Do I need an attorney to complete forms or to represent me in a proceeding filed in Probate Court?

A person is allowed to represent himself or herself or proceed "pro se" in a proceeding filed in Probate Court. However, under Ohio law "pro se litigants are bound by the same rules and procedures as those litigants who retain counsel. They are not to be accorded greater rights and must accept the results of their own mistakes and errors." Meyer v. First Nat. Bank of Cincinnati (1981) 3 Ohio App. 3d 209. Therefore, the Court strongly recommends that all persons appearing in Probate Court and especially those named as a party in a civil action retain an attorney to represent them.

Do I need a will?

Everyone should have a will. A properly drawn and executed will assures that after a person dies, that person's property, after payment of valid debts and expenses, will be distributed as the person wants it to be distributed. If a person does not have a will, after their death, their property will be distributed according to Ohio's Statute of Descent and Distribution.

By using a will, a person can choose who will be appointed by the Probate Court to take charge of administering their estate and can also choose who they want to become guardian of their minor children.

A person should review their will periodically with an attorney in order to keep the will up to date.

Is the adoption process the same for all types of adoptions?

No. Packets of adoption forms which reflect some of the differences in the process can be obtained at the Probate Court or can be downloaded from the forms section of this website.

Do I need an attorney to file an adoption petition?

Yes, in most cases. Ohio law requires that "a person seeking to adopt a minor shall utilize an agency or attorney to arrange the adoption." The adoption process involves the preparation and filing of numerous legal documents. Preparing many of these documents requires an understanding of the application of the law to a particular set of facts. Giving legal advice and preparing documents which require legal knowledge not possessed by ordinary lay persons involves the practice of law. Ohio law forbids the unlicensed practice of law by all persons, including Probate Court personnel.

How long does it take to complete the adoption process?

Most adoptions filed in ButlerCounty are finalized within ninety days after the filing of the petition to adopt. In certain cases the final decree of adoption can not be issued until six months have passed from the filing of the petition. In a case in which the adoption is contested, the process may take longer.

What is a "Putative Father"?

Under Ohio law, a "putative father" is a male who may be a child's father, but who is not married to the child's mother on or before the date that the child is born, or who has not established paternity of the child in a court proceeding before the filing of an adoption petition for the child.

If you believe you may be a putative father, and if you wish to be notified of an adoption proceeding involving a child of whom you are, or may be, the father, you should complete the Putative Father Registration form (JFS 01694) and return it to the Ohio Putative Father Registry office. See the link to their website on the Adoption page of this website.

What is a foreign re-adoption?

For children born in foreign countries whose adoptions have previously been finalized in the country of the child's birth, Ohio law authorizes a re-adoption process that replaces the foreign decree of adoption with a decree issued by a Probate Court. The foreign re-adoption process includes the filing of a certified copy of the foreign adoption decree, an English translation of that decree, and a copy of INS Form 171(H) from the U. S. Department of Justice, Immigration and Naturalization Service. A packet of forms for a foreign re-adoption can be obtained from the Probate Court or can also be downloaded from the forms section of this website.

What is an assessor?

An assessor is a person who has completed state-mandated education programs which includes courses on adoption placement practice, federal and state adoption assistance programs, and post-adoption support services, and has been certified by the State of Ohio to perform the duties of an assessor in adoption proceedings.

What does an assessor do during an adoption proceeding?

In an adoption proceeding in which the person to be adopted is a minor child, an assessor conducts a home study for ascertaining whether a person seeking to adopt the minor child is suitable to adopt. The assessor files a written report of the home study with the Probate Court. The written report includes the opinion of the assessor as to whether the person who is the subject of the report is suitable to adopt the minor.

Does an assessor do anything other than conduct a home study?

In some adoptions, an assessor meets with a biological parent prior to that parent's execution of a consent to the adoption in order (1) to provide the biological parent with a copy of written materials about adoption, (2) discuss with the biological parent the adoption process and ramifications of a parent consenting to a child's adoption, and (3) provide the biological parent the opportunity to review the materials and to ask questions about the materials and related matters.

After an adoption is finalized, how can I get a new birth certificate for the adopted person?

For adopted persons born in Ohio or in a foreign country, new birth certificates are obtained from the Ohio Department of Health, Bureau of Vital Statistics. Upon receipt of a completed Certificate of Adoption (HEA Form 2757), the Bureau of Vital Statistics will seal the original birth certificate of the adopted person and issue a new birth certificate listing the adoptive parent(s) as the parent(s) of the adopted person.

What are the costs to file?

COST DEPOSIT FOR CIVIL ACTIONS EFFECTIVE 08/02/2010

Concealment of Assets	$150.00
Declaratory Judgment	$150.00
Determination of Heirs	$150.00
Presumption of Death	$150.00
Sale of Real Estate	$150.00
Validity of Will	$150.00
Will Construction	$150.00
Will Contest	$175.00

*Additional costs due when action is completed. Please call the cost clerk to determine amount due (513) 887-3293.

