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Is Your Power of Attorney Too Old? Ohio Law v. Bank Policy

Fri, 19 Jun 2026 13:54:03 GMT

Charles signed a durable financial power of attorney (“POA”) more than a decade ago, naming his son, William, as his agent. As Charles' cognitive abilities gradually declined, William began handling his father's banking and financial affairs, including paying bills and managing accounts.

Recently, William visited Charles' bank to transfer funds needed to pay ongoing expenses. When he presented the POA, a new bank clerk reviewed the document and informed him that it was "too old" and that the bank would require a more recently executed POA before allowing the bank transaction.

This posed a big problem since Charles no longer had the mental capacity to execute a new POA. Is the bank correct? Does a POA expire simply because it was signed many years ago? And what options does an agent have when a financial institution refuses to accept an older, but otherwise valid, POA?

In Ohio, a durable power of attorney does not become invalid simply because it was signed many years ago. A properly executed financial POA may remain fully effective for decades, provided:

The principal is still living;
The principal has not revoked the POA;
The document does not contain an expiration date or terminating event;
The purpose of the POA has not been completed; and
No other statutory termination event has occurred.

In other words, a durable financial POA does not expire merely because it is old.

Although Ohio law recognizes older powers of attorney, banks frequently request more recent documentation. This is usually a matter of internal risk-management policy rather than a requirement of Ohio law. Financial institutions may have concerns that the principal revoked the POA or executed a newer one naming a different agent. Since banks face potential liability if they allow an unauthorized person access to an account, older documents often receive additional scrutiny. To reduce uncertainty, a bank may request supporting documentation before accepting an older POA.

Ohio law specifically provides for an "Agent's Certification as to the Validity of Power of Attorney and Agent's Authority." This certification allows the agent to affirm, under penalty of perjury, that:

The principal is alive;
The principal has not revoked the power of attorney;
The agent's authority has not terminated;
Any required triggering event has occurred, if applicable; and
The agent is properly serving as a successor agent, if designated as one.

An agent's certification is often sufficient to address a bank's concerns. If the bank still refuses to accept the document, legal counsel may be able to assist. In many cases, financial institutions will accept an attorney's opinion letter confirming that the POA remains valid and effective.

When a bank demands a newer POA, it is important to understand the difference between the bank's internal policies and Ohio law. By providing the appropriate certifications, and, when necessary, obtaining legal assistance from a trusted attorney, agents can often secure recognition of a valid existing POA. If those efforts are unsuccessful, the most practical solution may be transferring the accounts to a financial institution with more reasonable POA policies. If you need legal support, Laribee Law, LLP is here to assist you.

Michael Laribee is a partner in the Medina law firm of Laribee Law, LLP. This article is intended to provide general information about the law. It is not intended to give legal advice. Readers are urged to seek advice from an attorney regarding their specific issues and rights.

A Landlord’s Duty to Maintain Safe and Habitable Premises

Thu, 16 Apr 2026 13:32:48 GMT

Keeping residential rental properties safe isn’t just good practice for landlords - it is required by Ohio law. Landlords of residential rentals have a statutory duty to maintain properties in a safe and fit condition that is suitable for habitation. They cannot simply collect rent while ignoring serious safety violations. The Ohio Landlord-Tenant Act sets forth the basic obligations related to the condition of rental properties. Landlords must do all of the following:

comply with applicable building, housing, health, and safety codes that materially affect health and safety;
make all repairs necessary to keep the premises in a fit and habitable condition;
keep common areas safe and sanitary;
maintain electrical, plumbing, heating, ventilating, and air conditioning systems in good and safe working order (when required to be supplied by the landlord); and
supply running water, reasonable amounts of hot water, and reasonable heat (unless the dwelling unit is individually metered and the tenant controls those utilities).

When a landlord fails to meet these duties, Ohio law provides tenants with structured remedies. Tenants are not allowed to simply withhold rent from the landlord until repairs are made. Likewise, tenants cannot simply move out of the premises.

The tenant must first give written notice to the landlord specifying the acts, omissions, or code violations that constitute the noncompliance. The tenant must deliver the notice to the person or place where rent is normally paid. After receiving written notice, the landlord must remedy the condition within a reasonable time (30 days or sooner depending on the severity of the issue).

If the landlord fails to correct the problem within the required time, the tenant may then do one of the following:

1. Deposit rent with the clerk of the municipal or county court instead of paying the landlord directly.

2. Apply to the court for an order directing the landlord to remedy the condition. The court will determine whether the landlord is in violation of the Landlord-Tenant Act, if the condition materially affects health and safety of the tenant, and whether the tenant gave the landlord proper written notice of the condition. Minor repairs, routine maintenance items, and cosmetic conditions do not qualify. If these requirements are met, the court may order repairs, authorize a rent reduction, or permit the tenant to use escrowed rental payments to make the required repairs. Generally, a court will not order complete rent abatement unless the premises is uninhabitable.

3. Terminate the rental agreement. Please note that a landlord may dispute the grounds for termination in court.

It is important to note that the tenant’s remedies are only available if the tenant is current with all rental payments under the lease. Also, these remedies are not available if the landlord owns three or fewer rental units and has provided notice of that fact to the tenant.

If you believe your landlord has violated the Landlord-Tenant Act, it is wise to consult with a trusted attorney to make sure all tenant remedies are available. Laribee Law, LLP is here to assist you.

Ohio's Homestead Exemption: Property Tax Relief for Seniors

Thu, 16 Apr 2026 13:28:25 GMT

Rising real property taxes are increasingly concerning older homeowners. For many retirees, higher tax bills are difficult to manage on fixed incomes. Fortunately, Ohio offers a measure of relief through the Homestead Exemption program.

The Homestead Exemption is a property tax reduction available to qualifying homeowners. It applies to primary residences and the surrounding land not exceeding one acre. Primary residences include single-family homes, units in a multi-family dwelling, and manufactured or mobile homes taxed as real property.

Essentially, the program reduces the taxable value of your home for tax purposes. If you qualify, the exemption reduces your home’s taxable value by up to $25,000 of the property’s true value. This results in a smaller annual tax bill.

To qualify for the Homestead Exemption, an applicant must be 65 years of age or older, or permanently and totally disabled. It is also available to disabled military veterans with a permanent, total service-connected disability and the surviving spouse of a peace officer, firefighter, or emergency responder who died in the line of duty or from a related injury or illness.

There is also an income cap for most homeowners to qualify. Currently, a homeowner’s total income must not exceed $30,000. “Total income” refers to the modified adjusted gross income of the owner and the owner’s spouse for the preceding tax year.

Homeowners must own and occupy the home as their principal residence as of January 1 of the year they file the application. The application is filed with the county auditor of the county in which the property is located. Typically, applicants need to provide proof of age or disability and income documentation with the application.

The county auditor must approve or deny the application within 30 days. If the application is approved, the county auditor will apply the reduction directly to the homeowner’s property tax records. The Homestead Exemption generally continues automatically in future years, provided the homeowner remains eligible. If the application is denied, the county auditor will provide a notice explaining the reason. Applicants then have the right to appeal the decision to the county board of revision within 60 days.

It is important to note that the Homestead Exemption does not transfer automatically if the homeowner moves. A new application must be filed for any new qualifying property. Also, homeowners must notify the county auditor if they later become ineligible.

Meanwhile, lawmakers in Ohio continue to debate expanding the Homestead Exemption. Recent proposals include increasing the exemption amount and raising income limits to include more homeowners. While no major expansion has been enacted, the discussions reflect a desire to address the financial pressure of property taxes on seniors. As rules and income limits for the Homestead Exemption may change, seniors who believe they may qualify—or who are unsure—should consult their county auditor or trusted attorney for assistance. Laribee Law, LLP is here to assist you.

Michael Laribee is a partner in the Medina law firm of Laribee Law, LLP. This article is intended to provide general information about the law. It is not intended to give legal advice. Readers are urged to seek advice from an attorney regarding their specific issues and rights.

Why an Estate Plan—Advice From an Estate Planning Lawyer

Wed, 07 Jan 2026 23:33:32 GMT

Have you ever wondered why so many people delay estate planning until later in life? Working with an estate planning lawyer is crucial for everyone—no matter your age or financial situation. Estate planning isn’t just about dividing assets after death; it’s about protecting loved ones, preparing for the unexpected, and making sure your wishes are respected. At Laribee Law, LLP, we help families create thoughtful and comprehensive estate plans that provide peace of mind today and security for tomorrow. Even if you’re young and just starting your family or career, establishing an estate plan can protect you and your loved ones from potential hardships. This article explores common misconceptions about estate planning, explains key documents, and highlights why partnering with a trusted estate planning lawyer is the best way to safeguard your family’s future.

Common Misconceptions About Estate Planning in Medina

Many people assume estate planning is only for the wealthy or elderly. This misconception often prevents families from addressing their plans. In reality, estate planning is important for everyone. Unexpected events—accidents, illnesses, or incapacity—can happen at any age, and without planning, families may face legal confusion, delays, or financial stress. Parents of young children need to designate guardians, and adults of any age should decide who will make financial or medical decisions on their behalf if they cannot. An experienced estate planning lawyer can explain why age is not a barrier and help make the process straightforward. Early planning ensures your family is protected and your wishes are clear.

The Essential Documents Your Estate Plan Needs

An estate plan is a comprehensive strategy consisting of several key legal documents. These documents work together to ensure your wishes are followed and your loved ones are cared for.

Wills

A will outlines how your assets should be distributed after your death. It allows you to name guardians for minor children and specify which family members, friends, or organizations inherit your belongings. Without a will, state law decides how your estate is divided, which may not reflect your wishes.

Trusts

Trusts are useful if you want to avoid probate or manage assets for beneficiaries like minor children or family members with special needs. They help keep your estate private and protect assets for future generations.

Powers of Attorney

A durable power of attorney permits someone you trust to handle your financial affairs if you become incapacitated, avoiding court-appointed guardianship.

Healthcare Directives

A healthcare directive, or living will, lets you specify your medical treatment preferences and appoint a healthcare proxy to make decisions on your behalf if needed. An estate planning lawyer ensures these documents are customized to your unique needs and comply with state laws, providing consultations to review or update your plan.

How Estate Planning Protects Your Family and Assets

Proper planning safeguards your family from uncertainty. Without legal documents, families may face probate—a public, lengthy, and costly process that delays asset distribution. Benefits include:

Avoid Probate: Trusts and planning tools can allow faster, private distribution.
Protect Assets: Shield property from creditors or mismanagement.
Provide for Loved Ones: Assign guardianships and ensure care for dependents.
Reduce Family Conflicts: Clear, legally binding documents minimize disputes.
Plan for Incapacity: Powers of attorney and healthcare directives manage affairs according to your wishes.

Families who engage with Laribee Law report feeling empowered and reassured knowing their estates are managed efficiently.

Updating Your Estate Plan: Why It Matters

Life changes—marriages, births, divorces, new assets, and health developments—all affect your estate plan. Outdated documents may not reflect current wishes or adequately protect your family. Regular updates with an experienced estate planning lawyer ensure your documents align with life circumstances and the latest laws. Laribee Law provides ongoing support to review and revise plans whenever necessary.

Why Laribee Law Is the Right Choice for Medina Families

Navigating legal options and complex decisions requires a knowledgeable estate planning lawyer. Laribee Law has built a reputation for compassionate, tailored, and effective estate planning services. Strengths include:

Deep knowledge of estate law and personalized solutions
Clear, plain-language communication
Commitment to thoroughness, accuracy, and peace of mind

Choosing Laribee Law means partnering with a firm devoted to securing your family’s future with legally sound, customized planning.

Take Charge of Your Family’s Future Today

No matter your age or life stage, having an estate plan is one of the most important gifts you can give your loved ones. Don’t wait for “someday” or an emergency. Call Laribee Law, LLP today at (330) 725-0531 to schedule a consultation with an experienced estate planning lawyer in Medina, OH, who can guide you through the estate planning process with confidence and care. Secure peace of mind and protect what matters most—your family’s future depends on it. Let Laribee Law help you create an estate plan tailored to your needs.

Living Wills: Challenging a Physician's Findings

Tue, 30 Dec 2025 22:43:01 GMT

Living wills allow competent adults to state preferences for life-sustaining treatment (e.g., ventilators, feeding tubes) under specific conditions. In Ohio, a living will becomes operative when two physicians certify that the patient is either terminally ill or permanently unconscious and unable to make informed medical decisions. If, in light of the patient’s condition, the attending physician determines that life sustaining treatment should be withheld or withdrawn, they must document this in the patient’s medical record and make a good-faith effort to notify those individuals named in the living will as contacts.

But what happens if the patient’s family or loved ones disagree with the physicians’ medical opinion? Ohio law provides a formal objection process to challenge the physicians’ findings. The challenger must notify the attending physician of the objection within 48 hours and file a complaint in probate court within two business days. The complaint must identify the patient, state the relationship, and specify which determination is contested. Typical grounds include:

• Incorrect medical findings (e.g., diagnosis of terminal or permanent unconscious status);
• Wrong assessment of the patient’s decision-making capacity;
• Reasonable possibility that patient will regain capacity to make decisions;
• Proposed action not permitted by the living will;
• Living will executed under duress, fraud, or undue influence; or

• Living will does not comply with Ohio statutory requirements.

The probate court must serve all interested parties with a copy of the complaint within three days after its filing and must conduct a hearing at the earliest possible time, but no later than the third business day after service has been completed. Immediately following the hearing, the court must issue a written order, which may:

• Uphold the living will and physicians’ findings;
• Direct reevaluation of the patient’s condition or capacity; or,

• Declare the living will invalid and prevent its implementation.

Disputes involving end-of-life care are legally complex and deadlines to challenge doctors’ findings under a living will are quite short. If you are presented with such a case, it is wise to consult with a trusted probate attorney to assist you. Laribee Law, LLP is here to assist you.

Michael Laribee is a partner in the Medina law firm of Laribee Law, LLP. This article is intended to provide general information about the law. It is not intended to give legal advice. Readers are urged to seek advice from an attorney regarding their specific issues and rights.

Understanding Trusts: A Guide From an Estate Planning Lawyer

Sat, 18 Oct 2025 14:53:01 GMT

Navigating the complexities of estate planning can feel overwhelming, but understanding the tools available is the first step toward securing your family’s future. Many people in our community assume that a simple will is sufficient, but for those with specific goals—like avoiding probate, protecting assets, or providing for a loved one with special needs—a trust is an incredibly powerful instrument. As an experienced estate planning lawyer in Medina, OH , I often guide clients through the process of determining if a trust is right for their unique situation and which type best aligns with their wishes. This guide will break down the essentials of trusts, demystifying their purpose and illustrating their profound benefits for Ohio residents.

What Exactly is a Trust?

At its core, a trust is a fiduciary arrangement that allows a third party, known as a trustee, to hold and manage assets on behalf of one or more beneficiaries. You, the person creating the trust, are known as the grantor or settlor. You transfer ownership of your chosen assets—such as real estate, investments, or bank accounts—into the trust. The trustee you appoint is then legally obligated to manage those assets according to the precise rules you outline in the trust document for the benefit of your chosen heirs. This creates a structured, private, and often more efficient way to distribute your wealth than relying solely on a will, which must go through the public probate process. Consulting with an estate planning lawyer is crucial to ensure this document is drafted correctly and reflects your exact intentions, preventing future disputes or confusion.

Key Types of Trusts: Revocable vs. Irrevocable

Understanding the difference between the two main categories of trusts is fundamental to effective planning from an estate planning lawyer in Medina, OH:

Revocable Living Trusts: This is one of the most common trusts used in estate planning . As the name implies, a revocable trust can be altered, amended, or completely revoked by the grantor at any time during their lifetime. This flexibility allows you to maintain full control over the assets placed within the trust. The primary benefit of a revocable trust is that it avoids probate. Trust assets can be distributed to your beneficiaries immediately upon your passing without court intervention.

Irrevocable Trusts: Once established, an irrevocable trust generally cannot be changed or terminated without the permission of the beneficiaries. By transferring assets into this type of trust, you relinquish ownership and control. This might sound like a drawback, but it is the very feature that creates significant benefits. Because you no longer legally own the assets, they are typically shielded from creditors and are not considered part of your taxable estate. This can lead to substantial estate tax savings for larger estates. An estate planning lawyer can help you determine if the powerful protections of an irrevocable trust align with your long-term asset preservation goals.

How Trusts Provide Robust Asset Protection

A primary reason families establish trusts is to protect their hard-earned assets. A properly drafted trust can shield your wealth from potential future creditors, lawsuits, or even a beneficiary’s divorce. For instance, an irrevocable trust can safeguard assets from being claimed to satisfy your personal debts. Furthermore, trusts offer unparalleled control over how and when your beneficiaries receive their inheritance. You can dictate that assets be distributed at specific ages, used only for certain purposes like education or healthcare, or managed for a beneficiary who may not be financially responsible. This prevents a lump-sum inheritance from being squandered and ensures your resources provide long-term support. This level of precise direction is a key reason to work with a dedicated estate planning lawyer.

Ohio Trusts and Tax Implications

Tax considerations are a critical component of trust planning. While Ohio repealed its state estate tax, the federal estate tax still applies to very large estates. Irrevocable trusts are a common strategy to reduce the value of your taxable estate, as assets transferred into them are no longer considered yours. However, trusts are separate tax entities, and different types of income generated by trust assets (e.g., interest, dividends) can be taxed at the trust level or passed through to beneficiaries. The rules are complex and depend on the trust's structure. Navigating these intricacies requires professional guidance to ensure you achieve your desired tax outcomes without unintended consequences.

Is a Trust Right for Your Family?

Determining whether a trust fits into your estate plan depends on your individual assets, family dynamics, and personal goals. If you own real estate, have minor children, are concerned about probate costs and delays, or simply want to ensure your wishes are followed without question, a trust is likely a wise investment. It provides peace of mind that your legacy is protected and your loved ones are provided for in the most efficient way possible. Contact us today to schedule a consultation and discuss how we can help you build a secure future for your family.

Living Wills - the Basics

Wed, 13 Aug 2025 19:48:21 GMT

A living will is an important part of an estate plan that allows a competent adult (the “declarant”) to state his or her preferences for medical treatment in certain situations. Unlike a last will and testament that directs how property and assets should be distributed after death, a living will allows the declarant to decide in advance whether they want life-sustaining treatments, like a ventilator, CPR, or a feeding tube, in the event they become terminally ill or permanently unconscious and when can no longer communicate their wishes. To be clear, a living will is only effective when the declarant is unable to speak for themselves and direct their healthcare.

