Ohio Probate Legal Questions

Do you disagree with the information provided in the notice or wish to object?  If so, then you should file a response.  If you do not have an issue with the documents that you received, then you do not need to do anything unless you have been asked to sign something and return to the executor/administrator/attorney.  If you feel that your interest is not properly represented, then you may wish to pay close attention to the documents that are filed, which may include checking the online docket or visiting the court in person, or even hiring your own counsel, so you can file exceptions or objections if necessary.  Keep in mind there are time limits for doing so. This response is general in nature and is not legal advice. No attorney client relationship is formed by it. Further, the response does not represent the opinions or views of LexisNexis or its affiliates companies. You may wish to consult an attorney for specific legal advice.... Read Answer

"Intestacy" is the term used when a person dies without a last will and testament.  If someone dies intestate, then his or her next of kin (i.e., family) receive the property according to the list found in Ohio Revised Code 2105.06.  If your father died without a surviving spouse, then his property will be divided among his 5 children.  It is possible, if everyone agrees, for some people to receive title to the house in exchange for either other property in your father's estate (such as a bank account) or the sibling "buying out" the other siblings.  If no one wants the home or can afford to purchase it, then the administrator (person appointed by the probate court to manage your father's assets) can sell the home to a third party and divide the proceeds among the beneficiaries, the five children.  Best wishes! This response is general in nature and is not legal advice. No attorney client relationship is formed by it. Further, the response does not represent the opinions or views of LexisNexis or its affiliates companies. You may wish to consult an attorney for specific legal advice.... Read Answer

Dear Anonymous: I am sorry you have experienced the loss of your mother and the illness of your sister. If your sister agrees, she could sign a resignation and you could apply to serve as successor executor. Since you indicated you are named in the will as the successor, this is likely to be a simple process assuming you otherwise meet the criteria to serve as executor. You can contact the probate court that has jurisdiction over your mother's estate to request the paperwork.  While it is possible for you to resign in the future and your sister serve as executor again, it is unlikely that the probate court will approve you and your sister continually switching roles.  It causes the financial institutions to lack confidence in who has authority and can impede the efficient closing of the estate.  Additionally, it is not in the best interest of the estate or beneficiary since each filing generates court costs.  You could also petition the court to appoint you as co-executors, which may give you the authority you need to help administer the estate.  Whether or not the probate court will allow co-executors, especially when the will does not name co-executors, is a subjective decision dependent on which county probate court oversees the estate. If your sister does not agree to resign, then you would need to decide if you believe an adversarial approach is necessary.  If your sister does not meet court deadlines and requirements then the probate court can remove your sister on its own motion. Best wishes. This response is general in nature and is not legal advice.  No attorney client relationship is formed by it.  Further, the response does not represent the opinions or views of LexisNexis or its affiliated companies.... Read Answer

The "residuary estate" means the part of a person's estate remaining after all debts, expenses, taxes, and specific bequests and devises have been satisfied. This means that the seven recipients of the residuary estate will receive whatever is left (if anything) after final debts are paid, and after all items of property are passed to those who were specifically named in the will to receive that property. The will does not override the beneficiary listings on the life insurance and payable on death (POD) accounts. If the beneficiary listings are otherwise valid, those accounts will pass directly to the named beneficiaries and will not become part of the residuary estate. I can only give you a general answer here. For more information specific to your situation, you should schedule an appointment with a probate lawyer. Tonya R. Coles, Attorney at Law Elder Law -- Estate Planning -- Probate www.tonyacoles.com... Read Answer

In Ohio, attorney fees for probate cases are set by law. The law varies by county on what a lawyer can bill the estate. In Franklin County (where I mainly practice) the lawyer must charge a "reasonable fee." If a majority of the beneficiaries agree in writing to the fee, the fee will generally be paid. If the beneficiaries do not agree, a hearing is scheduled for the court to decide if the fee is reasonable. In some counties, the attorney must bill a certain percentage of the total value of the estate. The percentage depends on the type of property (real estate, bank accounts, etc.) and the total value of the property. If the attorney bills a higher percentage than what is allowed, the excessive fees likely will not be paid. To get an accurate value of the estate, the court will require that some property be appraised. Real estate, antiques, and art collections are examples of property that will need to be appraised. Bank accounts, household furniture, and vehicles are examples of property that are not usually appraised. This is because those items usually have a value that can be easily determined (by bank statements, eBay or blue book value, for example). Tonya R. Coles, Attorney at Law Elder Law -- Estate Planning -- Probate www.tonyacoles.com... Read Answer