What is a Concealment of Assets?

Concealment of Assets [2109.50-2109.56] - A complaint brought against any person by any interested party suspected of having concealed, embezzeled or conveyed away assets of the decedent.

What is a Power of Attorney?

A power of attorney is a written authorization for an agent to perform specified acts, either personal (health care) or estate (property) on behalf of a principal.

Types of Power of Attorney

Durable: A Power of Attorney in which the powers granted remain in effect in the event of the grantor's incapacity or on being adjudged incompetent.

Springing: A Power of Attorney in which the powers granted become effective when the grantor becomes incapacitated or is adjudged incompetent.

Health Care: A durable Power of Attorney that may be used to authorize health care decisions in the event of incapacity.

What is Conservatorship?

A conservatorship is a voluntary trust relationship using guardianship laws and procedures as its basis, in which one party, known as the conservator, acts with Court supervision for a competent, physically infirmed adult, who is called the conservatee.

Who chooses the Conservator?

A conservatorship is based on the consent of the person for whom the conservatorship is to benefit. Thus, the conservatee decides who will serve as conservator, and what property and powers of the conservatee will be included in the conservatorship. In addition, the conservatee decides which of the guardianship duties and procedures the conservator follows and the Court enforces.

What is the Court's Role?

After a petition is filed, and the matter heard, the Court will determine if the petitioner is infirmed, the petition is voluntary, and the conservator is suitable. If the petition is granted, the Court, while the conservatorship exists, will apply the laws and procedures of Ohio pertaining to guardianship, except those excluded by the conservatee.

How is the Conservatorship terminated?

A conservatorship is terminated by judicial determination of incompetency, the death of the conservatee, the order of the Probate Court, or the execution of a written termination notice by the conservatee.

What does disinterment mean?

Disinterment means to have a body exhumed and/or moved from one burial place to another.

May an administrator or executor of an estate transfer a parcel of real property subject to a mortgage to an estate beneficiary without the property being sold to pay the mortgage?

R.C. 2117.29 provides: " When the only debts of an estate remaining unpaid are secured by liens on property of the estate, the devisees, legatees, or heirs entitled to receive such property may be permitted to take the same subject to such liens, if all the lienholders consent and waive recourse to all the other assets of the estate in the event such property so taken is insufficient to pay the debts secured by such liens."

What is a Probate Estate and why do I need to open one?

An estate is the process through probate court in which an executor, administrator or commissioner (otherwise known as the fiduciary) is given legal authority to collect and preserve the assets of a deceased person. The probate estate provides for the payment of outstanding debts, payment of taxes and the distribution of remaining assets to the persons entitled to them under the decedent's Will or by law. The estate of the decedent includes all property that he or she owned at the time of death and it is up to you to determine what must be included in the probate process.

What is Probate?

When an Ohio resident dies owning property whether it is real estate, motor vehicles or cash it must be determined who will receive the property. Generally, if property was held soley in the name of the decedent than a legal process must be started to determine the nature of the decedents assets and debts, determine and pay any state or federal taxes if required and to carry out distribution of the remaining assets according to the decedents Will or the laws of Ohio if the decedent died without a Will. When preparing a Certificate of Transfer (Form 12.1),

What is the generally accepted way to refer to an inter vivos trust that is the distributee of a parcel of a decedent's real property?

When preparing the Certificate of Transfer (Form 12.1) to reflect a distribution of a parcel of decedent's real property to an inter vivos trust, the name of the current trustee should be named along with the name of the trust and the date the trust was created, e.g., "John Doe, Trustee U/A Trust of James Doe dated 01/01/2001." This way of designating the inter vivos trust in the Certificate of Transfer is consistent with the requirements of the Memorandum of Trust that must be recorded concerning the inter vivos trust pursuant to R.C. 5301.25.5.

What is a Probate Estate?

A probate estate is a legal proceeding provided for by Ohio law to determine the assets of a deceased person who was an Ohio resident at the time of death, the value of those assets, and the distribution of those assets to the persons entitled to them by law.

Why is Probate Estate Necessary?

A probate estate is necessary to protect and conserve the assets of a decedent for the heirs, creditors, and other persons interested in an estate. The probate estate will provide for the payment of outstanding debts, the payment of taxes, and the distribution ofthe remaining assets to the persons entitled to receive them under the decedent's will, or by law.

What Procedures are involved in Probating an Estate?

A probate estate is a legal proceeding provided for by Ohio law to determine the assets of a deceased person who was an Ohio resident at the time of death, the value of those assets, and the distribution of those assets to the persons entitled to them by law. The probating of an estate requires the appointment by the Probate Court of a suitable person to supervise the administration of the estate.The person appointed is called an executor, if named in a will, or an administrator, if there is no will. The executor or administrator may be an individual, a bank, or trust company.