For purposes of a living will, a terminal condition is defined as an irreversible, incurable and untreatable condition caused by disease, illness or injury from which there can be no recovery and death is likely to occur within a relatively short time if life-sustaining treatment is not administered. A permanently unconscious state is defined as an irreversible condition in which the declarant is permanently unaware of himself or herself and surroundings and is unable to suffer or feel pain. At least two physicians must examine the declarant and confirm the declarant’s condition. The physicians must also determine that there is no reasonable possibility that the declarant will regain the capacity to make informed decisions and that the life-sustaining treatment would mainly prolong the process of dying.

If the declarant is either in a terminal condition or in a permanently unconscious state, the living will directs the declarant’s physician to issue a DNR (do not resuscitate) order and to allow the declarant to die naturally. The declarant’s physician would administer no life-sustaining treatment, including CPR, however the declarant would receive comfort care necessary to make the declarant comfortable and to relieve their pain.

The living will must be signed by the declarant at the end of the document and witnessed by two witnesses or notarized by a notary public. The witnesses must be adults who are not related to the declarant by blood, marriage, or adoption, who are not the attending physician of the declarant, and who are not the administrator of any nursing home in which the declarant is receiving care.

If a declarant has both a living will and a valid durable power of attorney for health care, the living will supersedes the durable power of attorney for health care to the extent that the provisions of the documents would conflict. In other words, a health care agent cannot override the declarant’s wishes in a living will.

A living will has no expiration date. However, a declarant can revoke the living will by notifying their physician and physically destroying the original and all copies. Hospitals and physicians are permitted to rely on a copy of the living will instead of the original. Further, the living will often includes a statement that the declarant intends that the living will be honored in another state to the extent allowed by law.

Ultimately, a living will allows a declarant to control their healthcare. It reduces stress for loved ones and prevents disagreements among family members during emotional situations. By clearly stating healthcare wishes in advance, you ensure that your voice is heard when you are unable to communicate your wishes. It is important to seek the assistance of an attorney to make sure that the living will is properly prepared and executed. Laribee Law, LLP is here to assist you with preparation of a living will and your other estate planning documents.

Sharing Financial Information and Passwords with your Power of Attorney

Thu, 19 Jun 2025 20:53:46 GMT

Felix and Oscar were lifelong friends. Oscar decided it was time to get his estate planning in order. So, he hired an attorney who drafted several documents including a durable financial power of attorney. Oscar named Felix as his agent. The power of attorney granted Felix the ability to manage Oscar’s checking accounts, savings accounts, certificates of deposit, money market accounts, brokerage accounts, retirement accounts, insurance policies, and tax matters. Oscar provided Felix with a copy of the executed power of attorney so Felix could manage his financial affairs in the event of Oscar’s incapacity. Oscar did not, however, discuss the details of his finances with Felix.

Several years passed. Oscar was hospitalized after a sudden illness and was unable to attend to his finances. Felix went to Oscar’s apartment to locate his checkbook and statements. While Oscar’s new estate planning documents were well organized, his financial records were not. Oscar’s apartment was littered with random receipts and outdated papers. Despite a valiant effort, Felix could not locate any current bank statements. Felix did not know where Oscar maintained his accounts. Furthermore, he could not access Oscar’s computer or his online banking. It took months for Oscar to recover and unfortunately, his bills went unpaid during that time.

A power of attorney is a legal tool that grants a trusted individual (known as the agent or attorney-in-fact) the legal authority to manage finances, pay bills, access bank accounts, and handle other critical tasks for another person (known as the principal), especially during the principal’s illness or incapacity. One of the most important steps in preparing a power of attorney is ensuring the agent has access to the principal’s financial information. This includes account numbers, bank names, online login credentials, computer passwords, mobile phone passcodes, and contact information for the principal’s accountant, attorney, or financial planner.

If the agent does not have quick access to account information, he may be unable to carry out essential responsibilities listed in the document. This, in turn, could lead to delays, missed payments, frozen accounts, penalties, or disruption in services. The principal can provide the agent his financial information through a secure password manager, a sealed list of credentials stored in a safe location, or through regular discussions. If the principal keeps important documents in a safe or lockbox at home, the agent should have the combination.

After creating a power of attorney, you should carefully organize and share your financial and digital access information with your agent so they may act swiftly and efficiently in times of need. This assures your finances are managed responsibly and without unnecessary complication. A trusted estate planning attorney can assist with drafting your documents and provide the guidance to make sure they are used effectively. Laribee Law, LLP is here to serve you.

Driveway Easements - the Devil is in the Details

Mon, 14 Apr 2025 18:32:32 GMT

William and Kate were looking for their first home to raise a family. They fell in love with a small bungalow in the city. The neighborhood was quaint with houses built close together. Like many of the houses on the street, the bungalow shared a driveway with the neighboring property. William and Kate thought this added a sense of charm and community. William and Kate signed a purchase agreement with the seller. They received a title report from the escrow agent but failed to read through the documents carefully. The transaction closed quickly, and William and Kate moved in.

Within a few weeks, issues arose related to the shared driveway. Their neighbor, Harry, and his guests would park cars in the driveway, completely blocking access to William and Kate’s garage. Sometimes, Harry would leave equipment and tools strewn across the driveway. William and Kate parked in the street rather than confronting Harry. After the first big snowstorm, William and Kate asked Harry to share in the cost to plow the driveway. Harry just laughed and said that the cost was their responsibility.

When William and Kate examined their title work, they realized that the driveway was located entirely on their property and that the easement gave Harry an unlimited right to use it. The easement placed no restrictions on Harry’s use whatsoever. It did, however, provide that William and Kate were responsible for all costs associated with maintenance and snowplowing.

An easement is a limited interest in real property, usually taking the form of a right to use the property in a certain way. Easements are used for roadways, common driveways, and utility lines and facilities. They are often created by a recorded document that describes the easement area and the terms of use. Sometimes an easement is found within a deed as a reservation from the land being conveyed. Driveway easements usually provide that one property owner (the dominant estate) has the right to use part of a neighbor’s land (the servient estate) to access their home or property. Most driveway easements are permanent and “run with the land” which makes them binding on all future owners unless they are mutually terminated.

Driveway easements may be problematic when the document does not clearly define rights and obligations. Ohio law does not automatically assign responsibility for the upkeep of a shared driveway. Unless the easement agreement clearly spells out all obligations, neighbors may find themselves in a dispute. A well drafted easement should:

• clearly define the easement area (usually with a survey and plat drawing);

• state the duration of the easement (most often, it will be permanent and binding on future owners);

• set forth the scope of the easement (i.e. ingress and egress by passenger vehicles only);

• provide that the easement is non-exclusive, and that the dominant estate may not interfere with the servient estate’s use of its property;

• list limitations on use (i.e. no parking vehicles or storage of equipment in the easement area; no access by heavy construction vehicles that may damage the driveway surface);

• allocate responsibility for maintenance (i.e. splitting the cost of snowplowing, repairs, and replacements); and,

• provide for liability and indemnification (i.e. the dominant estate must pay for damage it causes and defend the servient estate in any lawsuits arising from the dominant’s use of the driveway).

An easement can also affect the value of each property. For the dominant estate, it provides the benefit of necessary access to the road. However, for the servient estate, it reduces privacy and limits how the property can be used. These conditions could make the property less appealing to future buyers.

It is important to review title reports and easements with a trusted attorney when purchasing property. That way, a buyer may identify ambiguities in the documents that could otherwise lead to disputes and costly litigation. Laribee Law, LLP is here to assist you.

Benefits of an Organized Estate Plan

Mon, 17 Feb 2025 19:45:07 GMT

Estate planning is often a neglected part of personal finances. Let’s face it: people do not look forward to leaving their loved ones behind. They often postpone the task as the issues of everyday life take priority. However, a well-structured estate plan ensures that your family is prepared for your passing. It will most certainly alleviate emotional, financial, and legal burdens during an emotional time. Organizing your estate planning documents, passwords, account information, and funeral arrangements is key. Here are a just few reasons why it is so crucial to get started right away:

1. Simplify Tasks for Family

Surviving family members are often left to sort through piles of paperwork of a deceased loved one. Without clear directions, surviving loved ones may be overwhelmed by locating important documents such as last wills and testaments, funeral instructions, bank accounts, brokerage statements, and insurance policies. Separating the most important documents in one place will prevent confusion and unnecessary delays in settling your affairs. It may also prevent unnecessary costs.

2. Your Wishes Will Be Clear

Organizing your estate documents ensures that your wishes will be honored after you are gone. By clearly outlining your instructions for assets, funeral arrangements, and other important matters, you provide a roadmap for your family. This is especially important if there are specific directions regarding division of assets or possible conflict among family members. The clearer your intentions, the less room there is for misinterpretation. You should review your estate planning documents periodically to address any changes in your life such as the death of intended beneficiaries.

3. Simplify the Legal Process

The legal process of settling an estate can be long, expensive, and complicated, especially if your affairs are disorganized. As a general rule, most people do not want their assets to be part of a probate court administration. A well-structured estate plan will pass assets to beneficiaries without the difficulties and cost of probate court. The surviving family members will have access to funds more quickly and can proceed with selling or distributing assets without delay.

4. Family Can Locate and Access Account Information

Our financial lives are filled with numerous accounts, passwords, and online log-in credentials. Most people no longer receive monthly paper statements in the mail that would otherwise provide details about banking and retirement accounts. Your family may not even know where you hold your accounts, let alone whether you have named transfer on death beneficiaries. It is important to keep a secure list of usernames, passwords, and account information in a safe, accessible location. Consider using a password manager to securely store passwords. Without ready access to this information, surviving family members may find it difficult to locate and properly manage your assets.

5. Simplify Funeral Arrangements

One of the most difficult tasks for surviving family members is making funeral arrangements under emotional stress. There is a wide range of funeral options, many of which are quite expensive. Establishing a pre-arranged funeral plan can relieve your loved ones from making these decisions during a time of grief.

6. Identify Outstanding Debts

Ohio law provides that most creditors must submit formal claims in a probate estate within six months of the date of death. Organizing your debt obligations, including current credit card statements, mortgage documents, and promissory notes, will help your family identify your current obligations and prioritize payments. They can determine which claims are valid and which claims are barred by the six-month claim deadline.

Organizing estate planning documents and related accounts will create a comprehensive overview of your current finances. Your family will learn more about your financial status. Moreover, they will understand how you expect them to manage your affairs upon your death. Laribee Law, LLP help you develop and organize the right estate plan that is right for you.

Why Every Family Needs an Estate Lawyer

Mon, 02 Dec 2024 18:43:14 GMT

Estate planning is a crucial step in ensuring your legacy is protected, your wishes are honored, and your loved ones are provided for. As experienced estate lawyers in Medina, Ohio , we guide clients through the intricacies of estate planning, offering a holistic approach that focuses on your unique goals. Below are the key documents you need to create a thorough estate plan.

The importance of a last will and testament

An important part of any estate plan is a last will and testament . In the event your assets must go through a probate estate, this document outlines how you want those assets distributed. A last will and testament also allow you to appoint guardians for your minor children, ensuring they are cared for by people you trust. Without a last will and testament , the state of Ohio decides how to divide your assets in a probate court administration, which may not align with your wishes.

Trusts: Managing Your Assets Efficiently

Trusts are powerful estate planning tools that can help protect your assets, provide privacy, and avoid probate. A revocable living trust allows you to maintain control over your assets while ensuring they are distributed according to your instructions after your death. Trusts are also useful for minimizing taxes and protecting assets for your beneficiaries. Laribee Law, LLP of Medina, OH can guide you in selecting the right type of trust to meet your goals.

Power of Attorney: Financial Protection in Uncertain Times

A durable power of attorney (POA) ensures that someone you trust can handle your financial affairs if you become incapacitated. Whether due to illness, injury, or age-related conditions, a POA allows your appointed representative to manage bank accounts, pay bills, and make other financial decisions on your behalf. Without a POA, your family may need to go through a lengthy court process to obtain the legal right to act on your behalf.

Healthcare Power of Attorney and Living Will: Control Over Medical Decisions

A healthcare power of attorney and living will be essential documents that outline your medical preferences. These documents ensure that your healthcare wishes are followed if you're unable to communicate them yourself. You can designate someone to make healthcare decisions for you and detail instructions for end-of-life care, allowing you to maintain control over your treatment and comfort.

The Benefits of Working with an Estate Lawyer

Working with Laribee Law, LLP in Medina, OH ensures that your estate plan is tailored to your specific needs. Whether you are looking to reduce taxes, protect assets, or ensure your healthcare wishes are respected, our team provides expert advice and guidance every step of the way. Estate planning is a proactive way to protect your loved ones from future legal and financial stress, making it one of the most important decisions you can make for your family.

Ready to protect your assets and provide for your loved ones? Contact our estate lawyers at Laribee law, LLP. We offer tailored estate planning solutions that address your unique needs, including trusts, beneficiary designations, and more. Visit our website for more information and get started today.

Can I Get a Witness (actually two)? Properly Executing Last Wills and Testaments

Fri, 16 Aug 2024 21:31:36 GMT

Taylor was a musician. Her touring schedule kept her on the road for weeks at a time. As her success grew, so did her earnings. Before embarking on the next leg of her tour, she decided to quickly draft a last will and testament in the event something happened to her during her travels. She found a sample form on the internet and tailored it for her use. She named her new boyfriend, Travis, as the sole beneficiary of her fortunes. Her assistant tour manager was a notary public, so he notarized her signature on the document. Did Taylor properly execute her will? The answer is no (bad news for Travis).

Ohio law provides that last wills and testaments must be signed at the end of the document by the testator (the person making the will) and must be attested and subscribed in the conscious presence of the testator by two or more competent witnesses. In other words, two or more people must watch the testator sign her will or hear the testator say that the signature on the will is actually hers. Then, the witnesses must sign the will under the observation of the testator. Contrary to popular belief, last wills and testaments do not need to be notarized. A notary public may serve as one of the two witnesses, however.

The Ohio statute defines “conscious presence” as within the range of any of the testator's senses, excluding the sense of sight or sound that is sensed by telephonic, electronic, or other distant communication. There are many cases in Ohio in which courts have thrown out wills because the witnesses never saw the testator sign. Likewise, courts have invalidated wills when the testator did not see or hear the witnesses sign the document.

Interestingly, Ohio law states that all persons are competent witnesses for wills except those of unsound mind and children under ten years of age who appear incapable of understanding what they are signing. For obvious reasons, it is best not to use minor children to witness wills in the event the witnesses must testify in court. Also, individuals who are named as beneficiaries in the will should not sign as witnesses. While it does not invalidate a will, the bequest to the witness beneficiary will be deemed null and void.

While it may be tempting to create a last will and testament on your own, it may not end well. It is important to seek the assistance of an experienced estate planning attorney to make sure that the contents of the will and its execution comply with applicable law. Laribee Law, LLP is here to assist you.

When Does a Power of Attorney Become Effective?

Tue, 18 Jun 2024 13:16:06 GMT

A financial power of attorney is an instrument that allows one person to act for another in financial matters. The person making the document is called the principal. The person designated to act for the principal is called the agent. In general terms, a power of attorney empowers an agent to handle everyday financial affairs like paying bills or handling banking matters for the principal. A power of attorney can also be used when a person is not able to make decisions due to mental or physical incapacities. But when does the document become effective?

The Ohio Revised Code states that a power of attorney is effective when the principal executes the document unless the principal specifically provides that the powers become effective upon the occurrence of a future event or contingency. For instance, the document may state, “the Agent’s powers shall commence and be in full force and effect upon the occurrence of my disability, incapacity, or adjudicated incompetence.” These types of powers of attorney are described as “springing” because they spring into effect at a later date. The principal may also designate in the document a person to determine whether the principal is incapacitated and unable to conduct his or her financial affairs.

But what happens if the principal has not authorized a person to determine incapacity? Likewise, what if the principal did name a person to determine incapacity, but he or she is unable or unwilling to do so? In that case, Ohio law provides that the power of attorney becomes effective when one of the following people provides a determination in writing that the principal is incapacitated within the meaning of the Ohio Revised Code:

(1) a physician or a licensed psychologist who has examined the principal;

(2) an attorney at law or a judge; or

(3) an appropriate governmental official.

It is important to note that this process takes time. Most likely, a bank or financial institution will not honor a power of attorney until it is absolutely sure the agent has the power to act. In the meantime, the principal’s finances are left unattended.

By making the power of attorney effective immediately, the principal can be sure that the agent may immediately and efficiently handle the principal’s financial matters. Indeed, the document can be used for convenience purposes if the principal is simply unable to leave his or her residence.

When drafting a power of attorney, it is important to seek the assistance of an experienced attorney. That way, the document will clearly set forth exactly when the agent can legally assist the principal. Laribee Law, LLP is here to assist you.

Fiduciary Fees in an Estate

Thu, 02 May 2024 17:24:48 GMT

I have previously written about the duties of an executor in an estate. The administration of an estate can be quite complicated and time consuming. Generally, it includes locating the names and addresses of decedent’s beneficiaries and next of kin, filing the decedent’s last will and testament, gathering and protecting decedent’s assets, obtaining appraisals, preparing an inventory of all real and personal property, verifying and paying creditor claims, selling assets, distributing estate property to beneficiaries, filing tax returns, and following all directions and orders from the probate court.

Legally appointed executors are authorized by an Ohio statute to take a commission, commonly known as a fiduciary fee, to compensate them for their efforts. Fiduciary fees are calculated upon the amount of the decedent’s personal property, funds in financial accounts, and the value of decedent’s real property.

As full compensation for all ordinary services, the Ohio statute provides that an executor may receive a fiduciary fee upon the amount of all the personal property, including any income generated, and upon the proceeds of real property that is sold, as follows:

(1) For the first $100,000, at the rate of four per cent (4%);

(2) All above $100,000 and not exceeding $400,000, at the rate of three per cent (3%); and,

(3) All above $400,000, at the rate of two per cent (2%).

The fiduciary fee is calculated using the gross sale proceeds for real property and the fair market value of all other property (date of death value) as set forth in the inventory. In the event the decedent’s real property is not sold, but rather transferred to the beneficiaries directly, the executor may receive a fee of one per cent (1%) of the inventory value of real property.

