten will, don’t do it.... Read More