What Costs are involved in Probating an Estate?

The costs involved in probating an estate are court costs, executor or administrator fees, attorney fees, and taxes. Court Costs are based on a schedule of charges established by the state legislature for each type of document filed in the Probate Court. A filing fee is required when you are opening an estate; the amount of the fee depends upon the type of estate you are filing. The fee must be paid in cash or check. Credit cards are not accepted at this time. Executor or administrator fees are established by the state legislature and are based on a percentage of the estate. The percentages are from 1% to 4%, depending upon the nature and value of the assets. Attorney fees are based on Local Rule. All taxes due on or after the death of the decedent must be paid by the executor or administrator of the estate. The taxes that must be paidare: real estate taxes, personal property taxes, local, state, and federal income taxes, and Ohio and federal estate taxes.

What is Joint and Survivorship property?

Joint and survivorship property is property held by two or more persons jointly; each party has equal rights of possession and income. On the death of one joint tenant, his interest transfer to the benefit of the survivor or the survivors in equal shares, without court proceedings. One joint tenant can sever the joint tenancy by conveying his interest to a third party. Joint and survivorship ownership may be useful in certain situations. However, court proceedings may be necessary to transfer clear title to the assets and to determine Ohio estate taxes. Tax consequences can be detrimental to the beneficiaries if joint and survivorship ownership is used imprudently.

What is Survivorship Tenancy?

Real estate may be owned by two or more persons in survivorship form so that upon the death of any one of them the title of the deceased person would pass to the survivor or survivors. Title may be transferred without court proceedings by filing an affidavit and death certificate with the County Auditor and Recorder.

What is Ohio Estate Tax?

An Ohio estate tax is levied by the State of Ohio on the estate (including both probate and non-probate property) of a decedent who was a resident of Ohio at time of death. An Ohio estate tax return must be filed when the value of the gross estate exceeds $200,000 for deaths in 2001 and $338,000 for deaths on and after 01/01/2002. If the value of the gross estate is less than $200,000 for dates of death in 2001, an Ohio estate Form 22 must be filed if there is real estate. An estate tax must be paid when the amount of the gross estate exceeds the $6,600 tax credit for 2001 or $13,000 for 2002 (generally equivalent to a $200,000 or $338,000 estate exemption), plus the amount of the administration costs, debts, and deductions allowed by law. A surviving spouse receives an unlimited marital deduction for dates of death on and after July 1, 1993 which can result in no estate tax on property passing to a surviving spouse.

What is a Guardianship?

A guardianship is an involuntary trust relationship in which one party, called the guardian, acts for an individual called a ward. The law regards the ward as incapable of managing his or her own person and/or affairs.

What is a Guardian?

A guardian is any adult person, association, or corporation appointed by the Probate Court to assume responsibility for the care and management of the person, the estate, or both, of an incompetent person or minor child. A corporation can only be guardian of the estate and not of the person.

What Are The Types of Guardianships?

Person and/or Estate: A guardian may be appointed either a guardian of the person, a guardian of the estate, or both. A guardian of the person has custody of, controls, and protects, the person of the ward. A guardian of the estate controls and protects the assets or property of the ward.

Limited: A guardian may be appointed with limited powers to make restricted or specific decisions of the ward. The ward retains all powers not granted to the guardian.

Emergency: An emergency guardian may be appointed if no guardian has been appointed and it is reasonably certain that immediate action is required to prevent significant injury to the person and/or estate of a prospective ward. The Court may appoint an emergency guardian for 72 hours.

Who Needs a Guardian?

A guardian may be appointed for either an incompetent or minor, which are defined by statute as:

Incompetent: Any person who is so mentally impaired as a result of a mental or physical illness or disability, or mental retardation, or as a result of chronic substance abuse, that he is incapable of taking proper care of himself or his property or fails to provide for his family or other persons for whom he is charged by law to provide, or any person confined to a penal institution within this state.

Minor: Any person under 18 years of age who has neither father nor mother or whose parents are unsuitable to have custody and tuition of such minor, or whose interests, in the opinion of the Court, will be promoted.

Minor Settlement: Natural parents do not have an inherent right to settle personal injury claims on behalf of a minor child. The Probate Court must authorize approval of such settlements. If the settlement exceeds $25,000, the Court will require the appointment of a guardian of an estate.

What Are the Rights of the Ward?

The prospective ward has the right to be present at the hearing for appointment of a guardian, to contest any application for guardianship, to have a record of the hearing taken, to have a friend or family member present at the hearing, and to be represented by an attorney. A prospective incompetent ward has the additional right to present evidence of a less restrictive alternative, and, if indigent and requested, to have an attorney and independent expert appointed at Court expense.

Who Chooses the Guardian?

Application for guardianship is filed in the Probate Court of the County of the ward's residence by an interested party, or on the Court's own motion.