Executors are also allowed to charge a fee of one per cent (1%) on the value of certain non-probate assets that are not subject to the probate court estate administration. These assets include joint and survivorship property and assets that have transfer on death designations. Aside from this compensation, the executor may be reimbursed for reasonable and necessary expenditures.

The statute further provides that a probate court may reduce an executor’s fiduciary fee, or deny the fee altogether, if it finds that the executor has not faithfully discharged his or her duties. The probate court may also allow a fiduciary fee that is greater than the statutory amount if an executor performs extraordinary services. In that case, the court may adjust the commission so that the total fees fairly reflect the reasonable value of both ordinary and extraordinary services.

Fiduciary fees are given priority for payment in insolvent estates as an expense of administration.

Even if there are not enough estate assets to pay all of the decedent’s debts, the executor will receive a fee for his or her services before funeral expenses, creditor claims, and other debts.

Sometimes executors will waive compensation as the fiduciary fee ultimately reduces the amount received by the beneficiaries. However, if they decide to take a fiduciary fee, they must report the full amount received on their individual income tax return and pay taxes on it.

When administering a probate estate, it is important to seek the assistance of a probate lawyer. That way, an executor will successfully navigate the challenging requirements and receive the appropriate fee for his or her services. Laribee Law, LLP is here to assist you.

Using a Living Revocable Trust to Protect a Beneficiary’s Inheritance

Thu, 04 Jan 2024 23:16:29 GMT

In my last article, I explained how a living revocable trust is established and managed. In simplest terms, it is a legal document that provides for the management of property upon death or disability. The main benefit of a living revocable trust is that it allows the transfer of property without a probate court administration. Not everyone absolutely needs a living revocable trust to avoid probate. However, there are some circumstances when a living revocable trust is an indispensable tool. Upon the death of a grantor, the party who established the trust, a living revocable trust become irrevocable, and its terms can protect a beneficiary’s inheritance from many situations.

Underaged beneficiaries : In some cases, intended beneficiaries have not reached 18 years of age, the age of majority in Ohio. It is not advisable for minors to hold title to property and other assets without the oversight of a trusted adult. Indeed, many argue that young adults in their twenties do not have the maturity to manage assets responsibility. A living revocable trust can direct a trustee to hold assets in a separate share trust for a young beneficiary until he/she reaches a desired age. Even before the beneficiary reaches that stated age, the trustee can use the trust assets for the beneficiary’s education, the purchase of a residence, the purchase or management of a business, or for any other extraordinary opportunity deemed by the Trustee to be in the best interests of the beneficiary.

Beneficiaries who don’t get along : It is not unusual for conflict to affect family relationships. Sometimes siblings are unable to work effectively together to sell a decedent’s assets. While transfer on death designations are useful to transfer real property to beneficiaries outside of probate, the title to the real property is then held by the beneficiaries together. They must then decide unanimously whether to sell, keep, or divide the real property. If they are unable to come to an agreement, the beneficiaries must resort to court litigation. A revocable living trust, however, vests the power in a trustee to sell, manage, or divide the real property for the benefit of the beneficiaries and pursuant to the exact terms of the trust. This avoids fighting and the cost of litigation.

Creditor/debt problems : When a beneficiary inherits money, real property, or other assets, they are fair game to the beneficiary’s creditors who are eager to attach the inherited assets to satisfy debts and judgments. A living revocable trust can direct a trustee to hold assets for that beneficiary in a separate trust with a spendthrift provision. That way, creditors cannot demand the trustee release the assets to satisfy the beneficiary’s debt. However, the trustee can pay for the beneficiary’s ongoing bills and expenses directly, in the trustee’s sole discretion.

Alcohol or substance abuse : There may be a risk that a beneficiary may use inherited assets improperly, or even illegally, to fuel an addiction. A living revocable trust can direct a trustee to hold assets for a beneficiary who is struggling with these issues and pay for the beneficiary’s legitimate expenses directly.

Domestic troubles : A beneficiary may be the party to a troubled marriage or in the middle of a bad divorce. A living revocable trust can direct a trustee to hold assets for a beneficiary so they do not become marital property or subject to the claims of the beneficiary’s estranged spouse.

When establishing a trust, it is important to consult with a trusted attorney to protect a beneficiary’s inheritance. Otherwise, trust assets could be lost to disputes, creditors, illegal activities, or costly litigation. Laribee Law, LLC is here to assist you.

What is a Living Revocable Trust? The Basics

Wed, 22 Nov 2023 22:08:01 GMT

In simple terms, a living revocable trust is a legal document that provides for the management of property. It is called “living” because the grantor, the person who establishes the trust, is alive when he or she creates it. It is considered “revocable” because the grantor can amend or terminate the trust at any time during his or her lifetime.

The main benefit of a living revocable trust is that it allows the transfer of a grantor’s property upon death to beneficiaries without probate court administration. A court is not involved in the inventory and distribution of assets. Therefore, the grantor’s affairs remain private. The trust avoids the time and expense usually associated with a probate estate. Living revocable trusts may also manage a grantor’s property during the grantor’s lifetime if he or she is unable to conduct their business affairs due to a medical condition or mental incompetency.

The trust is controlled by a trustee. Normally, the grantor serves as the trustee while he or she is living. Couples can create a shared living revocable trust. In a shared trust, the couple usually serves as co-trustees. The trust can provide that either grantor may conduct trust business. The grantor most often names successor trustees to take over trust responsibilities when the grantor dies or in the event the grantor becomes incapacitated. Successor trustees can be spouses, children, or professional trust companies. The trust sets forth how much the successor trustee may charge for his or her services.

A living revocable trust can hold title to real property, bank accounts, vehicles and equipment, stocks, and brokerage accounts. Grantors may also name the trust as a transfer on death beneficiary on life insurance policies or retirement accounts.

Living revocable trusts are very flexible. The grantor can add or withdraw property from the trust at any time. Normally, real property is transferred into the trust by a quit-claim deed. Bank accounts and brokerage accounts are easily updated to title the account in the name of the trustee.

The grantor does not lose control of the trust assets. They are still considered the grantor’s legal property. The trust does not require a separate tax identification number. All trust accounts will reflect the grantor’s social security number. Therefore, the grantor will not have to file a separate tax return for the trust. All interest income or dividends earned on trust property are reported on the grantor’s individual tax return.

When establishing a trust, it is important to consult with a trusted attorney to make sure that it is drafted properly and specifically tailored to the needs of a grantor. That way, the grantor’s assets will be administered smoothly and efficiently upon death or incompetency. The attorneys at Laribee Law, LLP are here to assist you.

A Trustee’s Duties to Invest Prudently

Wed, 22 Nov 2023 22:06:37 GMT

A trustee has a unique responsibility to trust beneficiaries when handling trust assets. Generally, a trustee must exercise the care, skill, and diligence of a person of ordinary prudence dealing with the person's own property.

Trust agreements often grant trustees the power to invest trust assets to grow the principal and to provide income for the beneficiaries. However, when faced with a volatile stock market, a trustee must act carefully to avoid loss. The Ohio Uniform Prudent Investor Act provides direction and requirements for trustees.

The Act governs trustees who serve testamentary trusts (those administered under supervision of a probate court) as well as inter vivos trusts (those administered with no probate court supervision). Trustees must exercise reasonable care, skill, and caution and may utilize a wide range of investments including bonds (U.S., state, county, municipal, and school district), stocks and securities, promissory notes, life insurance and annuity contracts, and certificates of deposit.

Trustees must diversify the investments across different sectors and markets to limit risk and decrease the chances of losing money. However, the Act recognizes that there may be special circumstances when a trust is better served without diversifying, but this is rare. A trustee's investment and management decisions are evaluated by viewing the trust portfolio as a whole. The overall investment strategy should have risk and return objectives reasonably suited to the trust.

The Act provides several circumstances that a trustee must consider in investing and managing trust assets:

1. The general economic conditions;

2. The possible effect of inflation or deflation;

3. The expected tax consequences of investment decisions or strategies;

4. The role that each investment or course of action plays within the overall trust portfolio, which may include financial assets, interests in closely held enterprises, tangible and intangible personal property, and real property;

5. The expected total return from income and appreciation of capital;

6. Other resources of the beneficiaries;

7. Needs for liquidity, regularity of income, and preservation or appreciation of capital;

8. An asset's special relationship or special value, if any, to the purposes of the trust or to one or more of the beneficiaries.

It is important to note that the terms of a trust document will supersede the requirements of the Ohio Uniform Prudent Investor Act. In other words, the trust may direct the trustee to make certain investments that may be speculative or risky. A trustee will not be held liable for losses as long as the trustee acted in reasonable reliance on the provisions of the trust.

When administering a trust, it is important to consult with a trusted attorney to understand all of the duties and requirements involved. That way, trust assets will provide their intended benefits to the trust beneficiaries. The attorneys at Laribee Law, LLP are here to assist you.

Disposition after Death: Who Makes Funeral Arrangements?

Wed, 22 Nov 2023 22:04:38 GMT

I have written before about the importance of discussing funeral arrangements with family and loved ones. There are many different funeral options, some of which are quite personal. Some can be very expensive. Will you be buried or cremated? What kind of casket and vault will be used? Will there be a public memorial or a private service? Where will you be buried? If you are cremated, what happens to your cremains?

Ohio law provides a specific method for people to direct the disposition of their bodies after death. They may execute a written declaration that appoints another person the right to determine the location, manner, and conditions of the disposition of their bodily remains. This includes arranging funeral services and purchasing funeral goods for burial, cremation, or other manner of final disposition.

But what if someone dies without making such a declaration? An Ohio statute provides a list of people who have the power to make funeral decisions in this instance. They are set forth below in order of priority:

(1) The decedent's surviving spouse;

(2) The sole surviving child of the decedent or, if there is more than one surviving child, all of the surviving children, collectively;

(3) The decedent's surviving parent or parents; if a parent was the residential parent and legal custodian of the decedent at the time the decedent reached the age of majority, that parent's right takes precedence over the other parent;

(4) The decedent's surviving sibling, or if there is more than one sibling, all of the surviving siblings, collectively;

(5) The decedent's surviving grandparent or grandparents;

(6) The decedent's surviving grandchild, or if there is more than one surviving grandchild, all of the surviving grandchildren collectively;

(7) The lineal descendants of the decedent's grandparents;

(8) The person who was the decedent's guardian at the time of the decedent's death;

(9) Any other person willing to assume the right of disposition, including the personal representative of the decedent's estate or the licensed funeral director with custody of the decedent's body; and,

(10) If the decedent was an indigent person, the public officer or employee responsible for arranging the final disposition of the remains of the decedent.

It is important to discuss funeral preferences when putting together an estate plan. Laribee Law, LLP can provide valuable guidance. That way, family and loved ones are not forced to make complicated decisions during a difficult time of grief and mourning.

A Trustee’s Duties of Loyalty and Avoiding Conflicts of Interest

Thu, 21 Sep 2023 13:48:39 GMT

Jerry owned a beautiful lake house on Lake Erie. He had five children who enjoyed using the lake house during different weeks in the summer. Unfortunately, Jerry’s children did not get along. They barely spoke to each other.

Jerry transferred title to the lake house to a revocable living trust in order to keep the peace among his children at his death. He nominated his son Bobby to serve as successor trustee when he died. The trust directed Bobby to divide the assets of the trust equally among the five children.

When Jerry passed away, Bobby took over administration of the trust. Bobby knew the lake house had to be sold since the five children could not amicably own it together. However, Bobby really wanted to keep the beach house for himself. He offered to purchase the lake house from the trust for a value far greater than its current fair market value. His siblings did not agree with his proposal, mostly out of spite. Is Bobby permitted to purchase the house from the trust anyway? The answer is probably not.

Ohio law imposes strict duties upon trustees when they are administering trust assets for others. Probably the most important are the duties of loyalty and avoiding conflicts of interests. Trustees must act solely in the interests of the beneficiaries and follow the terms of a trust. They must always act with disinterested and independent judgment. Their personal interests may not conflict with their role as trustee. Ohio law provides that trustees may not personally use funds or property belonging to the trust.

Likewise, trustees are not allowed to purchase property from a trust unless:

(1) the transaction is authorized by the terms of the trust;

(2) the transaction is approved by a court; or

(3) the beneficiaries consent to the transaction.

The trust beneficiaries must have full knowledge of all the material facts of a transaction to give valid consent. It is the trustee’s duty to make sure that the beneficiaries fully understand the terms of the proposed purchase.

Can Bobby avoid the conflict of interest by selling the beach house to his spouse or son? The answer is no. Ohio law states that a conflict of interest still exists if a trustee enters into an agreement with one of the following:

(1) the trustee's spouse;

(2) the trustee's descendant, sibling, or parent, or the spouse of a trustee's descendant, sibling, or parent; or,

(3) an agent or attorney of the trustee.

When administering a trust, it is important to consult with a trusted attorney to understand all of the duties and requirements involved. Laribee Law, LLP is here to assist. That way, the trustee will avoid prohibited conflicts of interest.

A Trust For Pets? Yeah, it’s a thing.

Wed, 14 Jun 2023 22:01:42 GMT

You may have seen a recent commercial for an internet company that sells pet supplies. In the commercial, an attorney reads the deceased man’s last will and testament to the deceased man’s children and his pet cat, Mr. Marbles. The children are shocked to hear that the deceased man left his summer house to Mr. Marbles. The commercial declares that “pets aren’t just pets, they’re more.”

While the commercial is tongue-in-cheek, people do plan for the care of their pets in the event of their incapacity or death. There are a lot of pet owners out there. Forbes recently published that 66% of U.S. households (approximately 86.9 million homes) own a pet as of 2023. It is without question that people love their animals. Forbes states that 85% of dog owners and 76% of cat owners responded in a poll that they consider their pet to be a member of the family.

In the past, a pet owner would make a provision for their pets in their last will and testament. However, some courts have raised questions about the enforceability of these provisions under common law.

To provide more certainty for concerned pet owners, the Ohio Trust Code now authorizes the creation of a trust for the care of animals. Such trusts have been designated "honorary trusts" because the funds are used for a specific non-charitable purpose without a definite beneficiary capable of enforcing it. Honorary trusts are also created for the construction of monuments and the care of gravesites.

A pet trust may be created for one or several designated animals. While the animal is ordinarily alive on the date the trust is created, an animal may be added as a “beneficiary” later provided that it is done while the owner is still alive.

The pet owner names a trustee to enforce the terms of the trust. If the trustee is unwilling or unable to serve the trust when the time comes, then any person having an interest in the welfare of that animal may apply to the probate court to become the trustee.

The Ohio Trust Code is clear that the amount of property that may be kept in a trust for the care of an animal is not unlimited. If a court determines that the trust funds exceed what is reasonably required for the animal’s care, it can order the trustee to distribute excess funds to the owner, if still living, or to the owner’s heirs. The trust terminates upon the death of the pet. The pet owner may direct the distribution of excess funds following the pet’s death within the trust document.

Without a doubt, a pet trust does sound rather extravagant. It’s certainly not for everyone. However, the continued care of animals is worth a discussion with a trusted estate planning attorney. Laribee Law, LLP is ready to assist you. That way, a pet owner can rest assured that the pet will receive good care long after the owner is gone.

Trustee’s Duty to Keep Beneficiaries Informed

Tue, 20 Dec 2022 21:17:42 GMT

One advantage of using a trust in an estate plan is that a trust administration is not public record. Unlike a probate estate, the details of the decedent’s trust remain private. However, that does not mean that the trustee can leave the trust beneficiaries in the dark. Since there is no court reviewing the trustee’s actions, Ohio law requires trustees to keep beneficiaries reasonably informed about the status of the trust and any facts that are necessary to allow the beneficiaries to protect their interests.

First and foremost, trustees must promptly respond to a beneficiary's request for information related to the trust. The trustee must notify the current beneficiaries of the trustee's name, address, and telephone number. Also, the trustee must notify the current beneficiaries of the trust's existence, of the identity of the settlor (the person who established the trust), of the right to request a copy of the trust instrument, and of the right to a trustee's report.

Upon a beneficiary's request, a trustee must furnish to the beneficiary a copy of the trust instrument. Unless the beneficiary expressly requests the complete document, a trustee may provide a redacted version of the trust that includes only those provisions that are relevant to the beneficiary's interest. If the beneficiary requests a copy of the entire trust instrument after receiving a redacted copy, the trustee must furnish a copy of the entire trust instrument to the beneficiary.

The trustee has a statutory duty to send to beneficiaries a report of trust property at least annually and at the trust's termination. The report should include liabilities, receipts, and disbursements, including the amount of the trustee's compensation, a listing of the trust assets, and, if feasible, the trust assets' respective market values.

The trustee must also notify the current beneficiaries in advance of any change in the method or rate of the trustee's compensation. If a trustee resigns his or her position, the former trustee must send a report to the current beneficiaries for the period during which the trustee served. A beneficiary may always waive the right to a trustee's report or other information otherwise required to be furnished.

When administering a trust, it is important to consult with a trusted attorney to understand all of the duties and requirements involved. That way, beneficiaries know what to expect and the trust administration will run more smoothly. Laribee Law, LLP is here to assist you.

Warranty Deeds and Quitclaim Deeds: Know the Difference.

Tue, 08 Nov 2022 18:15:54 GMT

The legal transfer of real property is achieved through documents known as deeds. Generally, every deed must be in writing, name the party receiving the real property (known as the “grantee”), be signed by the transferring party (known as the “grantor”) before a notary public, and be recorded in the county recorder’s office where the real property is located.

Ohio law sets forth several statutory deed forms, however two types of deeds are most common: general warranty deeds and quitclaim deeds. Both effectively transfer the grantor’s ownership. Both must be executed and recorded in the same way. However, that’s where the similarities end.

A general warranty deed contains very specific covenants on the part of the grantor with the grantee. At the time of the delivery, the grantor warrants to the grantee the following:

the grantor lawfully possesses the highest right, title, and interest that one can have in real property (known as “fee simple”);

that the real property is free from encumbrances (liens, mortgages, encroachments, and interests of others);
that the grantor has the absolute right to transfer the real property to the grantee; and,
that the grantor will defend the grantee and the grantee's heirs, assigns, and successors, against claims and demands asserted by all persons relating to the real property.