In Ohio, notice must be sent to certain people when an estate is opened in probate court. When a person dies leaving a will, notice must be sent to every person named in the will and to all next of kin (even if not named in the will). The notice is required so that everyone entitled to inherit, as well as those who would inherit if there was no will, are aware that the will is being probated. A waiver is different from notice in that by signing a waiver, someone is signing away a legal right to something. Generally, people who are not named in the will do not need to sign one. Assuming that the will is valid, they have no legal right to anything, so they have no rights to waive. However, there may be a specific reason why a waiver is required in your case. I suggest that you contact a probate attorney. The attorney can help you decide what steps you need to take to open the estate, and who needs to be notified. Tonya R. Coles, Attorney at Law Elder Law -- Estate Planning -- Probate www.tonyacoles.com    ... Read Answer

The answer to your question depends on the type of property in the estate. There is a difference between probate assets and non-probate assets. Non-probate assets include property that passes according to contract. Common examples are life insurance policies and investment accounts (such as annuities) with a named beneficiary, and joint bank accounts. Probate assets include everything else. Common examples are household items, vehicles, real estate and individual bank accounts. Because there is no beneficiary or transfer on death designee of probate assets, they can only be transferred through the probate court. That property will be transferred according to the terms of the will. You should make a detailed list of all the property in the estate. If all property can be transferred outright to beneficiaries or joint owners, then you likely will not need to probate the estate. If there are probate assets, you will need to probate the will. After you have made this list, you should schedule a consultation with a probate attorney. The attorney can help you make sure that all estate assets are accounted for, determine how the property should be transferred, and evaluate if there are any tax consequences related to the transfers. Tonya R. Coles, Attorney at Law Elder Law -- Estate Planning -- Probate www.tonyacoles.com... Read Answer

It is unfortunate that you are dealing with these difficult issues surrounding your mother's death. I can give you a general idea of your legal rights in this situation, but I strongly suggest that you seek the assistance of a probate lawyer. You raise several important issues, and a lawyer can help you determine what your legal rights are. A lawyer can talk with you in detail about your situation, and give you options for resolving these issues. 1. You have no automatic legal right to your mother's remains. However, your stepfather also has no automatic legal right them. If there is a dispute over who should keep them, you should first attempt to work out the dispute with your family. Mediation is a good way to do this. A mediator is a neutral party who will talk with everyone and try to work out a solution that works for everyone involved. Many courts have a mediation program that you can use at no cost. Check with the probate court in the county where your mother died to find out if they have a mediation program. If they do, they can advise you on what you need to do to sign up for the program. If no agreement can be reach, the other option is to file a court action. If you choose this option, a judge will decide who is best suited to keep your mother's ashes. Filing a court action can be expensive, and may not give you the outcome you want. You should try to work things out with your stepfather if at all possible. 2. Regarding your mother's will, you should contact your cousin, the lawyer. Ask if your mother kept her will in your cousin's office. If she did, the lawyer will give the will to the executor. The executor is the person named to carry out your mother's wishes as written in her will. If you cannot find the will, then your mother's property will pass to her heirs according to Ohio law. You can go to probate court to get your share of your mother's estate. You do not need to wait for your stepfather or anyone else to do this. You can apply as "administrator" of your mother's estate. The administrator is the person who gathers her assets, pays her final debts, and passes what is left to her heirs. Also, by opening the estate yourself, there is a possibility that whoever has your mother's will (if there is one) will come forward during the probate process. A probate lawyer can help you apply to administer the estate. Contact one who practices in the county where your mother died.   Tonya R. Coles Elder Law, Estate Planning, Probate www.tonyacoles.com  ... Read Answer