Application must include a statement of the guardian's willingness to perform as guardian, a bond as required by law, and, in the case of a prospective incompetent ward, a statement of the ward's mental and physical condition from a treating physician, psychiatrist, or licensed psychologist.

The prospective ward, as well as the adult next of kin who reside in Ohio, are notified of an impending guardianship, the date and time of the hearing as prescribed by law. In the case of an incompetent proceeding, the notice and a statement of rights will be served on the prospective ward by a Court Investigator.

An investigation is conducted, in the case of a prospective incompetent ward, by a Court Investigator, which includes an interview with the prospective ward in order to assist the Court in determining the advisability of guardianship.

Formal hearing is conducted by the Judge or Magistrate to determine if a guardianship is necessary, the guardian is suitable, and the guardian understands his duties.

Why do I have to be appointed guardian when the amount is over $25,000?

If the gross settlement is over $25,000, then a guardian of the estate must be appointed to file the application. If the amount is less than $25,000 a parent or custodian may file the Application for Approval of the Settlement.

Does the Probate Court Have a Supervisory Role in the Guardianship?

The Probate Court is the Superior guardian, and all guardians must obey all orders of the Court. The Court exerts its supervisory authority through the following:

Accountings: A guardian of the estate must file a written account with the Court annually or biennially as to the income and expenses of the ward's estate.

Reports: A guardian of an incompetent ward must file a written report annually or biennially. The report concerns the status of, and continued need for, the guardianship.

Citations: If a guardian fails to timely file a report, inventory, or accounting, the Court may cite a guardian to appear, and may fine, reduce the guardian's fee, or remove the guardian.

Investigations: To determine if a guardianship is functioning properly, the Court may order an investigation by a Court Investigator, Law Enforcement Agency, Adult Protective Service, or other County Agency.

Prior Approval: The guardian must first obtain approval of the Probate Court before entering into contracts or leases, making improvement to real estate, mortgaging real estate, selling assets of the ward, or settling any personal injury claim for the ward.

Removal: The Court may, at any time, in the best interest of the ward, remove the guardian.

What are the Fees for Guardians and Attorneys?

A guardian's compensation and attorney's fees are set by Court rule, and must be approved prior to fees being paid.

How Do I Proceed With Terminating a Guardianship?

A Court order will terminate a guardianship upon the death of a ward, upon the ward being adjudged competent, or, in the case of a minor, upon reaching the age of majority (18). A Motion for termination of a guardianship of an incompetent may be filed 120 days after an appointment of a guardian, and once every year thereafter.

What is a Statement of Expert Evaluation?

The term "Statement of Expert Evaluation" refers to Standard Probate Form 17.1. It is a statement by an authorized person who has evaluated or examined the person alleged to be incompetent, for whom the establishment of a guardianship is being sought, or continued. Although collateral sources may be considered and included as a part of such an evaluation or examination, the evaluator or examiner must always meet face-to-face with the person being evaluated or examined.

Sup.R. 66 (A) provides â??all applications for the appointment of a guardian on the grounds of mental incompetency shall be accompanied by either a statement of a physician or clinical psychologist or a statement that the prospective ward has refused to submit to an examination.

When an original Application for Appointment of Guardian of Incompetent is filed, only Statement(s) of Expert Evaluation made by either: (1) a physician or (2) a clinical psychologist can be considered by the Court.

After a guardianship has been established, when the Guardianâ??s Report becomes due two years after the original appointment, the Statement of Expert Evaluation can then be made by (1) a physician , (2) a clinical psychologist, (3) a licensed independent social worker (LISW), (4) a licensed professional clinical counselor (LPCC), or (5) a mental retardation team, who must have evaluated or examined the Ward within three months prior to the date of the guardianâ??s report. This list of authorized professionals is found in R.C. 2111.49 of the Revised Code.

No other type of treatment professional, including mental health or psychiatric nurse practitioners, licensed social workers, registered nurses, case managers, treatment coordinators, or any similar professional persons, no matter how talented or knowledgeable such persons may be, are authorized by Ohio law to complete a Statement of Expert Evaluation.

Marriage License Instructions

APPOINTMENTS ARE PREFERRED – WALK INS ARE WELCOME THOUGH APPOINTMENTS WILL HAVE PRIORITY

Fee

The fee for obtaining a marriage license is $60.00, payable by cash or credit card.

Who May Apply?

All males and females age eighteen years or older, not nearer of kin than second cousins, and not having a husband or wife living, may apply for a marriage license.

Minors

If both persons to be joined in marriage are the age of seventeen years, they may be joined in marriage only if the juvenile court has filed consent to the marriage under section 3101.04 of the Revised Code.

If only one person is the age of seventeen years, that person may be joined in marriage only if both of the following apply:

1. The juvenile court has filed consent to the marriage under section 3101.04 of the Revised Code.
2. The other person to be joined in marriage is not more than four years older.