Essentially, a general warranty deed allows a grantee to sue the grantor in the future if the grantee incurs damages as a result of title defects in the real property.

A quitclaim deed, however, transfers only those rights which a grantor has in the property at the time of the conveyance. Unlike a warranty deed, it does not warrant that the grantor possesses the highest right, title, and interest in the real property. At the time of the delivery, the grantor warrants only the following:

the premises are free from all encumbrances made by the grantor himself/herself; and,
the grantor will defend the grantee against the claims and demands of all persons claiming by, through, or under the grantor only, but against no other party.

In other words, the grantor only remains responsible for title problems the grantor created himself/herself. The grantor is not responsible for claims of any third parties. A quitclaim deed is often used when there are title imperfections in the real property. The grantee of a quitclaim deed takes the land subject to all existing claims against it as well as any rights the grantor might have enforced. Basically, the grantee takes “the good, the bad, and the ugly.” Co-owners of real property, spouses, or members of the same family often use quitclaim deeds to transfer title among themselves when they are not concerned about liens, encumbrances, or interests of third parties.

When conveying or receiving real property, it is important to consult with a real property attorney and explore all options available. That way, the parties truly understand what rights and interest

they are transferring and receiving as well as their ability to collect damages if problems arise in the future. The attorneys at Laribee Law, LLP are here to assist you.

Advantages to Probate Court Administration

Mon, 22 Aug 2022 16:13:47 GMT

Most estate planning clients say they would like their estates to avoid probate court when they die. This is not surprising as many television infomercials and estate planning books tell people to avoid a probate administration at all costs. There is certainly merit to this opinion. However, probate court does provide several advantages which people often overlook.

What is a probate administration? Simply, it is the process whereby a probate court assigns a representative (an executor or administrator) to gather and list the decedent's assets, pay all outstanding debts, bills and taxes, and then distribute the remaining assets to the beneficiaries listed in the decedent’s will.

There are three main complaints about probate court: it takes longer (full probate estates usually take at least six months or more to administer), it costs more (the estate will incur court costs and possibly attorney fees), and it is not private (the estate administration is public record and people can view the will, the value of estate assets, and the distributions to the beneficiaries). Certainly, these are valid reasons to create an estate plan that distributes assets to beneficiaries outside of probate court (using transfer-on-death beneficiary designations, joint ownership with rights of survivorship, or trusts). However, it is important to consider the following positive aspects of probate court:

1. The probate court will make sure the executor honors the decedent’s wishes and follows the provisions of the decedent’s last will and testament precisely.

2. The beneficiaries will receive copies of all important filings through a formal, systematic process overseen by a judge or magistrate.

3. The probate court monitors all actions of an executor.

4. The executor cannot engage in self-dealing or play favorites among beneficiaries.

5. All beneficiaries and next of kin must be notified and will have an opportunity to be heard in court regarding the validity of the decedent’s last will and testament.

6. The probate court may require an executor to obtain an insurance bond to protect the estate assets from loss or misappropriation.

7. The executor must file and provide to beneficiaries a complete list of all estate assets and their values known as an inventory.

8. The beneficiaries may object to the list of estate assets and the probate court can settle disputes related to the inclusion or exclusion of certain assets in the estate.

9. The probate court can resolve disagreements among family members through hearings or mediation proceedings.

10. The beneficiaries will receive clear title to the assets they receive and proof of the current market value for tax purposes.

11. An executor has the power to make funeral arrangements.

12. An executor must pay decedent’s debts before the assets are administered to beneficiaries.

13. An executor must file decedent’s tax returns and pay taxes due.

14. Before the estate is closed, the executor must complete a detailed accounting of all assets received, property sold, bills paid, and funds disbursed. Beneficiaries have an opportunity to object to the accounting.

It is important to consult with a trusted attorney and explore options when creating an estate plan. While it may be contrary to popular opinion, some people actually prefer the oversight that probate court provides. The attorneys of Laribee Law, LLP are here to assist you.

Establishing the Validity of a Will or Trust

Mon, 22 Aug 2022 16:13:46 GMT

John is the patriarch of a large family horse farm. He is the sole owner of the property which contains hundreds of acres, valuable equipment, and more than twenty horses. His children, Beth and Luke, both work on the family farm along with Cole, a long-time faithful employee. Beth and Luke always expected to inherit the horse farm from their father.

However, John began to question certain actions by Beth and Luke that were not in the best interest of the horse farm. He decided to name Cole as the primary beneficiary of the horse farm as well as all of the valuable horses. Beth and Luke were enraged. They promised to do everything within their power to convince a court to throw-out John’s will and trust. They threatened to claim that John was kicked in the head by a horse and lost his ability to think clearly. Can John do anything to make sure that his will and trust are honored?

Ohio law provides a procedure through which a testator (the person making a will or trust) can ask a court to make a finding that his will or trust is valid before he dies. To initiate the process, the testator must file a complaint in the probate court where he lives. Only the testator can file such an action. It cannot be filed by the testator’s guardian or power of attorney. The complaint must include an express written waiver of the testator’s physician-patient privilege. This allows the court access to the testator’s medical records.

The testator must name all of the following as party defendants in the case: (1) the testator's spouse; (2) the testator's children; (3) the testator's heirs who would inherit if the testator died without a will; (4) the testator's beneficiaries under the will; (5) any beneficiary under the testator's most recent prior will. The testator may also name any other person that the testator believes may have a monetary interest in the validity of the testator's will or trust.

The court will examine the will and trust documents and declare whether they meet all of the requirements of Ohio law. The court will also determine whether the testator has the legal capacity to establish the will or trust, was free from undue influence, and was not under restraint or duress. Also, the court will verify that the execution of the will or trust was not the result of fraud or mistake. Unless the will or trust is modified or revoked later, no person who was included as a party to the case may contest the validity of the will or trust upon the testator’s death. However, the court’s ruling is not binding on any person who was not named in the action.

After the case is complete, the testator is free to modify or amend his will or trust. However, the court’s ruling does not include later amendments or modifications to the documents. The law is also clear that failure of a testator to file a complaint declaring the validity of a will or trust cannot be construed as evidence or an admission that his documents are not valid.

It is important to consult with a trusted probate attorney and explore all options and procedures when creating an estate plan. That way, a testator can guard against the actions of others who may disagree with the testator’s wishes. Laribee Law, LLP is here to assist you.

Esther’s Law: More Protection for Nursing Home Residents

Thu, 05 May 2022 20:07:35 GMT

In the end of December 2021, Governor Mike DeWine signed legislation commonly known as Esther’s Law to provide more protection for nursing home residents in the State of Ohio. The new law grants nursing home residents and their family the ability to authorize and install electronic video devices in resident rooms to monitor the quality of care. It went into effect March 23, 2022.

The law was named after Esther Piskor. The State of Ohio’s Department of Aging reports that for the last three years of her life, Esther was abused and neglected in an Ohio nursing home. She was in her 70s and living with dementia. The Department of Aging states that Steve Piskor, Esther’s son, put a hidden camera in Esther’s nursing home room. The video recording captured aides yelling at Esther, spraying liquid into her face, handling her roughly, and neglecting her for long periods of time.

Esther passed away in May 2018. Her son then worked with Ohio lawmakers to draft the law. The Ohio Statehouse News Bureau reported that two nursing home aides went to prison for their treatment of Esther.

Esther’s law provides that a resident (or a resident's guardian or attorney in fact) may authorize the installation and use of an electronic monitoring device in the resident's room in a long-term care facility. The cost of the device and the cost of installing, maintaining, and removing the device must be paid for by the resident (or the resident's guardian or attorney in fact).

A long-term care facility may require the resident (or resident's guardian or attorney in fact) to complete a form which includes an acknowledgment that the resident (or resident's guardian or attorney in fact) has consented to the installation and use of the recording device in the resident's room. If a resident lives in a room with another resident, the other resident must consent to the installation of the recording device. If a resident’s roommate refuses to consent, then the facility is required to make a reasonable attempt to move either resident to another available room with the consent of the resident being moved. The form may also contain a provision that the facility is released from liability in any civil or criminal action for a violation of a resident's right to privacy.

A resident who has authorized the installation and use of an electronic monitoring device may withdraw that authorization at any time. Also, a long-term care facility may post a notice in a conspicuous place at the entrance to a resident's room stating that an electronic monitoring device is operating in that room.

The full text of the statutes which make up Esther’s Law can be found in Ohio Revised Code Sections 3721.60 to 3721.67.

If you or a loved one is concerned about their safety within a long-term care facility, it is important that you consult with a trusted attorney to explore the rights of nursing home residents. Laribee Law, LLP is here to assist you.

Fiduciary Duty: What is it? Why is it so important?

Thu, 10 Mar 2022 23:02:50 GMT

A probate court has appointed you as the executor of an estate. Or, maybe you are serving as the trustee of a trust. As you begin to administer the estate or trust, you may hear the term “fiduciary duty.” But what does this mean to you in your new position? Essentially, it means everything.

Ohio law defines "fiduciary" as a person who has a duty to act primarily for the benefit of another. Fiduciaries include executors and administrators (in estates), trustees (in trusts), conservators (in conservatorships), and guardians (in guardianships). Every fiduciary must act with the highest standard of integrity, utmost good faith, and reasonable diligence and care for the benefit of beneficiaries or wards. That is the fiduciary duty. As a general rule, a fiduciary fulfills her duty if she exercises the care, skill, and diligence of a person of ordinary prudence dealing with the person's own property.

A fiduciary’s powers and duties in Ohio are governed by statutes, common-law, and the written document which nominates and establishes the fiduciary. A few specific examples of the fiduciary duties are:

1. Duty of loyalty to beneficiaries. A fiduciary must never act in a way that benefits other parties over the beneficiaries.

2. Duty to deal impartially with beneficiaries. A fiduciary must follow the terms of a will or a trust strictly and cannot unfairly favor one beneficiary over another.

3. Duty to keep beneficiaries informed. A fiduciary should communicate with beneficiaries regularly and provide accountings of assets and liabilities as well as statements detailing how the fiduciary has spent or invested funds.

4. Duty to avoid conflicts of interest. A fiduciary must never use estate or trust property to benefit themselves or enter into any agreements on behalf of the estate or trust which would benefit the fiduciary rather than the beneficiaries.

5. Duty not to delegate powers. A fiduciary cannot shift his responsibility to complete tasks to another person. Of course, the fiduciary may hire attorneys, financial advisors, and accountants to provide advice and to assist them with fulfilling their duties to the trust or estate. In the end, though, the fiduciary always remains liable to the beneficiaries.

6. Duty to control and preserve property. A fiduciary must take control of trust or estate funds and deposit them in a separate account. She must never commingle her own money with estate or trust funds. Further, fiduciaries must safeguard and inventory property and insure it against destruction or theft.

7. Duty to make property productive and to avoid waste. When a fiduciary expects to serve for an extended time, she should make sure that funds are invested in a way that will generate growth. Likewise, she must not unreasonably risk loss of funds in speculative investments.

8. Duty to pursue claims. A fiduciary must pursue money that is owed to the estate or trust and recover assets through lawsuits or other collection procedures.

9. Duty to reject claims. A fiduciary must defend the estate or trust against invalid creditor claims. He must only pay valid trust or estate expenses.

If a fiduciary breaches her duties, she must answer to the beneficiaries for any financial loss. There is no requirement that the fiduciary acted with bad intentions. The beneficiary must only prove that the fiduciary failed to use reasonable care, skill, and diligence and that the trust or estate suffered loss as a direct result.

It is important that you explore your responsibilities as a fiduciary with a trusted attorney before you begin administering an estate or trust. That way, you and the beneficiaries will be protected. The attorneys at Laribee Law, LLP are here to assist you.

Joint Bank Account with a Child? Convenience may not be Worth the Risk

Fri, 17 Dec 2021 22:55:01 GMT

Paul was a saver. Every year, he set aside money for his retirement. He kept the majority of his funds in a simple savings account at the local bank. It was Paul’s wish that his three sons, Ringo, George and John would share the money equally upon his death. But, Paul was concerned that his children would not have access to the funds to pay his bills in the event he became incapacitated. A bank clerk instructed Paul to put one of his sons on his account. That way, the bank clerk explained, his son would have full power to manage the funds. So, Paul listed Ringo as a joint owner on his account since Ringo lived closest and had time to assist Paul if necessary.

A few months later, Paul checked the balance of his account. He saw that all the funds had been seized by a collection company and were now being held by the local court clerk. Paul was confused because he had no outstanding debt. He examined the court docket and realized that a credit card company attached the funds to satisfy a large judgment against Ringo. Paul learned that Ringo ran up his credit cards buying expensive drums and other musical instruments. When Paul called the bank to complain, the bank clerk said there was nothing he could do. Since the funds were held in a joint account with Ringo, they were fair game for Ringo’s creditors.

While joint accounts may seem like an attractive method to allow another to manage funds, there are some serious risks. Once money is deposited into a joint account, it belongs to both account holders equally, regardless of who deposited the money. Either account holder can withdraw, spend, or transfer money in the account without the consent of the other person. That means the creditors of a joint owner can attach all of the funds to satisfy the joint owner’s debts. Likewise, the spouse of a joint owner may claim an interest in the funds.

Perhaps more importantly, a joint account may not be consistent with the account owner’s estate plan. When a joint account holder dies, the money in the account automatically goes to the other account holder without passing through probate. That means upon Paul’s death, Ringo would own the funds in the account. Ringo would have no legal obligation to share the funds with his brothers.

There are several ways Paul could have done things differently. First, he could have designated one of his sons as his agent in a financial power of attorney. That way, his son could manage the account, but his son’s creditors could not reach Paul’s assets. Second, banks often allow account owners to name a power-of-attorney on a specific bank account with the ability to write checks. Third, Paul could have listed his sons as transfer-on-death (T.O.D.) beneficiaries on the account. T.O.D. beneficiaries receive no interest in an account until the death of the account owner. Again, this shields the funds from his son’s creditors during Paul’s lifetime. Fourth, Paul could have established a revocable living trust to hold title to the account. The trust could provide for management of the funds upon Paul’s incapacity and distribution to his sons upon Paul’s death. Further, the trust could be drafted to hold the funds for the benefit of his sons in the event they have creditors waiting to pounce.

It is important that you explore your options with a trusted probate attorney before you use bank accounts as a part of your estate plan. That way, your funds are not at risk and will go to your intended beneficiaries. Laribee & Hertrick, LLP is here to assist you.

No Last Will and Testament? Some Children May Not Inherit

Fri, 22 Oct 2021 18:00:37 GMT

Mason always told people he had five children. Actually, he only had three biological children. The other two were his stepchildren Mason raised after his second wife passed away. He treated all five children equally and made no distinction among them whether they were blood relatives or not. To Mason, they were all the same.

As with many families, Mason’s biological children did not get along with his stepchildren. As the years passed, the divide between the biological children and stepchildren grew. When Mason died, his stepchildren discovered that Mason failed to execute a last will and testament or any other estate documents. They learned, to their dismay, that they would not share in Mason’s estate since Ohio law did not consider them to be his children.

I have previously written about the distribution of estate assets when a decedent dies without a last will and testament. Ohio law prioritizes the decedent’s next of kin through the statute of descent and distribution. The probate court uses this statute to identify the legal next of kin and to prioritize distribution of estate assets. A surviving spouse and children enjoy the highest priority of rank. However, there are often disputes about who qualifies as a child of a decedent. The law provides that children are “one degree removed in kindred from the decedent.” But are adopted children included? What about stepchildren? What about children whose paternity has not been established? The short answer: unless a decedent established a parent-child relationship before their death or name them in a last will and testament, then these children will not inherit from the decedent.

There are several ways legally to establish a parent-child relationship for purposes of inheritance.

A common way is through a certified birth certificate. Courts and government offices must rely on the facts set forth in the document. However, it is important to note that birth certificates can be rebutted by some other evidence like the results of genetic testing.

Another way is through adoption. The adoption process creates a relationship equal to a blood descendant, so an adopted child will inherit from a decedent the same as a biological child. Stepchildren and foster children, however, will not inherit from the decedent unless the decedent adopted them prior to death or the decedent named them in his last will and testament.

Ohio’s Parentage Act provides another method. This law sets forth circumstances under which a man is presumed to be the natural father of a child under any of the following circumstances:

(1) The man and the child's mother are or have been married to each other, and the child is born during the marriage or is born within three hundred days after the marriage is terminated by death, annulment, divorce, or dissolution;

(2) The man and the child's mother attempted before the child's birth to marry each other by a marriage that was solemnized in apparent compliance with the law of the state in which the marriage took place and the child is born during the marriage or within three hundred days after the termination of the marriage by death, annulment, divorce, or dissolution; or

(3) The man files an acknowledgment of paternity in the office of child support in the department of job and family services.

There is also a procedure whereby a person can identify his or her heirs publicly before they die. They do this through the county probate court by executing a declaration before the judge and two disinterested witnesses that designates the person’s heirs at law.

Ultimately, to avoid any question, it is best to name beneficiaries in a last will and testament or other estate planning document. Mason could have included his stepchildren in this way. If you have any questions about providing for loved ones upon your death, you should consult with a trusted probate attorney to make sure that nobody is left out. Laribee & Hertrick, LLP is here to assist you.

Filing a Last Will and Testament for Safekeeping: Is It Required?

Fri, 13 Aug 2021 16:56:34 GMT

Our clients often ask if they must file their executed last wills and testaments with a court or government office. The answer is no. In Ohio, there is no legal requirement to file or record a last will and testament before the person dies.

However, there is a process in Ohio whereby the testator, the person making the will, can deposit the original will with the probate court in the county where the testator lives. There is a small filing fee set by Ohio statute (currently $25.00). Every deposited will must be enclosed in a sealed envelope that sets forth the name of the testator, the date of delivery, and the name of the person who delivered the will.

Afterward, the probate judge shall keep and safely maintain the will. The deposited will shall not be a public record until after the testator dies. During the testator’s lifetime, the court may only deliver the will to the testator, to some person authorized by the testator, or to a probate court to determine the validity of the document upon the testator’s request. After the testator's death, the court must, if requested, deliver the will to any person named on the envelope of the will. If no person named on the envelope demands the will, the court must open the will publicly within one month after notice of the testator's death and must notify the executor named in the will.

If a will is not disposed of within one hundred years after its deposit, then the judge may dispose of it. The judge must retain an electronic copy of the destroyed will, however.