You do not give many details in your question, so I am assuming that you are concerned about what happens to your father's property if he passes away in Ohio without a will. When a person dies, that person's estate often needs to be settled in probate court. The person's "estate" consists of everything he or she owned at death. "Settling" the estate means gathering assets, paying final debts, and then passing what property is left to the people named in the will (if the person left a will) or to heirs (if there is no will). In order to settle your father's estate after his death, you will need to go to the probate court located in the county where he dies. If this happens in Ohio, because he does not have a will, your father's property will pass to his heirs according to Ohio law. In addition to going through probate in Ohio, you may also need to open an estate in Florida, depending on what your father owns at his death. If he owns real estate in Florida, only the probate court in Florida can allow that property to be transferred. In that case, you will need to probate his estate in two states. This is called "ancillary administration," or the process of distributing part of a deceased person's property in a jurisdiction other than that of the main administration, where the deceased person lived at death. You do not say whether or not your father is competent to make a will. If he is able to make a will, I suggest that you encourage him to hire an attorney to write one for him. By making a will, he can determine who will get his property rather than leaving it up to state law. He can also name a person who will be responsible for managing his estate through the probate process. If he has a will, it will make the probate process in both states much easier for your family. Tonya R. Coles Elder Law - Estate Planning - Probate tonyacoles.com  ... Read Answer

If your father dies without a will, Ohio law determines who gets any property that he left. In order to pass his property, a family member (who must be an Ohio resident) will need to file an application in probate court asking for permission to administer his estate. If that permission is granted, that person will be responsible for gathering your father's assets, paying his final debts, and passing any property that is left to his heirs. That person is called the administrator. As part of the application process, the administrator will need to post a bond with the court. The amount of the bond depends on the value of the estate. The bond is required as a guarantee that the administrator will not misuse the estate assets. The bond can be expensive, and everyone cannot get one because a major factor in getting one is a person's creditworthiness. If you father is able to make a will, you should encourage him to do so. By writing a will, he can make his wishes known. He can determine who his hard earned property should go to, rather than leaving it up to Ohio law. Also, he can eliminate the bond requirement by naming an executor in the will and stating that no bond will be required. The probate process is usually less stressful on the family when there is a will. Tonya R. Coles, Attorney at Law Elder Law - Estate Planning - Probate www.tonyacoles.com... Read Answer

If you do not already know who the lawyer is, it will be difficult to find the person. Most people have a drawer or cabinet where they keep important papers. Look through your mother's important papers. She may have kept the lawyer's contact information or business card there. You should also ask family members and friends if your mother ever mentioned to them the name of the lawyer she was working with. If you are able to find the lawyer, call the office to ask if your mother made a will with them. It is possible that your mother left the original will in the lawyer's office. If not, most lawyers keep a copy. The lawyer will release the original will or copy to the executor. If you cannot find the name of the lawyer, call the probate court in the county where your mother lived. She may have placed her will on file at court. If she did, the executor can request the will from the court. Also, if your mother was a churchgoer, contact her church leader. It is possible that she gave a copy of her will to her church leader. I hope that you are able to find the will. If you cannot find it, it cannot be probated. Your mother's estate will then pass according to Ohio law, rather than by what she had put in writing.   Tonya R. Coles, Attorney at Law Elder Law - Estate Planning - Probate www.tonyacoles.com  ... Read Answer

You do not provide much information in your question, but it appears from what you did write that you have an issue with the way that your uncle handled your mother's estate. As executor or administrator of the estate, you uncle has a duty to gather all of your mother's assets, pay any outstanding debts, and give what is left after paying debts to her heirs or the beneficiaries of her will, if she left one. If you believe that your uncle did not properly handle his responsibilities, you should contact a probate attorney to find out if you have any rights. Keep in mind that heirs/beneficiaries have a limited amount of time to raise any issues in court regarding how an estate was handled, so you should contact an attorney right away. Tonya R. Coles, Attorney at Law Elder Law - Estate Planning - Probate www.tonyacoles.com... Read Answer

Assuming that the will is valid, any property in your grandparent's estate will pass according to what the will says. If your father was named in the will, but died before his parent, then the will determines what happens to your father's share. Ask for a copy of the will, and take it to a probate lawyer for help in determining your rights. A few possible outcomes are: 1. If the will says that your father's heirs should inherit his share if he dies before his parent, then the heirs he left at his death will take his share. These heirs will the people named in your father's will (if he died leaving one), or his heirs according to Ohio law. 2. If the will says that your father's share should go to other people named in the will, that's what will happen. If his children were not named in the will, they will not inherit. 3. If the will does not say anything about what should happen if your father dies before his parent, then Ohio law will determine where his share goes. As you can see from my answer, the outcome depends on several factors. You should contact an attorney as soon as possible to discuss the matter and find out if you have any rights to your father's share.   Tonya R. Coles, Attorney at Law Elder Law -- Estate Planning -- Probate www.tonyacoles.com  ... Read Answer