The juvenile court is responsible for determining consent and when the juvenile court files consent to marriage pursuant to the juvenile rules, the court shall also issue an order regarding each party to the marriage who is seventeen years of age. The court order shall specify that the party has the capacity of an eighteen-year-old person as described in section 3109.011 of the Revised Code.

The Probate Court cannot issue a license for a minimum of fourteen days after the Juvenile Court signs the consent.

Information Required

The applicants must supply to the Court their current address, their current age, their birth date, place of birth, the name of their father, the maiden name of their mother, and their Social Security number. If one or both of the parties have been divorced, a copy of the most recent divorce decree including the file stamp, case number, and court where the divorce took place must be submitted to the Probate Court at the time of application. In addition to the most recent divorce decree, all other divorce information must be included on the application – this includes the case number, date, and court where each divorce was granted. All applicants must present a valid U.S. or State Government issued photo I.D. (For example: Driver’s License, State I.D., Passport or Visa).

Divorce Information

If either applicant has been married before, then a certified copy of the Decree of Divorce (or Dissolution) must be presented. Note: the copy of the decree presented should have the proper stamps and signatures indicating that it was entered in the Court, we do not accept copies of separation agreements or custody papers. Decrees written in a foreign language must be translated into the English language with a certification from the translator that the translation is true and accurate. If either applicant is a widow or widower we do not require a Death Certificate.

The Court will not issue a marriage license within 30 days of any final entries including but not limited to divorce or dissolution entries pursuant to App.R. 4(A) which states in part that "... a party who wishes to appeal from an order that is final upon its entry shall file the notice of appeal required by App.R. 3 within 30 days of that entry."

Disabilities

No marriage license shall be granted when either of the applicants is under the influence of an intoxicating liquor or controlled substance or is infected with syphilis in a form that is communicable or likely to become communicable.

Residence Qualifications

If you are an Ohio resident then you must, by law, apply for a license in the county in which you reside if you intend to be married in this state.

One or both of the applicants must be a resident of Butler County for a marriage license to be issued in Butler County. The license is valid anywhere in the State of Ohio.

If the applicants are both out of state residents, they will need to apply for the marriage license in the county in which they are to be married. Out of state residents may only be married in the county in which they apply for a license.

Blood Test

No longer required.

Who May Perform Marriage Ceremony

An ordained or licensed minister of any religious society or congregation within this state licensed to perform marriages, a judge of a county court in his county, an authorized judge of a municipal court, the mayor of a municipal corporation in any county in which such municipal corporation wholly or partly lies, the superintendent of the state school for the deaf, or any religious society, in conformity with the rules and regulations of its church.

Time Limitations

In Butler County there is no waiting period between the date of application and the marriage. The license is valid for 60 days.

For a marriage that involves juvenile consent, when the Juvenile Court files consent to marriage pursuant to Juvenile Court rules, the Probate Court may issue a license not earlier than 14 days after the Juvenile Court files consent under 3101.14.

Change of Name

It is the newlywed’s responsibility to see that the appropriate agencies are notified. This includes among others, businesses and stores with whom he / she has credit accounts, banks where he / she has checking and savings accounts, the Social Security Administration, and the Bureau of Motor Vehicles to see that his / her driver’s license is changed.

Corrections

All applicants must check their marriage license prior to leaving the Court in order to ascertain that all the information is correct and no errors have been made.

If you have further questions or would like to schedule an appointment to obtain your license, you may contact the Marriage License Bureau at 887-3300.

The marriage instructions in both, English and Spanish, are available on this website.

The form can be completed and submitted online or printed and brought to the Court at the time of your appointment.

Updated July 20, 2021

How do I get a new driver license to show my new name since I have recently been married?

You will need to take your driver license, marriage certificate and current Social Security card into a Deputy Registrar office and purchase a new license with the name change. The new license can be issued only after the wedding has taken place. For more information you may visit the Ohio BMV website at www.BMV.Ohio.gov.

After I am married, how do I change the name on a Social Security card?

You will need to complete an Application for a new Social Security card, and then take or mail your completed application and a certified copy of your Marriage Abstract (which you may obtain from the Probate Court) to your local Social Security office. For more information you may visit: http://ssa-custhelp.ssa.gov/app/answers/detail/a_id/315/~/change-a-name-on-a-social-security-card.

Who Needs a Guardian?

Natural parents do not have an inherent right to settle personal injury claims on behalf of a minor child. The Probate Court must authorize approval of such settlements. If the settlement exceeds $25,000, the Court will require the appointment of a guardian of an estate.

Why does someone have to be appointed guardian when the amount is over $25,000?

If the gross settlement is over $25,000.00, the law requires a guardian of the estate to be appointed and to sign the application for approval of the settlement. If the amount is less than $25,000 a parent or custodian may file the Application for Approval of the Settlement.

How Do I Proceed With Terminating a Guardianship?