Filing a will with the probate court before death may have some unanticipated consequences. It is not uncommon for testators to execute several wills during their lifetimes. By law, the most recently executed will governs a testator’s estate. There could be confusion if a filed will is not a testator’s most current will. If the testator’s family is unaware of a newly executed will, the previously filed will could be used in the testator’s estate administration. Accordingly, if a testator files her will, she must make sure that any subsequently executed wills are also filed with the probate court before her passing. Otherwise, her intended beneficiaries may not inherit from her.

Often, an attorney’s office will hold a testator’s original will for safekeeping. The attorney must return the original document to the testator, if requested, or to the named executor upon the testator’s death so he can begin an estate administration. Before filing your will, it is best to consult with a trusted probate attorney to best safeguard and protect the document. The attorneys at Laribee & Hertrick, LLP are here to assist you.

Adjoining Landowner Liability: Tree Damage

Fri, 18 Jun 2021 17:14:53 GMT

Althea was proud of the many beautiful trees on her property. She especially liked one very large maple tree located near the property line. Her neighbor, Jed, maintained a shed on his property. Several large branches of Althea’s maple tree crossed the property line and hung over his shed. During a particularly bad windstorm, a large branch broke off and fell. It crushed Jed’s shed. Jed demanded that Althea pay for the repairs. Must Althea fix the shed? Under these circumstances, probably not.

In Ohio common law, a landowner is generally not responsible for damages caused by the natural condition of her land. This includes natural dropping of leaves and other ordinary debris from trees. If a storm causes an otherwise healthy tree to fall or drop branches, the tree’s owner will not be held liable. The underlying rationale for this principle: courts do not want people filing lawsuits every time a neighbor’s tree or its branches fall on their property. So, courts decline to impose liability upon an adjoining landowner for what they call “the natural processes and cycles” of trees, plants, roots, and vines.

But, if we change the facts a little bit, there may be a very different result. Suppose Althea’s maple tree was decayed and dying and Jed complained to Althea several times that dead branches will damage his shed. If a windstorm then caused a decaying branch to snap and fall on Jed’s shed, Althea may be responsible for the repair costs.

Ohio law imposes a duty of reasonable care on landowners who have actual or constructive notice of decaying, defective, or unsound trees. In other words, if a landowner actually knows (or has reason to know) that his tree could cause damage to people or property, the landowner needs to take reasonable steps to prevent that harm. This is especially true in suburban and urban areas where parcels are smaller. Ohio courts have taken the position that it is not excessively burdensome to impose the duty upon urban landowners to reasonably know the condition of their trees.

How can Jed protect himself? Ohio law provides that Jed has the right to “cut off, sever, or otherwise eliminate” the branches of Althea’s tree which encroach on his land. However, he must not recklessly trim the encroaching branches or cause unnecessary damage. If he does, he is subject to a misdemeanor criminal charge and may have to pay Althea treble damages for the value of the tree and any change in her land value. If Althea’s tree is decayed or dying, Jed should notify her in writing. That way, there is proof that Althea was aware of the tree’s unsafe condition.

If you believe a neighbor’s tree poses a threat to your property, it is best to consult with a trusted real property attorney who can review your unique facts and provide proper guidance. The attorneys at Laribee Law, LLP are here to assist you with all questions of landowner liability.

Purchasing Farmland? Watch CAUV Tax Recoupment

Mon, 12 Apr 2021 18:14:58 GMT

Charles and Carolyn always dreamed of building a home in the country with plenty of land. When a local farmer listed a twelve-acre parcel for sale, they jumped at the opportunity. The farmer had used the land exclusively for growing soybeans for the past ten years. Charles and Carolyn planned out the location of their new homesite which included construction of a large lake. They were not farmers and had no intention of growing crops on the land.

The sale closed without a hitch. Charles and Carolyn built their dream home and settled into their new rural surroundings. The following year, they received their real property tax bill from the local treasurer’s office. To their dismay, their tax bill contained a line item for “CAUV recoupment” with a large tax due. Charles and Carolyn contacted the local auditor’s office to question the charge. The auditor clerk confirmed that the tax amount was correct and explained that it was a result of failing to continue qualifying agricultural activities on the land. Charles and Carolyn consulted with an attorney and learned that they were stuck with the tax because their purchase agreement did not require the seller to pay this tax recoupment.

The Current Agricultural Use Value (CAUV) is a provision in Ohio law that allows tax values for agricultural land to be set well below true market values. This results in a substantially lower tax bill for working farmers.

Generally, CAUV land includes ten or more acres of land devoted exclusively to commercial agricultural use. Parcels under ten acres can be included in CAUV provided that the farm produce an average yearly gross income of at least $2,500. The owner of agricultural land must file an application with the county auditor requesting the auditor to value the land under CAUV values. The Ohio Department of Taxation sets the CAUV values for each of Ohio's soil types and posts them yearly.

The agricultural use includes animal or poultry husbandry, aquaculture, algaculture (farming of algae), apiculture, the cultivation of hemp (by a person issued a hemp cultivation license) and the production for a commercial purpose of timber, field crops, tobacco, fruits, vegetables, nursery stock, ornamental trees, sod, or flowers.

But what happens when property is sold and no longer used for commercial agricultural use? Ohio law provides that when land registered in CAUV no longer qualifies, the tax savings under CAUV must be recouped. The county auditor must levy a charge on the land in an amount equal to the amount of the tax savings during the three tax years immediately preceding the sale. This becomes a lien on the property just like traditional real property taxes. In other words, the new owner gets a tax bill for the tax savings the seller enjoyed over the past three years.

Accordingly, when purchasing or selling farmland, it is very important to address the issue of CAUV recoupment in purchase agreements. The parties should negotiate who will pay the tax recoupment if it is levied. Oftentimes, the buyer will be given a credit at closing equal to the amount of tax recoupment. That way, the buyer will have the funds to pay the tax bill when it comes due. Other times, a purchase agreement states that the buyer must continue qualified farming activity on the land or pay the recoupment. It is important to consult a trusted real property attorney to address the proper allocation of CAUV tax recoupment when buying farmland. Otherwise, you may receive a surprise tax bill in the mail. The attorneys at Laribee & Hertrick, LLP are here to assist you.

Creditor Claims in an Estate

Wed, 10 Feb 2021 21:20:35 GMT

One of the fundamental responsibilities of an estate executor is to pay the legitimate debts of the estate. However, an executor must know which claims he must pay and which he may reject as invalid.

To allow estates to be administered with finality, Ohio law sets a deadline for creditors to submit claims to an estate. With very limited exceptions, creditor claims must be presented within six months after the death of the decedent. If a claim is not presented timely, it is forever barred and the creditor cannot reach the assets within an estate. In fact, the Ohio statutes provide that the executor shall not pay untimely creditor claims.

Creditor claims must be made in writing and may be presented in three ways:

(1) To the executor;

(2) To the executor and to the probate court; and,

(3) to the decedent’s address provided that the executor actually receives the claim.

It is important to note that the claim deadline applies even if an executor has not been appointed during the six-month period. If a decedent has many creditors, it may be advisable to wait six months to open an estate. To preserve a claim, a creditor will have to take the affirmative step of opening the decedent’s estate himself for the sole purpose of presenting the claim.

If an executor knows of a potential claim, he may accelerate the deadline. To do so, the executor must give written notice to the potential creditor that identifies the decedent by name, states the decedent’s date of the death, identifies the executor or administrator by name and mailing address, and informs the potential creditor that any claims must be presented to the executor in writing within thirty days or six months after the date of decedent’s death, whichever is sooner.

Once a creditor properly presents a claim to an estate, the executor must determine if the claim is legitimately owed by the decedent. The executor must either allow or reject the claim in writing within thirty days. If an executor rejects the claim, the creditor must file a formal lawsuit against the estate within two months or the claim is forever barred. A probate court will not allow an estate to close until an executor allows or rejects a properly presented claim.

The review and rejection of creditor claims in an estate is complicated. The way claims are handled can dramatically affect the solvency of an estate and the amount of assets beneficiaries receive. It is important to consult a trusted probate attorney to make sure the estate only pays claims that are legitimate and presented timely. The attorneys at Laribee Law, LLP are here to assist you.

Failure to Record a Deed: Does Title Transfer?

Mon, 21 Dec 2020 14:15:01 GMT

Walter owned a beautiful piece of property in rural Ohio. His brother-in law, Hank often used the property for hunting. Walter decided to give the property to Hank. He signed a quit-claim deed naming Hank as the grantee and hand-delivered the deed to him. Hank gratefully took the deed and put it in the top drawer of his desk at home. Although Hank intended to record the deed at the county recorder’s office, it remained in the desk for several months. Sadly, Hank passed away in a work-related accident before he recorded the deed.

When Walter reviewed the property records of the county recorder, he saw that he was still listed as the title owner of the property. Walter listed the property for sale, hoping to sell to a land developer. Before Walter could find a buyer, Hank’s widow, Marie, found the deed in Hank’s drawer. She confronted Walter and argued that he cannot sell the property since he gave it to Hank. Walter said that Hank did not own the property because he failed to record the deed. Who is right?

In Ohio, there are several requirements to validly transfer ownership of real property. Deeds must be properly signed by the grantor and acknowledged by a notary. Then, deeds are recorded in the county recorder’s office where the real property is located. The act of recording puts the public on notice who owns the property. But Ohio law is clear that recording a deed is not required to pass title. Whether recorded or not, a deed in Ohio passes title upon its proper execution and delivery to the grantee.

The law states that actual delivery of the document is sufficient to transfer ownership between the parties. Acceptance of the deed by the grantee is part of the delivery process. Delivery and acceptance together show a mutual intention of the parties to pass title. If the grantee possesses the deed, then a presumption of delivery exists. Ohio cases hold that title can pass between parties even though manual delivery is impossible. In those cases, delivery may be found from the acts of the parties before, during and after the execution of the deed.

So, under our facts, when Hank accepted the deed from Walter, the real property effectively transferred to Hank. Walter no longer has an interest in the real property. But what if Walter refuses to recognize Hank’s ownership?

Ohio law has a remedial device used to prevent fraud and unjust enrichment in these cases. It is called a constructive trust. Through a constructive trust, a court uses principles of equity to make things right. If a holder of title may not in good conscience retain his interest, then the law considers him as a trustee for the rightful owner. A court has broad discretion to order conveyance of real property to another in the interest of fairness.

If you find yourself in a dispute regarding the transfer of real property in Ohio, it is important to consult a trusted real property attorney. The attorneys at Laribee & Hertrick can assist you to make sure that fairness and equity prevails.

The Importance of Funding Revocable Trusts

Mon, 23 Nov 2020 20:17:49 GMT

The main goal of any estate plan is to pass assets to heirs as simply as possible. People often use revocable trusts to avoid a probate court administration and to provide a structured way to manage assets upon their incapacity or death. But it is not enough for the grantor (the person making the trust) simply to sign a trust agreement. Unless the trust is "funded," a grantor’s assets will not avoid probate court as designed. Worse yet, the assets may not go to the beneficiaries named in the trust.

A revocable trust only controls the assets placed into it. The trustee of a revocable trust has no power whatsoever over property that has not been titled in the name of the trust. That means assets will have to go through probate court and the grantor’s last will and testament directs who receives the assets. This may be different than the provisions of the trust. Further, if a grantor owns assets in multiple states and they are not titled to the trust, the grantor’s heirs will need to open an ancillary probate administration in the secondary states as well as a probate estate in Ohio.

If a grantor becomes mentally incapacitated, the trustee cannot manage assets outside the trust for her care. Her family may need to establish a court-supervised guardianship to manage the assets that are not held in the name of the trust.

Funding a trust is not difficult. Basically, it involves changing the titles of assets from a person’s individual name to the name of the trust. For instance, a brokerage account in the individual name of “Joe Smith” is not in the trust. For the account to be included in the trust, the account should read something like this: “Joe Smith, Trustee of the Smith Family Revocable Trust, dated November 13, 2019.” A trust agreement sets forth the formal name of the trust.

To retitle an account, a financial institution may require proof of the trust. The grantor usually provides a certification of trust which is a short-form summary of the trust agreement. It verifies the trust’s existence, identifies the trustees, and list the powers given to the trustee to manage the trust assets. The certification does not reveal any information about trust assets or how much beneficiaries inherit.

Normally, real property is transferred to the trust by recording a quit-claim deed in the county land records. For property that does not have a title (jewelry, collectibles, household appliances, tools), a grantor can execute an assignment of property designating the trust as the owner of those assets.

Most often, a pour-over last will and testament accompanies a trust agreement. It acts as a safety net in case a trustor accidentally leaves property outside of the trust. But, the property must first go through probate court before being transferred into the trust. It is important to consult with a trusted probate attorney to assist you in forming and funding a revocable trust to avoid this unnecessary step. Laribee & Hertrick, LLP will make sure that the trustee has the full power to manage your trust assets and that your assets go where you intended.

Executing Wills: Beneficiaries Should Not Be a Witness

Mon, 23 Nov 2020 20:16:22 GMT

Jessie was very close with his son Luke. They had a mutual interest in race cars and spent a great amount of time together at the local racetrack after Jessie’s wife died. Although Jessie had three other grown children, he wanted Luke to inherit his entire estate. One day, he asked Luke to his house. Jessie was signing his last will and testament and asked Luke and a neighbor to serve as witnesses. The will named Luke as the sole beneficiary of all of Jessie’s assets. Luke and the neighbor signed the instrument on the witness lines after watching Jessie sign his will.

After Jessie passed away, Luke took the will to an attorney to assist him with the estate. He was disappointed to learn that the bequest to him was void. Jessie’s estate would be divided equally among his four children with Luke receiving just twenty-five percent.

I have previously written about the basic requirements to create a valid last will and testament in Ohio. A written will must be signed at the end by the party making it (the “testator”) and the will must be attested and signed by at least two competent witnesses who saw the testator sign it or heard the testator acknowledge his or her signature on the will.

The reason for the witness requirement is obvious. In the event there is a dispute over the genuineness of the will, the law allows an interested party to compel the testimony of a witnesses under oath in court that the testator was of sound mind and memory and was not under any restraint at the time of the will's execution.

But what happens if one of the witnesses, like Luke, is also listed in the will as a beneficiary? Ohio law provides that a bequest made to a person who is one of only two witnesses to a will is void. The purpose is to ensure the validity of a will. A person who does not have an interest in the will is generally a more credible witness than a person who stands to gain financially from it. It is important to note that the entire will is not invalid. The only portion affected is the bequest to the witness.

Witnesses who are also beneficiaries may not be completely out of luck. If there are more than two witnesses on the will, then the bequest may stand. Also, like in Luke’s case, if the witness would be entitled to a share of the testator's estate if there was no will, then the witness can inherit the portion of that share that does not exceed the bequest listed in the will. Since Jessie was unmarried, his four children would inherit his estate if he died without a will. At least Luke will receive twenty-five percent.

It is very important that you consult with a trusted probate attorney when executing estate planning documents. Doing things without legal advice can lead to results that are not consistent with the testator’s intent. Laribee & Hertrick, LLP is here to assist you.

Relief of Estate from Administration: Streamlining Small Estates

Mon, 23 Nov 2020 20:15:30 GMT

The main goal of any estate plan is to pass assets to heirs as simply as possible. For many people, that means taking steps to avoid probate court. They may use revocable living trusts or transfer-on-death designations on bank accounts to make sure their assets pass directly to beneficiaries. Sometimes, despite all good intentions, a missed asset must go through probate court. However, depending on the value of the asset, a full estate administration may not be required.

Ohio law provides for a streamlined process for small estates that avoids opening a traditional probate estate. It is called an Application for Relief from Administration and it avoids the normal requirements of an estate. No executor is appointed. There are no inventories or accountings to file. There is no estate checking account.

The process is available when the total value of assets does not exceed $35,000 (or $100,000 when the decedent's surviving spouse is entitled to inherit all assets). The total value of assets in the Relief from Administration does not include non-probate assets that pass outside of probate court pursuant to joint ownership, beneficiary designations, or transfer-on-death affidavits.

Basically, any probate asset can be part of the Relief from Administration including real estate, personal effects, chattels, bank accounts, vehicles, and securities. An appraiser is needed for assets which do not have a readily ascertainable value.

While the process is much faster and easier than administering a traditional estate, there are still some issues an applicant should keep in mind. She must notify the surviving spouse and heirs that she has filed an application to relieve assets from administration. The probate court will determine the manner of service and whether newspaper publication is required. Also, the applicant must notify the Medicaid estate recovery program in the event the decedent received benefits prior to death.

The applicant must also determine whether the decedent owed money to creditors. A probate court will not relieve an estate from administration if creditors will be prejudiced. Also, the Relief from Administration does not eliminate the need to file an estate tax return, if required.

An Application for Relief from Administration makes short work of the probate process for smaller estates. To be sure that that you do everything correctly, is important to consult with a trusted probate attorney. Laribee & Hertrick, LLP is here to assist you.

Cleaning Up Title to Real Property: Removing Old Oil and Gas Leases

Mon, 23 Nov 2020 20:14:07 GMT

Elmer wanted to sell several acres of vacant land that his family owned for several generations. He found a buyer and they signed a purchase agreement. Before closing the deal, the buyer wanted to make sure there were no title defects affecting the land. Elmer hired a title company to issue a title report.

A search of the title records revealed that Elmer’s grandfather signed several oil and gas leases affecting the property, dating back more than 70 years. While the land had not produced oil or gas for many decades, none of the leases were terminated officially on the property records. The buyer, concerned that the leases may prevent the development of the land, would not proceed with the purchase unless Elmer terminated the leases. Elmer tried to contact the oil and gas companies named on the lease documents, but they were no longer in business. How could Elmer remove the leases if the oil and gas companies were no longer in existence to release their interest?

Ohio Revised Code §5301.332 provides for a process by which non-producing oil and gas leases may be forfeited on the title records. However, two basic conditions must be met first. One, the oil or gas wells subject to the lease must not be producing oil or gas. Two, either the term of the lease has expired or the oil or gas company has failed to abide by specific covenants of the lease. In other words, a property owner cannot unilaterally forfeit an active lease.