You can seek a court order to compel the family member holding the will to bring it into court. You will need to seek this action in the probate court of the county where the person who made the will lived at his/her death. You should consult with a lawyer to discuss the matter. A lawyer will work through the details with you and help you decide on best course of action. Tonya R. Coles Attorney at Law Elder Law -- Estate Planning -- Probate www.tonyacoles.com... Read Answer

You can and should see another lawyer to write your new will or trust. If your current attorney wrote wills for you and your ex-wife together, then that lawyer cannot write a new will for you without first getting written permission from your ex-wife. To avoid any conflict and to avoid notifying your ex-wife that you are making a new will, you should seek the help of a lawyer who has not previously represented you as a couple. When you write your new will or trust, it will replace the old one. Even so, you should destroy the old one after signing the new one.   Tonya R. Coles Elder Law -- Estate Planning -- Probate www.tonyacoles.com... Read Answer

Generally, a will done in one state is valid in the next state. However, all wills should be reviewed every few years to make sure that they still meet your needs. This is a good time for your mother to review her will. Good reasons for updating a will include: (1) beneficiaries need to be removed or added; (2) there has been a major change in financial status since making the will; (3) the executor needs to be changed; (4) she has married, divorced, or been widowed since she made her will; and (5) her children were minors (or some were not born) when her will was made, but they are now adults. The updated will should be drafted by an attorney in Ohio.   Tonya R. Coles, Attorney at Law Elder Law -- Estate Planning -- Probate www.tonyacoles.com  ... Read Answer

By filing a bill in equity, you are making a claim against the inheritance. You are claiming that the executor of the estate should pay you what you are owed before (s)he pays any inheritance to the sole heir. Your chances of recovery depend on several factors, including (1) the amount of assets in the estate, (2) the amount of debts the estate must pay, and (3) any other claims filed against the inheritance that have a higher priority than yours. You should contact a probate attorney as soon as possible to discuss your situation, and to determine if filing a claim is in your best interest.   Tonya R. Coles, Attorney at Law625 City Park AvenueColumbus, Ohio 43206614.228.6600www.tonyacoles.comElder Law -- Estate Planning -- Probate  ... Read Answer

  Regarding an application for a name change, the Ohio Revised Code Section 2717.01 states in part, "Notice of the application shall be given once by publication in a newspaper of general circulation in the county at least thirty days before the hearing on the application. The notice shall set forth the court in which the application was filed, the case number, and the date and time of the hearing." Each court determines the newspaper(s) where this publication must occur. I do not know exactly why the Wayne County Probate Court requires that you use the Wooster Daily Record, but perhaps one reason is cost. Notice can be expensive in a large paper like the Akron Beacon Journal. It will cost you much less to publish your notice in the Wooster Daily Record, because fewer people read it. By choosing the smaller paper, the court is helping to keep your court costs lower. In Columbus, where I mainly practice, the vast majority of notices are published in a small paper called The Daily Reporter. If my clients were required to use The Columbus Dispatch (Franklin County's largest paper), some would not be able to afford it.  ... Read Answer

It is common for people to die leaving debts, such as medical, credit card, and mortgage obligations. When you die, your family members do not inherit your debt. However, if you have any debts that are in your name and someone else's name, the survivor is responsible for paying those obligations. It is likely that your estate will go through probate after your death. Probate is a legal proceeding to administer property owned by someone who has died. As part of the probate process, your final debts and taxes are paid and anything left in your estate goes to those entitled to receive it under your will or Ohio law.... Read Answer

A will may be changed as often as the person who wrote it wishes. People decide to change wills for various reasons, and most people put a lot of thought into what should happen to their property before they put it in writing. You stated that your mother is still living. Perhaps you should have a conversation with her about her reasons for changing her will. It may be easier for you to accept her decision if you understand her reasons for making the change.... Read Answer