In the case of a minor, upon reaching the age of majority (18) the guardianship will terminate as a matter of law. Funds held for the minor are to be released to the minor at that time.

What is a Testamentary Trust?

If the trust becomes effective after the death of the settlor, the trust is called a testamentary trust. Ohio law gives the probate court the exclusive power to direct and control the conduct of testamentary trustees.

What is a Living / Intervivos trust?

If the trust becomes effective during the lifetime of the settlor, it is called an intervivos trust. An inter intervivos trust is also known as a living trust. A probate court also has concurrent power with the other courts to hear any action involving an intervivos trust. In Butler County, if the probate judge appoints an intervivos trustee, the court retains jurisdiction of the intervivos trust and the trustee is obligated to report to the court.

What is a living trust?

A living trust is a trust that is funded with assets and that can be amended and revoked by the person creating the trust. The person creating the trust, often called the settlor or the grantor, typically retains all the benefits to the property placed into the trust. The grantor can also be the trustee in Ohio, although the grantor's spouse or a trust company also often serves as trustee. The terms of a living trust are established in a written agreement signed by the grantor and the trustee. A living trust can be funded with bank accounts, stocks and bonds, a home and other assets. The terms of the living trust should provide for the disposition of the property in the trust both during the life and following the death of the grantor.

What is the purpose of a living trust?

A living trust may have many purposes. A common goal is to avoid probate. Assets within a living trust will generally not be subject to the jurisdiction of the probate court, either while the grantor is living or following the grantor's death. Assets owned in individual name and not contractually payable on death will generally be subject to probate.

What are the advantages of a living trust compared to probate?

Compared to probate, there are many differences, but also some similarities in the manner in which property is administered in a living trust following the death of a grantor. Among the characteristics of administration of a living trust that a person may find desirable are:

Privacy: The terms of a living trust are contained in a private document, while the terms of a will, including beneficiary designations, become a matter of public record once the will has been filed with the probate court. In addition, other information filed with the court during the probate process, such as the inventory of the assets and the written account of all receipts and disbursements of the estate, also become matters of public record. The administration of a living trust is generally not made public.

Control: The absence of any requirements to file a will or any other reports with a court increases the independence and control of the trustee, relative to an executor.

Lower Costs: Some publications make extravagant claims about the extent of the costs of the probate process. The typical components of cost in the probate process are:

• Court costs
• Appraisal fees
• Executor's commissions
• Attorney fees

• While court costs will vary with the activity in the estate, presently a typical court range will be $150.00 - $225.00. A living trust would not bear these costs.
• Appraisal Fees will typically be incurred in probate for real property, and may be incurred for other hard to value assets, such as expensive artwork or closely held corporations. These costs would typically not be required by a living trust. If however, the decedent's assets are of such value that an estate tax return must be filed (which will often be the case), it may be prudent for the trustee of a living trust to secure appraisals of those assets to help establish value for estate tax purposes. Appraisals also aid in establishing the basis of the assets for federal income tax purposes.
• Executor's Commissions are set by state law and are based, generally, on a percentage of the value of the assets of the estate. At present, the commission varies between one percent and four percent of the value of the assets (combined with the income of those assets) depending on the nature, amount and title of the assets at death. However, surviving spouses and other family members often serve as executor and may waive these commissions. A trustee of a living trust is generally entitled to a fee for services performed similar to those performed by an executor, although the level of compensation is not set by law.
• An executor may hire an attorney to assist in the administration of a probate estate. Similarly, a trustee may hire an attorney to assist in the administration of a living trust following the death of the grantor. If the terms of the living trust do not require the preparation of an inventory or the preparation of accounts, as typically they do not, the attorney fess will generally be lower for services to the trustee because time related to probate filings will not be incurred. However, the cost of attorney advice and services with regard to income tax and estate tax issues is likely to be equivalent whether provided to the executor of a will or to a trustee.
• Distribution of assets to beneficiaries is usually delayed in probate because the executor is personally liable for claims of creditors left unpaid by the estate because assets have been distributed to beneficiaries. The executor is also personally liable for unpaid federal and Ohio estate taxes. The trustee of a living trust can also be held personally liable for unpaid estate taxes and, in some circumstances, unpaid creditors.
• Avoidance of multiple probate proceedings. Finally, if homes or other real property are owned in a number of different states, use of a living trust may be especially useful to avoid separate probate proceedings in two or more states.

What are the disadvantages of a living trust compared to probate?

Lifetime Effort. The implementation of a living trust is likely to be more time consuming and far more tedious than would be the case with only a will. The single most common defect in the implementation of a living trust, where the goal is to avoid probate, is the failure to transfer ownership and title of assets into the name of the trustee. Simply creating the document will not work, the assets must be re-registered, re-titled or otherwise validly transferred to the trustee of the living trust. Further, an individual needs to remain vigilant that all assets acquired after creation of the living trust are placed into the living trust. Otherwise, those assets may to pass through probate.