Provided that these conditions are satisfied, the property owner may file an affidavit of forfeiture with the county recorder after serving formal notice on the oil and gas company. If the owner cannot find an address to serve the oil and gas company, then he can publish notice in a newspaper of general circulation in the county in which the land is located. The notice or publication must contain the owner’s name, a general description of the land, the number of acres, the date of the lease, the volume and page of the lease, and the reason for the forfeiture. It shall also state that the owner will file an affidavit of forfeiture with the county recorder if the oil or gas company does not cancel the lease within 30 days.

After 30 days, the owner may file the affidavit of forfeiture with the county recorder. The affidavit must include: the volume and page of the oil or gas lease; a statement that either the term of the lease has expired or that the oil and gas company has failed to comply with specifically described covenants of the lease; that there are no producing or drilling oil or gas wells on the leased premises; that the lease has been forfeited and is void; and that notice was served on the oil or gas company.

An oil or gas company has 60 days from owner’s notice to contest the lease forfeiture. It does this by notifying the owner and filing its own affidavit with the county recorder stating that the lease is still valid. If, however, the oil or gas company fails to file such an affidavit within 60 days, then the lessor may record a notice with the county recorder stating that the lease is officially cancelled. Thereafter, the lease shall have no further effect and will not affect the title to the property.

Oil and gas leases often contain clauses that allow pooling of properties together into a larger producing unit. This can extend the life of the lease if other properties located within a pooled unit are producing a minimum amount of oil or gas. Sometimes a property is included in a pooled unit even though there are no physical wells or equipment on that property. Leases are often assigned to several different companies after the original lease document is recorded.

If you wish to terminate old oil and gas leases that affect your real property, it is important to consult with a trusted real estate attorney to guide you through this complicated process. The attorneys at Laribee & Hertrick, LLP are here to assist you.

Guardianships: How to nominate a guardian.

Mon, 23 Nov 2020 20:13:14 GMT

How does guardianship work in Ohio? The purpose of a guardianship proceeding is to protect the rights of a person who is unable to manage his or her own affairs due to mental illness, physical illness, mental retardation, or chronic substance abuse. Probate courts have the sole authority to appoint and remove guardians in Ohio.

But how can a person make sure that the probate court appoints their preferred guardian to manage their health and finances if the need arises? Ohio law about gaurdiaship provides that the person may nominate a future guardian in a signed writing. That way, the probate court will consider the nomination if guardianship proceedings are commenced at a later time.

To be effective, the nomination must be in writing and signed by the person making the nomination in the presence of two witnesses or a notary public. Often, the nomination is contained within a power of attorney. The document may be filed with the probate court for safekeeping, but it is not required.

In the state of Ohio a guardianship nomination has some additional benefits:

The person may authorize the nominee to name a successor guardian for consideration by a court.
This is helpful if the nominee finds they are unable to serve.
The person can instruct the court to waive the normal insurance bond requirement.
This saves time and money.

A probate court may appoint a nominee who does not reside in Ohio. If there is no written nomination, a probate court may only appoint Ohio residents for guardians over finances.

What happens if a probate court receives more than one application to be guardian for the same person? In that case, the court will appoint a nominee over someone who is not nominated provided that the nominee is competent, suitable, and willing to accept the appointment. This situation often occurs when family members are fighting.

Can a person change her nominee? The simple answer is yes. The person must make a subsequent nomination in writing. Except for good cause or disqualification, the probate court will appoint the person's most recent nomination. If the first writing was filed in probate court, it is important to file the subsequent writing so there is no confusion which document controls.

If you are looking to nominate someone to be your guardian in the future, it is important that you consult with a trusted probate attorney so they can properly guide you. If a nomination does not comply with Ohio law, your desired guardian may not be appointed. Laribee & Hertrick, LLP is here to assist you.

Need a lawyer or have legal questions? Contact Attorneys in Medina , Ohio from Laribee & Hertrick, LLP.

Do you want answers to questions about how guardianship laws in ohio?

The following attorneys engage in questions and can offer legal advice about guardianship at our firm in Medina, OH:

• Michael L. Laribee - Attorney at Law

• Marc R. Hertrick - Attorney at Law

Will Contests; Grounds to Set Aside a Will

Mon, 23 Nov 2020 20:11:04 GMT

Aunt Effie was very fond of her niece, Penny. Since she had no children of her own, Aunt Effie treated Penny like her own daughter. She had carefully drafted a last will and testament with her attorney, naming Penny as the only beneficiary of her considerable estate.

As years went by, Aunt Effie started to show signs of confusion and forgetfulness. Sammy Shyster, Aunt Effie’s neighbor, began helping her with simple chores around her house. Before long, Sammy was helping her write checks and manage her finances. Aunt Effie appreciated the assistance. However, Sammy had an eye on Aunt Effie’s money. He began manipulating Aunt Effie and alienating her from her family. Penny lived in a different state and was unaware of Sammy’s bad intentions and how quickly Aunt Effie was declining.

One day, Penny received a call that Aunt Effie passed away. It soon came to light that Aunt Effie had updated her last will and testament a month before she died. The new will was handwritten and named Sammy as the sole beneficiary of her estate. The witnesses on the will were Sammy’s children. Penny was not named in the new will at all. Penny believed that Sammy Shyster manipulated Aunt Effie to sign the new will and that she didn’t understand its contents. What can Penny do?

In Ohio, the validity of a will may be contested through a court procedure known as a will contest. The ultimate issue is whether the writing produced is the valid last will and testament of the decedent. Any interested party can initiate a will contest. An interested party is someone who has a direct pecuniary interest in the estate that would be impaired or defeated if the will is found to be valid.

To initiate a will contest, the contestant (the person contesting the will) must file a complaint in the probate court where the will was admitted. The complaint must be filed within three months after the executor gives notice that he filed the decedent’s will with the probate court. All of the decedent’s next of kin and the beneficiaries named in the will must be included as parties in the will contest action. The will contest is treated like a trial. The facts may be heard by the probate judge or a jury. The burden of proof is on the contestant to prove that the will is invalid.

There are several ways that Penny may try to set aside Aunt Effie’s new will. She can argue that the will is invalid because of Sammy’s undue influence. Penny must prove, by the preponderance of evidence, that: Aunt Effie was susceptible to influence; that Sammy had the opportunity to influence Aunt Effie; that Sammy actually exerted undue influence over Aunt Effie; and, that Penny lost her inheritance as a direct result of Sammy’s influence. This is easier said than done. Often, evidence is scarce. Moreover, a physician’s testimony may be necessary to prove Aunt Effie’s susceptibility.

Penny can also argue that Aunt Effie lacked testamentary capacity when she executed the new will. Testamentary capacity exists when the testator (the person making the will) has sufficient mind and memory to: understand the nature of the business in which he is engaged; to comprehend generally the nature and extent of his property; to hold in his mind the names and identity of those who have natural claims upon his property; and, to be able to appreciate his relation to the members of his family. Again, Penny will need a physician to testify about Aunt Effie’s mental condition at the time she executed the new will.

Penny can also challenge the mechanics of the document. She could call the witnesses to the will and cross examine them about how and when Aunt Effie executed the will. Ohio law requires four things to create a valid will: (1) a written document, (2) signed at the end by the testator or the testator's agent, (3) in the presence of two witnesses, (4) who must observe the testator's signature or hear him acknowledge his signature. If these requirements were not met, then a will contest may be successful.

A testator can actually avoid a will contest by submitting her will to a probate court during her lifetime. If a probate judge declares the will valid, then a will contest after the testator’s death is not permitted.

If you have concerns about the validity of a last will and testament, the attorneys at Laribee & Hertrick, LLP can properly guide you.

Ohio’s Financial Responsibility Law: Will It Protect Your Assets?

Mon, 23 Nov 2020 20:08:03 GMT

When meeting clients for estate planning matters, we usually have a discussion about debts or claims which may jeopardize the clients’ assets. Do the clients owe large sums of money? Are there judgments against the client? Are there creditors who can seize the client’s assets? One very common concern: claims for injuries or property damage sustained in vehicle accidents. Sadly, many people don’t carry sufficient insurance to adequately protect their assets. Some drivers don’t even know their policy limits.

Ohio’s Financial Responsibility Law requires every driver who operates a motor vehicle in this state to maintain financial responsibility to cover damages from accidents. Drivers must have insurance with at least the following minimum limits: $25,000 for bodily injury to or death of one person in any one accident; $50,000 for bodily injury to or death of two or more persons in any one accident; and, $25,000 for injury to property of others in any one accident.

Bodily injury liability covers any expenses related to injury of the driver or passengers. This includes medical bills, emergency transport costs, therapy costs, medical equipment, pain and suffering, and lost wages. Property damage liability covers damages to other cars, mailboxes, and physical structures.

Although these minimum limits were increased in December 2013, it is our opinion that they are woefully low. We have seen medical bills far exceed these limits in just one day of emergency treatment. Serious injuries or death could result in liability in excess of hundreds of thousands of dollars.

If a driver causes an accident and the resulting damages exceed their insurance limits, the driver is responsible for paying the excess cost over the insurance coverage. The driver’s personal assets are subject to attachment and seizure if the injured party obtains a judgment against them in court. Basically, a momentary lapse of judgment while driving can forever alter a family’s accumulated wealth.

Another major concern is the large number of uninsured or underinsured drivers on the road. Some studies report the number of uninsured drivers to be 13% nationally. It is very important that drivers carry sufficient insurance to cover their own injuries if they (or their family passengers) are injured by someone without insurance or with the state minimum coverage.

Sufficient coverage will vary depending on each driver’s individual financial status. However, a policy with limits of $500,000 is certainly a good start. Plus, insurance carriers offer umbrella polices which provide coverage of $1 million or more above the base policy limits. These umbrella policies are surprising affordable. It is important to make sure the umbrella coverage applies to uninsured or underinsured claims as well as liability to others.

Don’t jeopardize your estate plan with insufficient insurance. Further, there are certain options, like irrevocable asset protection trusts, which can further shield assets from creditors. Contact Laribee Law, LLP to review your current insurance policies and your estate plan.

This article is intended to provide general information about the law. It is not intended to give legal advice. Readers are urged to seek advice from an attorney regarding their specific issues and rights. To contact an attorney at Laribee Law, LLP, request more information about our legal services today.

Michael Laribee is a partner in the Medina law firm Laribee Law, LLP. This article is intended to provide general information about the law. It is not intended to give legal advice. Readers are urged to seek advice from an attorney regarding their specific issues and rights.

Need a lawyer or have legal questions? Contact Attorneys in Medina from Laribee Law, LLP.

An Agent’s Duties Under a Power of Attorney

Mon, 23 Nov 2020 20:03:59 GMT

A financial power of attorney is an instrument that allows one person to act for another in financial matters.

The person making the document is called the principal. The person designated to act for the principal is called the agent. The document can give sweeping authority for the agent to act in all financial matters for the principal. Most often, it is used when the principal needs assistance in handling their everyday financial affairs like paying bills or handling their banking matters due to mental or physical incapacities.

This creates a special legal relationship between the principal and the agent. Since the principal is often vulnerable, it is important for the agent to act with the utmost care and loyalty. Not only will this protect the principal’s financial interests, but it will protect the agent against claims they have acted carelessly, recklessly, or with a selfish motive.

The Ohio Revised Code provides some general guidelines that agents must follow when they are taking action through a power of attorney.

(1) Do what the principal reasonably expects the agent to do with the principal's property and to act in the principal's best interest.

(2) Always act in good faith.

(3) Do nothing beyond the authority granted in the document. Some powers of attorney limit the agent’s authority to certain transactions or specific time periods. Further, an agent’s power to act always terminates upon the principal’s death.

(4) Attempt to preserve the principal's estate plan if the agent knows the plan and preserving the plan is consistent with the principal's best interest.

(5) Disclose their identity as an agent whenever they act for the principal by printing the name of the principal and signing as agent. The agent should never forge the principal’s signature on documents.

(6) Act loyally for the principal's benefit.

(7) Avoid conflicts that would impair the agent’s ability to act in the principal's best interest.

(8) Act with care, competence, and diligence.

(9) Keep a record of all receipts, disbursements, and transactions made on behalf of the principal.

(10) Cooperate with any person that has authority to make health-care decisions for the principal.

Before an agent begins to take action on behalf of a principal, it is important for an agent to consult with a trusted attorney so the agent understands the document and the parameters of their powers. The attorneys of Laribee & Hertrick, LLP are here to assist you.

Need a lawyer or have legal questions? Contact Attorneys in Medina , Ohio from Laribee & Hertrick, LLP.

Related law articles:

Financial Powers of Attorney: A Very Useful Tool

Considerations for a New Year

Mon, 23 Nov 2020 20:01:23 GMT

As we make our resolutions and set our sights for a prosperous New Year, it is a perfect time to review legal documents and finances. Here are some questions to ponder:

Real Property: Do you own your house jointly with another person? Does your deed contain survivorship language? Have you designated a transfer-on-death beneficiary? The title of property determines whether the property will have to pass through probate court. Do you qualify for any real estate tax reductions programs? Have you reviewed the tax value established by the county auditor? If you believe the tax value is too high, have you filed a complaint against valuation?

Bank Accounts: Have you designated beneficiaries on your accounts? Have you examined the interest rate you are earning on savings accounts or certificates of deposits? Interest rates may have risen in the last year. Do your deposits in one bank exceed the FDIC insurance limits? The standard deposit insurance coverage limit is $250,000 per depositor, per FDIC-insured bank, per ownership category. Can someone access your safety deposit box in the event of emergency? Do you have an organized list of your accounts at home in the event your family needs to locate the banks?

Last Will and Testament: How long ago did you execute your will? Does it comply with Ohio law? oAre Are the named beneficiaries still living? Do you still want the named beneficiaries to receive a bequest from your estate? Are any beneficiaries under 18 year old? Are the named executors still available and willing to administer your estate? Should you add alternate executors? Is your original will located in a safe place where family can find it? Have you deposited a prior will with the probate court? If so, you should make sure that your current will is deposited. Have you designated a guardian to take care of minor children?

Financial and Health Care Powers of Attorney: Are your listed agents still able and willing to act on your behalf? Do you need to consider different or alternate agents? Does your agent have possession of the original documents? Is there a need to expand or restrict the powers your agent can exercise? Does the document cover all of your property and accounts? Have you nominated a guardian to oversee your health and/or finances in the event a guardianship is necessary? Have you considered the extraordinary powers which are available to agents under Ohio law? Was the document properly executed? Financial powers of attorney must be notarized in order to transfer real property.

Living Will: Did you sign the document before a notary or two disinterested witnesses? Is the form readily recognizable by medical facilities? Does it comply with Ohio law? Are the phone numbers and addresses current? Do your family members have a copy of the document or at least know where to obtain it? Did you complete an organ donation form?

Trust documents: Is there a need to update the beneficiaries? Are the named trustees still able to serve the trust? Have you acquired property that has not been transferred to the trust? Have you included a spendthrift provision for beneficiaries who have creditor problems?

Insurance Policies: Have you reviewed the insurance policy on your home to make sure the replacement limits are high enough? Building materials have increased in the last year. Does it make sense to raise your deductible so your premiums are lower? What are the coverage limits on your vehicle policy? Most people don’t know. Do you have sufficient coverage in the event that you are hit by an uninsured driver? Have you considered purchasing an umbrella policy? Is your umbrella policy tied to your uninsured policy for the greatest possible protection? Many drivers on the road today carry minimum insurance coverage which is woefully inadequate in the event of serious injury.

Investments and retirement accounts: Are your beneficiaries up to date? Have you discussed the amount of the minimum required distribution for this year? Have you been contributing the most possible to your retirement account? Have you set aside contributions for your IRA?

Obviously, this list is just a start. Each of the questions above will likely lead to other areas which may need your attention. Laribee & Hertrick, LLP can make sure that you begin the New Year with current and organized leagal documents.

TOD Beneficiaries on Motor Vehicle Titles

Mon, 23 Nov 2020 19:59:39 GMT

We have written articles about non-probate property. These assets pass outside of probate court to beneficiaries by virtue of a title designation which is activated upon death. A common example is a bank account which has a transfer-on-death (TOD) beneficiary listed on the account’s signature card. It is an easy and efficient way to pass assets without probate court involvement.

Many people, however, overlook their motor vehicles. It is unfortunate when the only probate asset in an estate is a vehicle and heirs must seek court approval for its transfer.

Ohio law provides that owners may name transfer-on-death beneficiaries on their motor vehicles, watercraft, and outboard motors. The owner must go to the local title bureau with their original title and designate a beneficiary (or more than one beneficiary) who will become the owner of the motor vehicle, watercraft, or outboard motor upon the owner’s death. The designation is not required to be supported by any consideration (money or other assets paid by the transfer-on-death beneficiary to the owner). Further, in Ohio the owner is not required to deliver any paperwork to the transfer-on-death beneficiary in order for the designation to be effective.

The TOD designation passes no present ownership interest to the transfer-on-death beneficiary.

It is only effective upon death of the owner. Accordingly, the TOD’s beneficiary’s creditors cannot seize the vehicle while the owner is living. The owner can change beneficiaries at any time or revoke the beneficiary designation altogether without notifying the beneficiary. If the owner sells the vehicle, the TOD designation simply goes away.

Upon the owner’s passing, the TOD beneficiary simply needs to present the title bureau with a certified copy of the owner’s death certificate and the original title. The title bureau will then issue a new title in the TOD beneficiary’s name. If the TOD beneficiary does not survive the owner, then the vehicle, watercraft, or outboard motor must be included in the probate estate of the deceased owner.

There are a few restrictions on the TOD designation process. Current law provides that the vehicle’s title must be in the name of one owner only. So, joint owners of a vehicle cannot name a TOD beneficiary. There is a pending bill in the Ohio legislature, however, which will allow joint owners of vehicles to name TOD beneficiaries. The proposed bill also expands the use of TOD designations to recreational-type vehicles like all-purpose vehicles and off-highway motorcycles.

Also, a TOD designation does not limit the rights of any creditor of the owner of a motor vehicle.

A lien on the vehicle is not extinguished by the transfer to a TOD beneficiary.

Moreover, since a lienholder holds the original title (owners only receive a memorandum of title until the lien is paid in full), it is difficult for an owner who is financing their car to designate a beneficiary. The owner must seek cooperation from the lienholder to obtain the original title to establish the TOD designation. Depending on the policies of the lienholder, this may be a very difficult task.

If you are exploring ways to efficiently pass your vehicles upon death (and don’t forget that outboard motor), Laribee & Hertrick, LLP can help.