Lifetime Cost. While a living trust may have cost advantages relative to probate following death, a will generally has cost advantages relative to a living trust during an individual's lifetime. The costs associated with creating a living trust are generally more than those for creating a will. Also, the need for a will is not eliminated as it is often necessary to dispose of assets at death that may not have been transferred to the living trust during the grantor's lifetime. In addition, there are costs incurred in properly transferring assets to the living trust during lifetime. If the trustee is not the grantor or a member of the grantor's family, trustee fees usually will be incurred if the living trust is funded.

Absence of Court Review. The administration of a living trust will not be supervised by any court. While this avoids the paperwork burden and expense imposed by the probate process, persons creating a living trust should consider that the trustee they appoint will not be accountable to a judge for the honest and accurate distribution of assets unless a beneficiary were to bring a lawsuit.

Taxation Disadvantages. The Internal Revenue Code contains a number of income tax provisions that are more beneficial to estates than to living trusts operating after the death of the grantor. As examples, an estate is entitled to establish a fiscal year, whereas a trust must report on a calendar year. An estate is entitled to a personal tax exemption of $600.00 for each tax year whereas the living trust exemption is $300.00 in the case of simple trusts and $100.00 for complex trusts. Recent legislation allows a trust to be taxed like an estate if the trustee of a living trust elects to do so.

If the estate has substantial dollar value and is composed of a number of complex business entities such as partnerships or closely held corporations, there can be additional tax disadvantages to the use of a living trust. While a trust can hold S corporation stock up to two years following the grantor's death, an estate may hold the stock until the completion of administration. If it is possible that the estate (or living trust) could be held open for an extended period of years, either because of an anticipated dispute with the Internal Revenue Service or because of an intention to take advantage of an extended time period within which to pay estate taxes (provisions of the Internal Revenue Code allow deferral of a portion of the estate tax liability when a qualifying percentage of closely held business assets are included in the estate), the administration expenses incurred by an estate qualify for deduction for estate tax purposes over the course of the entire deferral period whereas administration expenses within the living trust would only be available for the three years following the filing of the estate tax return.

Is use of a living trust the only way to avoid probate?

No. Assets that are owned jointly with others with rights of survivorship will pass upon death to the survivor by operation of law and will not be probate assets. However, care should be exercised before creating a joint account, particularly with someone other than a spouse, because the joint tenant will have rights to the joint property immediately on creation. Payable-on-death accounts and any assets that are contractually payable to beneficiaries, such as life insurance or pension benefits, will also avoid probate. Transfer-on-death registration for securities will also avoid probate.

Can I preserve assets in a living trust and still qualify for Medicaid?

No. The assets in a living trust are countable resources for purposes of Medicaid qualification. The assets in the living trust are treated just the same as if they were owned by the grantor.

Does having a living trust avoid challenges by my beneficiaries or heirs?

Disgruntled heirs or beneficiaries can challenge the validity of a living trust on legal grounds similar to those available for challenging a will. It may be alleged that a living trust is invalid because the grantor was incompetent at the time of establishing the trust or was unduly influenced by some person to establish the trust in a particular manner. Further, although the time period for challenging the validity of a will can be limited to three months, there is a much longer time period, (two years after the death of the grantor) under which the validity of a living trust, or the funding, amendment, or revocation of the trust can be challenged. The cost of defending the validity of a will, where the executor acts in good faith, is payable from the probate estate. It is not clear under Ohio law whether similar expenses in defending the validity of a living trust would be borne by the trust assets or by the trustee personally.

Will a living trust protect my assets against creditors?

Creditors are entitled to reach the assets of a living trust during the grantor's lifetime. Even where the trust is irrevocable, if the transfer is made to that trust while there are unpaid creditors of the grantor, creditors can generally reach the assets of the trust. Creditors may generally reach the assets of any trust to the extent that the grantor can enforce his or her own rights to trust assets. Upon the death of the grantor, creditors of the grantor may or may not be barred from enforcing claims against a living trust, depending on the circumstance of creation and administration of the living trust. A surviving spouse may not have elective share "forced inheritance" rights against a living trust as would be available against probate assets.

Will a living trust save income taxes?

No. The income of the living trust will be taxable to the grantor as if the trust did not exist for income tax purposes. Also, if the grantor is not the trustee or a co-trustee, then the living trust must obtain a separate taxpayer identification number and thereafter file annual tax returns.

Will I save estate taxes with a living trust, compared with a will?

No. It is a common misconception that estate tax savings can be achieved with a living trust, but not with a will. While use of a living trust will avoid probate proceedings, avoiding probate does not mean avoiding estate taxes. The assets in a living trust are part of a person's gross estate for estate tax purposes, just the same as probate assets. However, both the will and living trust, when properly written and with advice on the proper ownership of assets during lifetime, may include estate tax avoidance techniques that may save substantial tax dollars for the benefit of the family

Will a living trust help me while I am living?