Need a lawyer or have legal questions? Contact Attorneys in Medina , Ohio from Laribee & Hertrick, LLP.

Partition Actions: Breaking Up Is Hard To Do.

Mon, 23 Nov 2020 19:45:10 GMT

Maude and her brother, Claude, bought a house together. They intended to use the property as a residential rental to supplement their income in retirement. Neither of them had a spouse or children. They each owned an undivided one-half (1/2) interest in the property.

As time passed, Maude became disenchanted with being a landlord. She and Claude began fighting over the maintenance costs. Maude offered to sell her half of the property to Claude, but he refused. She then demanded that they sell the property so she could invest her funds in a different way. Again, Claude refused. He did not want to give up the income stream. Maude was unable to find a buyer for her interest of the property. Nobody was willing to be a co-owner in the property with Claude. So, how does she remove herself from this investment? Although not ideal, a partition action in court may be the only answer.

Partition is the division of real property between two or more co-owners. It can be achieved through a voluntary agreement or by judicial proceedings.

Practically speaking, the vast majority of partitions occur through judicial proceedings since the relationship of the co-owners has soured to the point where the parties are unable to reach ?any agreement.

The primary purpose of a judicial partition is to divide the real property among the co-owners in shares equal to their ownership interests in the property . However, the division does not need to be perfectly equal. It is up to the court to approve the most equitable division possible based on the unique facts of each case. A court will consider unequal contributions toward the purchase price of the property or if the parties intended to share the property in different percentages.

The judicial partition begins with a petition filed by a party who has an interest in the real property. The petition must be filed in the court of common pleas in the county in which the property is located. All persons holding an interest in the property must be named as a party. The petitioner must demonstrate that he either has possession of the property or has an immediate right of possession to the property. He must also show that it is necessary to divide the property in order to protect his use and enjoyment of his portion.

If the court agrees that a partition is necessary, it appoints one or more disinterested persons known as commissioners to view the property and propose a proper and equitable division. They take into account the location of any buildings and the quality of the different parts of the property. Provided the court is satisfied with the division, it will issue a writ of partition directing the sheriff to divide the property into separate lots.

However, if the commissioners determine that the property cannot be partitioned without doing "manifest injury to the property,” then the property will not be divided. Manifest injury to the property means the division will cause a substantial loss of value to the whole. In this case, the commissioners will provide the court with a valuation of the property. One or more of the co-owners can elect to take the property at its appraised value. Otherwise, the court will order its sale by the county sheriff at public auction whereby the property cannot be sold for less than two-thirds of the appraised value.

Many partition actions result in a public auction since it is impractical, if not impossible, to divide buildings and residences.

Since public auction rarely results in a sale for the fair market value of property, a judicial dissolution should be the last option. If you are in dispute over property you co-own with others, it is important to consult with a trusted attorney to discuss the best available options. The attorneys from Medina, Ohio at Laribee & Hertrick, LLP can assist you.

This article is intended to provide general information about the law. It is not intended to give legal advice. Readers are urged to seek advice from an attorney regarding their specific issues and rights. To contact an attorney at Laribee & Hertrick, LLP, request more information about our legal services today.

Residential Rental Properties: The Duties of a Tenant

Mon, 23 Nov 2020 19:39:49 GMT

The Landlord-Tenant Act governs rental agreements for residential premises in Ohio . It also sets forth several requirements that Tenants must observe when they rent residential property.

Any tenant who is a party to a rental agreement in the State of Ohio shall do all of the following:

(1) Keep the premises safe and sanitary;

(2) Dispose of all rubbish, garbage, and other waste in a clean, safe, and sanitary manner;

(3) Keep all plumbing fixtures in the dwelling unit as clean as their condition permits;

(4) Use and operate all electrical and plumbing fixtures properly;

(5) Comply with the requirements imposed on tenants by all applicable state and local housing, health, and safety codes;

(6) Personally refrain and forbid any other person who is on the premises with his permission from intentionally or negligently destroying, defacing, damaging, or removing any fixture, appliance, or other parts of the premises;

(7) Maintain in good working order and condition any range, refrigerator, washer, dryer, dishwasher, or other appliances supplied by the landlord and required to be maintained by the tenant under the terms and conditions of a written rental agreement;

(8) Conduct himself and guests in a manner that will not disturb his neighbors' peaceful enjoyment of the premises;

(9) Personally refrain and forbid any other person who is on the premises with his permission from violating laws related to illegal drugs and controlled substances.

Furthermore, in Ohio a tenant must permit a landlord to enter the dwelling unit during reasonable times in order to inspect the premises, make ordinary, necessary, or agreed repairs, decorations, alterations, or improvements, deliver parcels that are too large for the tenant's mail facilities, supply necessary or agreed services, or show the dwelling unit to purchasers, mortgagees, tenants, workmen, or contractors.

If a tenant violates the Landlord Tenant Act, a landlord may recover any actual damages that result from the violation together with reasonable attorney fees. Furthermore, a landlord may terminate the rental agreement, initiate an action for the possession of the premises, or seek a court order to compel access to the premises.

The Landlord-Tenant Act in Ohio sets forth the bare minimum requirements for tenants. A lease agreement may set forth additional contractual duties and obligations provided they are not contrary to Ohio Landlord and tenant law . If you have questions regarding your lease agreement, it is important to consult with a trusted attorney to assist you. The attorneys at Laribee & Hertrick, LLP are here to help you.

Before you make important decisions related to a rental property, it is best to consult a trusted lawyer to discuss the unique facts related to real estate law and available options. The attorneys at Laribee & Hertrick. LLP in Medina, Ohio can assist you.

This article is intended to provide general information about the law. It is not intended to give legal advice. Readers are urged to seek advice from an attorney regarding their specific issues and rights. To contact an attorney at Laribee & Hertrick, LLP, request more information about our legal services now!

Residential Rental Properties: The Duties of a Landlord

Mon, 23 Nov 2020 19:36:45 GMT

Driving around town, it is readily apparent that more and more seniors are renting their homes. Property owners are marketing brand new apartments to those 55 years of age and older. It is important for tenants to know their rights.

In the State of Ohio, Landlords must follow a statute commonly known as the Landlord-Tenant Act. The Act generally governs rental agreements and leases of residential premises in Ohio and was created for the purpose of providing tenants with greater rights.

Any landlord who is a party to a rental agreement in Ohio shall do all of the following:

(1) Comply with the requirements of all applicable building, housing, health, and safety codes that materially affect health and safety. Landlords are presumed to know these codes. If code regulations change after the construction of the rental property, courts will generally look to see whether the property is a nuisance or is a risk to the tenant.

(2) Make all repairs and do whatever is reasonably necessary to keep the rental property in a fit and habitable condition. Provided that a landlord is aware of a defect in the rental property, courts have held that they are liable for injuries sustained as a direct result of the defect.

(3) Keep all common areas of the rental property in a safe and sanitary condition. Common areas include those portions used by several tenants to access their respective units including stairs, hallways, driveways, porches, and entrances.

(4) Maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating, and air conditioning fixtures and appliances supplied or required to be supplied by the landlord. The statute does not require the landlord to supply major household appliances like a refrigerator or stove. However, if landlord does supply these household appliances, then he must maintain them.

(5) When the landlord is a party to any rental agreements that cover four or more dwelling units in the same structure, he must provide and maintain appropriate receptacles for the removal of ashes, garbage, rubbish, and other waste and arrange for their removal.

(6) Supply running water, reasonable amounts of hot water, and reasonable heat at all times. This does not mean, however, that the landlord must pay for the water, natural gas, or electric consumed by the tenant. Many lease agreements legally require the tenant to pay for their own utilities. As long as the lease agreement is clear, courts will uphold a contractual agreement whereby the tenant pays their own utilities.

(7) Not abuse the right to enter into the rental property to inspect and make ordinary and necessary repairs. Except in the case of emergency, the landlord may enter the rental property only at reasonable times and must give the tenant reasonable notice. Twenty-four hours is presumed to be a reasonable notice. If a landlord engages in unreasonable or unlawful entries to the rental property, the tenant may terminate the rental agreement or recover actual damages resulting from the entry, obtain injunctive relief from a court to prevent the recurrence of the landlord’s conduct, and obtain a judgment for reasonable attorney's fees.

(8) Evict tenants if the landlord has reasonable cause to believe that the tenant, any person in the tenant's household, or any person in the rental property has engaged in criminal drug activity. This includes the use, sale, or possession of illegal drugs. The landlord is required to proceed with an eviction regardless of whether the tenant or other person has been charged with, has pleaded guilty to, or has been convicted of the drug offense.

The Landlord-Tenant Act in Ohio sets forth the bare minimum requirements for landlords. Of course, a lease agreement may set forth additional contractual duties and obligations provided they are not contrary to Ohio law.

If you have questions for a real estate attorney regarding your lease agreement, contact the law firm of Laribee & Hertrick, LLP to provide guidance and assist you.

Gifted Property vs. Inherited Property – Tax Issues to Consider

Mon, 23 Nov 2020 19:31:28 GMT

Edward owned forty acres of land near a large lake in Northeast Ohio. He bought the land nearly thirty years ago from a farmer who split up several hundreds of acres of farmland. Edward paid the farmer $20,000. Edward did not have immediate plans for the land, but he hoped its value would increase in the future.

Edward’s wish finally came true when a large real estate developer created a popular resort community around the lake complete with upscale retail stores, condominiums, and restaurants. Edward’s lot, located just outside the resort, was now worth approximately $300,000. Unfortunately, Edward had fallen ill and he did not have the energy to develop his land. He gifted the land to his nephew, Jerome. Edward passed away a few months later.

When Jerome went to sell the land to another developer for $300,000, his accountant explained that he would have to pay considerable capital gains tax on the sale since he received the property as a gift.

If Edward had considered the issues of capital gain, Jerome could have avoided the tax altogether.

In simple terms, “basis” is the amount an owner has invested in an asset. Generally, the basis is what the owner paid for it. Edward’s basis in the land was $20,000, the amount Edward paid thirty years ago. Capital gain or loss is the difference between the basis and the amount a seller receives upon sale of an asset. In other words, if you sell an asset that is worth more than you paid for it, you will have to pay taxes on the gain. The capital gain on Jerome’s sale is $280,000 which is the difference between the sale price ($300,000) and amount Edward paid for the lot ($20,000).

But Jerome could have avoided the capital gains tax if he received the land upon Edward’s death rather than through a gift before Edward died. When someone receives the gift of an asset before death, the person who receives the asset keeps the same basis in the asset held by the gifting party. This is called a “carryover basis.” However, when a beneficiary receives an asset from a decedent upon death, the beneficiary's basis in the asset is "stepped up" to the fair market value of the asset on the date of the death. The IRS permits a stepped-up basis in property acquired by bequest, devise, or inheritance, or from the decedent’s estate. If Jerome had inherited the land, his basis would have been $300,000. The sale to the developer for $300,000 would have produced no capital gain.

Sometimes, gifted property can result in a stepped-down basis if the value of the asset decreased prior to the date of gifting. In this case, it is best for the owner to sell the property before death and take full tax advantage of the loss himself. If the property is transferred upon the owner’s death, the beneficiaries will take the property at the stepped-down basis and they lose the benefit of the capital loss.

What is at stake? Capital gains taxes vary depending on whether they are considered short-term gains (assets held less than one year) or long-term gains (assets held for more than one year). Short-term gains are taxed as ordinary income based on the taxpayer’s tax bracket. Long term gains are taxed at a maximum 20% depending on the income level of the taxpayer.

Mistakes are often made when property is gifted to a family member prior to death. Plus, there are exceptions to the general principles discussed in this article. If you have questions regarding gifting your assets, the attorneys at Laribee Law, LLP can assist you.

Michael Laribee is a partner in the Medina law firm Laribee Law, LLP. This article is intended to provide general information about the estate planning and asset protection law. It is not intended to give legal advice. Readers are urged to seek advice from an attorney regarding their specific issues and rights.

Need a lawyer or have legal questions? Contact Attorneys in Medina from Laribee Law, LLP.

Do you want answers to questions about wills or estate law in ohio?

• Michael L. Laribee - Attorney at Law

Gift Tax: Who Pays the Bill?

duda_admin@thryv.com (admin admin) — Mon, 23 Nov 2020 19:28:06 GMT

We have discussed the elements necessary to make a valid gift in other articles. But the analysis should not end there. There are many tax questions to consider when gifting.

Is the gift taxable? Who pays the tax? Are all gifts reportable? Is there a limit on gifts in a single calendar year? How much is the gift tax?

For tax purposes, a gift includes a transfer of an asset to another, either directly or indirectly, when nothing is received in return. Something exchanged for value, either money or services, is not a gift.

In almost all circumstances, the person making the gift (the donor) is responsible for paying the gift tax. There are times when the person receiving the gift (the donee) makes arrangements to pay the tax. But this is very rare.

Not all gifts are taxable. Generally, the following are not taxable gifts:

Gifts that do not exceed the annual exclusion for the calendar year;
Tuition or medical expenses you pay for someone else;
Gifts to a spouse; and
Gifts to political organizations.

People often believe they cannot make a gift which exceeds the annual exclusion amount. That is simply not true. Rather, the IRS considers a gift taxable if it exceeds the annual exclusion. The annual exclusion amount has steadily increased in the past few years. For 2018, the annual exclusion is $15,000 and it applies to each donee. For example, a father can give $15,000 to each of his three daughters in the same calendar year. None of the gifts are taxable. If a spouse joins in a gift, the couple can give $30,000 to each donee in a calendar year.

So, what if a donor makes a gift in excess of the annual exclusion? They are required to file a gift tax return with the I.R.S. The return must be filed by April 15th the year after the gift was made. Failure to file a gift tax return may result in penalties unless there was reasonable cause for delay.

When are gift taxes paid? Maybe never. Even if a donor files a gift tax return, they may not have to pay tax on that gift. Rather, the donor can apply the amount of the gift toward their lifetime exclusion from the federal estate tax. The “basic exclusion” (also known as the “unified credit”) represents both the lifetime gift tax exemption and the estate tax exclusion. This defers the tax. Any portion used to avoid the gift tax reduces the amount that will be exempt from estate tax when the donor dies. The new tax law passed for 2018 doubles the amounts individuals may gift (now approximately $11.2 million) over their lifetime without having to pay gift or estate taxes. Since the basic exclusion has increased so much, the vast majority of individuals will escape paying these taxes.

But there is reason to be cautious. The basic exclusion is scheduled to revert back to $5 million on December 31, 2025.

Or, Congress could lower it in the meantime through new tax bills. Since the gift tax rate goes as high as 40%, it is important to consult with a trusted probate attorney before you engage in a gifting plan. Laribee & Hertrick, LLP stands ready to assist you.

This article is intended to provide general information about the law. It is not intended to give legal advice. Readers are urged to seek advice from an attorney regarding their specific issues and rights. Contact an attorney at Laribee & Hertrick, LLP, request more information about our legal services today.

Related law articles:

Michael L. Laribee - Attorney at Law

Gifting Personal Property: When a Gift is Not a Gift.

Mon, 23 Nov 2020 19:24:42 GMT

Bertha owned an antique melodeon pump organ. It was produced in 1850. After restoration, it was worth more than $18,000. Bertha and her niece, Harmony, spent countless hours playing the melodeon together in the parlor of Bertha’s home. Harmony was earning a degree in music therapy and appreciated the unique qualities of the old instrument.

Last Will and TestamentOne day, Bertha said that she was giving the melodeon to Harmony. “It’s all yours,” Bertha said smiling. Harmony was thrilled. But, Harmony had no room for the melodeon in her small dorm room on campus. So, the melodeon remained in Bertha’s parlor. After college, Harmony traveled throughout Europe teaching music theory. The melodeon stayed at Bertha’s house until she passed away several years later.

When Harmony returned from Europe for Bertha’s funeral, she was surprised to learn that Bertha’s daughter, Aria, moved the melodeon to her house. Harmony argued that Bertha gave her the melodeon several years ago. She recounted the statement Bertha made while they sat in Bertha’s parlor.

Aria, however, said she inherited the instrument from her mother. She explained that Bertha’s last will and testament listed her as the sole beneficiary. Harmony was not named as a beneficiary and the melodeon was not listed in the will.

Does Harmony have a successful claim of ownership to the melodeon? It is not likely.

To be valid, a gift must meet certain criteria. First, a gift requires an intention on the part of the donor (the person making the gift) to part with the property. The donor must also have the mental capacity to make the gift.

Second, the donor must relinquish all control over the property by delivering it to the donee (the person receiving the gift). Simply, the gift is not complete if the donor keeps the item or requires return of the item at a later date. The mere announcement of giving property to another in the future does not have the effect of transferring title. The gift must be immediate, unconditional, and irrevocable. There can be no strings attached.

Third, the donee must accept the property to complete the gifting process.

In our example, the gift to Harmony would have been complete if she took physical possession of the melodium at the time Bertha said it was hers. Or, Bertha could have made a specific bequest to Harmony in a properly executed testamentary instrument, like a will or a trust agreement.

The passing of personal property and effects can be a difficult part of estate administrations. Often, beneficiaries have strong emotional ties to family heirlooms. These assets are not easy to divide equally among several people. They normally have no title or registration on which to designate a beneficiary. To avoid confusion and disagreement among family members, an owner may consider gifting the asset prior to death. But the gift must be completed properly. It is important to consult with a trusted probate attorney to make sure your assets are distributed to beneficiaries as intended.

Michael Laribee is a partner in the Medina law firm Laribee & Hertrick, LLP. This article is intended to provide general information about the law. It is not intended to give legal advice. Readers are urged to seek advice from an attorney regarding their specific issues and rights.

Need a lawyer or have legal questions? Contact Attorneys in Medina from Laribee & Hertrick, LLP.

Related law articles:

Gift Tax: Who Pays the Bill?

Gifted Property vs. Inherited Property – Tax Issues to Consider

Home Solicitation Sales: Are You Stuck in a Contract?

Mon, 23 Nov 2020 19:22:03 GMT

On a sunny afternoon, your doorbell announces the arrival of a visitor. You find a charming young man on your front step; he greets you with a bright smile. In his hands, he holds several pamphlets; he tells you that he is visiting your neighborhood with an exciting opportunity to upgrade the windows of your home.