A living trust may provide a structure for the management of a person's assets. This structure could be particularly useful if the trustee has investment expertise, such as a trust company, or the trustee retains investment counsel. The asset management function of a living trust can become particularly important if the grantor becomes incompetent or is otherwise incapable of handling financial affairs. If a living trust is in place, it is not then necessary to have a guardian appointed by the probate court to administer the now incompetent grantor's assets. On the other hand, the execution of a durable power of attorney, a document by which an individual (the principal) gives another person (the attorney-in-fact) the power to manage the principal's assets also avoids the necessity of a court guardianship.

If I decide a living trust may be right for me, how should I set one up?

If you decide that the use of a living trust may be right for you or if you are uncertain whether a living trust would be beneficial, it would be wise to consult with an attorney who is knowledgeable in probate, estate planning and tax matters. After obtaining information from you concerning the nature, title and value of your assets and liabilities, and following discussions with you concerning your goals for the use of your property during your lifetime and following your death, your attorney will be able to advise you in advance of the costs for consultation and, following the consultation, provide you with an estimate of legal and other expenses involved with the drafting and implementation of a living trust. The drafting of a living trust, like most other legal documents, requires professional judgment if the best results are to be ensured. A lawyer can help you avoid the pitfalls and help you choose the legal instruments and plan best suited for your situation.

What are the elements of a wrongful death claim?

Generally, the death was caused, in whole or part, by the conduct of defendant. The defendant was negligent, or strictly liable, for victim's death and there is a surviving spouse, children, beneficiaries or dependents and monetary damages have resulted from the victim's death

Who can file a wrongful death claim?

This will depend on your state's statutory language, but generally immediate family members (i.e. spouses, children and parents) can pursue a wrongful death claim (although minors until 18 years of age may require a "guardian ad litem" to represent their interests in court). In addition, some states may also extend the potential group of plaintiffs to grandparents, legal dependents, or members of the extended family.

Who cannot be sued?

A member of a family cannot sue another member for wrongful death.

When must a lawsuit for wrongful death be filed?

Each state has its own "statute of limitation," which defines the time frame during which a lawsuit must be filed. The time usually runs from the time of the victim's death, although some states may allow a lawsuit to proceed if the act which caused the death was not discovered until later (for example, the spouse of the victim does not discover until the following year that the victim's death was caused by the negligence of the treating doctor. In this case, the time frame to file a lawsuit may run from the date the spouse discovered the treating doctor's negligence, rather than the date of the victim's death).

A claim, even a valid claim, may be denied if it is filed after the statute of limitation has run. If you believe that you may have a valid claim for wrongful death, it is important that you speak with a qualified attorney at your earliest opportunity to preserve your rights. In addition to protecting your claim in court, early action may also help to preserve evidence, or locate witnesses, that you may need to win your case

What if the person dies before a lawsuit is brought?

In general, a "survival statute" preserves a victim's cause of action against a defendant after the victim dies. The estate or surviving dependents assume the victim's cause of action against the defendant until the matter is settled or tried.

In contrast, a wrongful death claim is a new cause of action which arises from the victim's death, and is brought by the surviving beneficiaries or dependents of the deceased victim.

For example, Victim, (married with two children) is injured in a severe automobile accident, caused by the negligence of Defendant. Victim is hospitalized and sues Defendant. Before Victim's case is heard, Victim dies as a result of the injuries sustained in the auto accident. Victim's surviving spouse may "step in" and pursue Victim's claim against defendant. The surviving spouse and children may also be able to pursue a separate wrongful death claim against Defendant for their damages incurred in Victim's death. While these claims are separate, they are frequently consolidated together by the court before trial.

Again, there are variations in each state as to wrongful death claims and survival statutes. Some states have consolidated these separate claims into one hybrid statute, while others have restrictions or conditions on one or both.

What kinds of damages are recoverable in a wrongful death claim?

The following damages may be recovered in a wrongful death action:

1. Immediate expenses associated with the death (medical & funeral):
2. Loss of victim's anticipated earnings in the future until time of retirement or death;
3. Loss of benefits caused by the victim's death (pension, medical coverage, etc.);
4. Loss of inheritance caused by the untimely death;
5. Pain and suffering, or mental anguish to the survivors;
6. Loss of care, protection, companionship to the survivors;
7. General damages; and
8. Punitive damages.

Depending on the jurisdiction, some of the listed damages may be barred or restricted by statute. Also, some of the listed damages may be hard to prove and thus be considered too speculative by the court. As a result, they may be struck or restricted. Punitive damages may require a higher level of proof.

Depending on the jurisdiction, plaintiffs may be able to recover interest calculated from the time of death, the time the damages were incurred, or from the time of the filing of the lawsuit. Finally, most of the damages for future loss (such as the victim's anticipated earnings) will be reduced to "present value"