You invite him inside to review the pamphlets about home window replacement and repare. The salesman then examines your windows and tells you that many are failing and, if not replaced, your home will have significant water damage. After listening to his polished presentation, you decide to purchase some new windows. You sign the purchase agreement and agree to pay $15,000.00 for the entire job. The salesman thanks you graciously and indicates that installation will begin in two weeks.

Later that day, you happen to see an advertisement for the same type of windows sold through a local retail store for a much cheaper price. Further, the retail store offers free installation.

Are you stuck in your contract with the salesman?

What if you simply change your mind after the salesman leaves?

The Home Solicitation Sales Act in Ohio provides protection to consumers in just such an event.

The Act covers door-to-door sales of consumer goods or services in which the seller engages in a personal solicitation of the sale at the residence of the buyer.

It even includes solicitations made in response to an invitation by the owner. The purpose of the Act is to protect consumers against pressure to make an immediate purchase when a salesperson appears at their home or where the sales pitch is given at a non-business location.

Consumer goods or services are defined as those purchased, leased, or rented primarily for personal, family, or household purposes, including courses of instruction or training. Ohio courts have overwhelmingly ruled that home improvement sales are covered.

There are a number of requirements which regulate the terms and manner of entering into a home solicitation sales contract. The agreement must be in writing (in the same language as the presentation) and must contain the seller's name and address, the buyer’s signature, and the date. The seller must leave the buyer a copy of the signed written agreement.

Arguably, the most important protection of the Act is the buyer’s right to cancel a home solicitation sale until midnight of the third business day after signing a contract. The notice of the right to cancel must be included in writing on the contract, in bold-face type of the minimum size of ten points, located near the buyer’s signature. The salesperson must also orally explain the right to cancel to the buyer.

The contract must also include a form, in duplicate, captioned “notice of cancellation,” which the buyer can easily detach and use if necessary. Cancellation is complete when the buyer gives written notice of cancellation to the seller at the seller's address, e-mail address, or fax number stated in the contract. The seller may not begin work under the contract during the three-day period.

After canceling a home solicitation sale, a buyer must make available to the seller any goods provided during the sale. The goods must not be damaged or subjected to unreasonable wear or use. The buyer is not obligated to make the goods available at any place other than buyer’s home. If the seller fails to pick them up within twenty days of the cancellation, the goods become the property of the buyer without obligation to pay for them.

Contrary to common opinion, the Home Solicitation Sales Act does not cover all contracts. The Act expressly excludes sales in which the total purchase price is less than twenty-five dollars. Also, it does not cover sales conducted entirely by mail or by telephone if initiated by the buyer without any other contact prior to the delivery of goods or performance of the service. Likewise, the Act does not apply to sales where the final agreement is made after a visit by the buyer to a retail business at a fixed permanent location where the goods are exhibited for sale on a continuing basis.

The following goods or services are specifically excluded from the Act’s protection:

Sales or rentals of real property by a real estate broker or salesperson
The sale of securities or commodities by a securities dealer or broker-dealer
The sale of insurance by a licensed agent
Goods sold or services provided by licensed automobile dealers and salespersons
The sale of property at an auction by a licensed auctioneer

The Home Solicitation Sales Act can be very strict in its application and it provides a narrow and time-limited exception to the basic rule that parties are bound to the terms of the agreements they sign. It is important that you not delay in consulting with an attorney to see whether your home solicitation sale is covered. Failure to properly and timely cancel a home solicitation sale would result in a binding contract - even if you no longer want the windows.

Have legal questions ? The experienced attorneys at Laribee Law, LLP are ready to assist you.

Who is a Suitable Guardian?

Mon, 23 Nov 2020 19:17:20 GMT

I have written previously about the basics of guardianships in Ohio. The purpose of a guardianship is to protect the rights of a person who is unable to manage his or her own affairs due to mental illness, physical illness, intellectual disability, or chronic substance abuse. That person is known as a ward. Guardians serve to protect the ward’s health and finances.

But who may serve as a guardian? The Ohio Revised Code defines a guardian as “any person, association, or corporation appointed by the probate court to have the care and management of the person, the estate, or both of an incompetent or minor.” By definition, guardians do not need to be people. Agencies, like those that contract with the Department of Developmental Disabilities often act in the role as guardian. As a general rule, a guardian of a ward’s assets must be a resident of the state of Ohio. A guardian of a ward’s health may live outside of Ohio, but probate courts often prefer guardians who live in the same county as the ward.

The guardianship process begins with an application by a party seeking to be a guardian.

The applicant must list their relationship with the proposed ward, the length of time the applicant has known the ward, and a history of who has provided care for the ward and has assisted with the ward’s financial affairs. The applicant must also disclose if they have been charged or convicted of a crime involving theft, physical violence, or sexual, alcohol, or substance abuse

The probate court must conduct a hearing to consider the application. Provided that the court finds a guardianship is necessary, it must then decide whether appointing the applicant is in the best interest of the ward. The probate court has broad discretion in its decision.

Often times, more than one applicant applies to be guardian over a ward and the probate court must choose the more suitable candidate. The court is not required to appoint the first applicant to file; it must appoint the applicant who will fulfill the fiduciary duties of the guardian best.

To avoid this conflict, a person may nominate a preferred guardian long before a guardianship is even necessary. This can be done in a last will and testament or in a durable power of attorney. The person can even give power to the nominated guardian to name a successor guardian for consideration by a court. To be effective, the writing must be signed by the person making the nomination in the presence of two witnesses or acknowledged by the person making the nomination before a notary public. The writing may be filed with the probate court for safekeeping, although it should be replaced with an updated document if someone new is nominated.

If the nomination is done correctly, the probate court must then give preference to the nominated person over another applicant provided the court finds that the person nominated is competent, suitable, and willing to accept the appointment.

It is important to understand, however, that the probate court is the superior guardian of a ward at all times. The probate court delegates powers to a guardian who becomes the probate court’s agent. The probate court reviews all actions of the guardian and may remove the guardian if he fails to fulfill his obligations to the ward or follow orders of the court.

Have legal questions related to probate law ? It is important to consult with a trusted probate attorney before executing any documents which nominate a future guardian. Failure to execute a nomination properly may result in the appointment of a guardian who was not the ward’s preferred choice. Laribee Law, LLP can guide you through this process.

Michael Laribee is a partner in the Medina law firm of Laribee Law, LLP. This article is intended to provide general information about family law . It is not intended to give legal advice. Readers are urged to seek advice from an attorney regarding their specific issues and rights.

To contact an attorney at Laribee Law, LLP, request more information about our legal services now!

Life Estates: The Basics

Mon, 23 Nov 2020 19:10:52 GMT

What is a Life Estate?

A life estate is a type of interest in real property. It is most often used when an owner wants to transfer property to a third party, but retain exclusive possession of the property until their death.

A life estate actually creates two separate legal interests: a life estate interest and the remainder interest.

The party who holds the life estate interest is called the “life tenant.” The life tenant has the exclusive right to possess and control the property during his or her lifetime. The person who holds the remainder interest is called the “ remainderman .”

The remainderman automatically acquires the full title and possession of the property when the life tenant dies. However, the remainderman does not have the right to possess, use, or control the property until the life tenant’s death. Likewise, creditors of the remainderman cannot reach the property or interfere with the life tenant’s use.

The life tenant has the duty to pay all ordinary real estate taxes and insurance for the property during her life tenancy. He or she must also maintain the property and make all ordinary repairs. However, the heirs of a life tenant have no right to recover from the remainderman the value of any improvements made during the life estate. Further, the life tenant cannot destroy or waste the property or do anything that will diminish the property’s value.

Most life estates are created by filing a deed. The deed may simply name a life tenant and the remainderman who takes title to the property upon the death of the life tenant. Or, a property owner may grant the remainder interest to another person while reserving a life estate for themselves. Life estates can also be established in a last will and testament. In this case, the property is bequeathed to a beneficiary subject to the life use by another person.

There are several advantages of life estates , below are a few examples:

They are simple and inexpensive to create.
Life tenants can also lease the property to others if desired.
Owners merely record a deed with the county recorder’s office.
Rents received during the existence of a life estate belong to a life tenant.
Life estates also avoid probate court administration if they are established before the death of the owner.
There is also favorable tax treatment upon the death of a life tenant as the remainderman enjoys a stepped-up tax basis for capital gains purposes.

However, there are some disadvantages to life estates that are noted below:

A life estate is irrevocable unless the life tenant and remainderman agree to transfer the property back to the owner.
Litigation between the life tenant and the remainderman is possible if the life tenant wastes or damages the property.
A life estate may also affect the ability of the life tenant to apply for Medicaid benefits as it may be considered an asset with monetary value. This may frustrate estate plans designed to protect assets against long-term skilled nursing costs.

It is important to consult with a trusted real estate attorney before granting a life estate in your property.The experienced attornies at Laribee & Hertrick, LLP in Medina County Ohio can review your unique facts and circumstances and steer you away from possible negative consequences.

This article is intended to provide general information about the law. It is not intended to give legal advice. Readers are urged to seek advice from an attorney regarding their specific issues and rights. To contact an attorney at Laribee & Hertrick, LLP, request more information about our legal services today.

The “In Terrorem Clause” - Striking Fear Into Hearts of Beneficiaries

duda_admin@thryv.com (admin admin) — Mon, 23 Nov 2020 19:08:24 GMT

Joseph had two daughters. To put it mildly, his daughters did not get along. In reality, they couldn’t stand each other. One daughter, Kathy, lived close to Joseph and helped him with his errands and medical appointments. The other daughter, Barb, lived far away and seldom visited Joseph.

When drafting his last will and testament, Joseph named both daughters as beneficiaries . However, he structured his will to grant 60% of his assets to Kathy and 40% to Barb. He thought this was fair since Kathy helped him so much day-to-day.

But, Joseph knew Barb would be furious. Anticipating a fight between his daughters, he included the following language in his will: "If any person shall at any time commence proceedings in any court to have this will set aside or declared invalid or to contest any part or all of the provisions included in this will, they shall forfeit any interest in my estate."

Is this provision legal in State of Ohio? If Barb challenges her father’s will, does she risk losing her inheritance entirely? The answer to both questions is yes.

This provision is known as an “in terrorem clause.” It originated centuries ago in England and continues now in many states in this country, including Ohio. The term means “in fear” in Latin and is used to prevent a bitter dispute over a will. It is also known as a “no contest clause.” The Ohio Supreme Court addressed the issue as far back as 1869. It stated that a condition in a will which excludes any heir who “goes to law to break (the) will” is reasonable and serves the good policy of preventing litigation.

In fact, the holding in 1869 was so clear and strict, that very few cases have challenged the doctrine since. Ohio courts have long held that a person has an unquestioned right to attach any condition to his gift which does not otherwise violate law or public policy. The beneficiary may choose to take the gift with the conditions attached, or reject it.

In recent years, there has been a push to establish good faith exceptions to these clauses which would allow a beneficiary to challenge a will in good faith if there are actual grounds to do so. For instance, a beneficiary could challenge a will on the basis of the testator’s incompetency without risking loss of their inheritance. However, to date, that effort in Ohio has not been successful. Courts have decided that exceptions, even if made in good faith, would destroy the rule itself. The first duty of a court is to guard the intention of the testator.

However, courts will not forfeit a beneficiaries’ inheritance if they merely seek court interpretation of a will or object to actions taken by the executor. To invoke the in terrorem clause, they must challenge the legitimacy of a will.

This article is intended to provide general information about the law. It is not intended to give legal advice. Readers are urged to seek advice from an attorney regarding their specific issues and rights. To contact an attorney at Laribee & Hertrick, LLP, request more information about our legal services today.

Power of Attorney - When Does It Terminate?

Mon, 23 Nov 2020 19:06:53 GMT

What is a power of attorney?

A financial power of attorney is an instrument that allows one person to act for another in a variety of financial matters. The person making the document is called the principal. The person designated to act for the principal is called the agent or attorney-in-fact. It is a relationship of special confidence and trust. Since a power of attorney can grant significant power, it is important that an agent understands when their authority ends. Sometimes the actual document states when that happens. Other times it is by the occurrence of a particular event or event by operation of law.

When does a power of attorney terminate?

A power of attorney terminates when any of the following events occur:

(1) The principal dies . This is arguably the most common event of termination. It is also the most misunderstood as agents often transfer funds or pay bills of the deceased principal after death. Here in the state of Ohio, courts regularly hear cases filed by a principal’s heirs seeking to recover funds that disappeared after the principal’s death through the use of a power of attorney. There is a very limited exception to the general rule. If the power is specifically coupled with an interest, it may survive death of the principal. For example, courts have held that a managing partner can sign a certificate of registration of a partnership on behalf of a deceased partner after her death. Also, if an agent does not have actual notice of the principal’s death, then actions taken in good faith on behalf of the principal after death are legal and binding.

(2) The principal becomes incapacitated, if the power of attorney is not durable . A power of attorney is considered durable if it states that is not affected by the disability of the principal. Without this specific language, the power of attorney ends when the principal is not able to make decisions due to mental or physical incapacities. If, however, the agent does not have actual notice of the principal’s incapacity, then actions taken in good faith on behalf of the principal are legal and binding.

(3) The principal revokes the power of attorney . To accomplish this, the principal should serve his agent with a written notice that the agent’s powers are terminated. Also, if the power of attorney was recorded with the county recorder’s office, then notice of the revocation must be filed with the recorder as well. The execution of a new power of attorney does not revoke a prior power of attorney automatically unless the new document specifically provides for this. If a guardian is appointed for the principal, the guardian has the ability to revoke all or any part of the power and authority of the agent.

(4) The power of attorney provides that it terminates . It is rare, but sometimes a power of attorney actually sets an expiration date.

(5) The purpose of the power of attorney is accomplished . This occurs when the power of attorney is used for a specific transaction. For example, a principal may name an agent to sign closing documents for one real estate transaction. Once the transaction is complete, the powers expire.

(6) If the agent dies, becomes incapacitated, or resigns , and the power of attorney does not provide for a subsequent agent to act under the power of attorney.

(7) If the agent is married to the principal and a divorce or separation action is filed with a court , unless the power of attorney states that such an action will not terminate the authority.

"It is important for an agent to understand when a power of attorney expires so that he or she does not take action which is no longer authorized. Otherwise, the agent could be responsible personally for the performance of any obligations undertaken on behalf of the principal or liable to the principal for damages."

If you have questions regarding laws in the state of Ohio related to the power of attorney or your authority to act as an agent, the lawyers at Laribee Law, LLP in Medina County, Ohio can assist you.

Protecting Inheritance from Divorce

Mon, 23 Nov 2020 19:02:31 GMT

The main focus of most estate plans is to make sure beneficiaries receive the full benefit of their intended inheritance.

A beneficiary’s divorce may be an obstacle to this goal. If a beneficiary divorces, their spouse may claim an interest in assets inherited before or after a marriage. Most people, if given the choice, would not give half of their estate to their child’s ex-spouse. With proper planning, however, this result can be avoided.

First, it is important to understand the difference between marital and separate property in the event of divorce. Ohio law defines marital property as real and personal property currently owned by either or both of the spouses as well as property acquired by either spouse during the marriage.

Separate property includes real and personal property inherited by one spouse by bequest, devise, or descent during the course of the marriage.

On the face of these definitions, it seems fairly simple. One spouse cannot claim the property inherited by the other spouse. However, life is not that simple. Money is fungible. It can be difficult to trace. Most married couples commingle assets and use joint accounts to pay expenses and purchase property. It is very easy to lose the separate identity of inherited assets. Ohio law provides that inherited assets become marital property if they are commingled with other marital property and become untraceable. Once the inherited property becomes untraceable, it is fair game in a divorce.

Furthermore, Ohio law provides that all income and appreciation on separate property, due to the labor, monetary, or in-kind contribution of either spouse during the marriage , is marital property. In other words, when a spouse works to increase the value of separate property, she may claim part of it. Only passive income and appreciation acquired from separate property remains separate. An example of passive appreciation is the increase of value due to market forces, geographic location, and inflation, which are unrelated to the other spouse’s efforts.

In the event of a divorce, the spouse seeking to have a commingled property deemed separate property has the burden of proof to trace the asset. Oral testimony without a proper paper trail may not satisfy the burden. The domestic relations court ultimately will decide what is separate property.

There are a few ways to protect an inheritance from divorce:

First, a spouse should keep separate assets truly separate and keep thorough records. They should not deposit inherited funds into joint bank accounts. They should not use the inheritance to improve marital property. They should not use the proceeds from the sale of inherited assets to purchase marital property. Inherited real property should not be titled jointly with a spouse.
Second, an estate plan can include a revocable trust which would hold the assets for the beneficiary. Assuming a trust is properly drafted, the beneficiary’s inheritance should be protected from claims of a divorcing spouse. The trade-off, however, is that a trustee will control the funds. The beneficiary will not have unrestricted use of the inherited assets.
Third, a beneficiary can use a prenuptial agreement as a form of asset protection. A prenuptial agreement permits a beneficiary and his or her spouse to agree upon the characterization of assets owned at the time of marriage, and those assets earned subsequent to marriage.

Before you make important decisions about estate planing, it is best to consult a trusted lawyer to discuss the unique facts and available options. The attorneys at Laribee & Hertrick. LLP in Medina, Ohio can assist you.

This article is intended to provide general information about the law. It is not intended to give legal advice. Readers are urged to seek advice from an attorney regarding their specific issues and rights. To contact an attorney at Laribee & Hertrick, LLP, request more information about our legal services today.

Driver's License Suspension for a Medical Condition

Mon, 23 Nov 2020 18:57:31 GMT

One of Bernard’s favorite activities was driving his 1969 Corvette Stingray roadster convertible. He loved to feel the wind blow through his hair as he drove down scenic country roads. One Sunday afternoon, Bernard felt dizzy while he was driving. He suddenly lost consciousness and hit several mailboxes before his Corvette came to rest in a ditch. Thankfully, Bernard was not injured except for a few minor bumps and bruises. A few weeks later, Bernard lost control of his Corvette in a parking lot and hit several shopping carts.

At the urging of his concerned wife, Bernard consulted with this family doctor. At the appointment, Bernard admitted that he had experienced dizzy spells for several months. His doctor told him that it was not safe for him to drive until they determined the cause of his condition. Bernard immediately objected. There was no way he would give up driving his beloved Corvette. He drove away angrily from the doctor’s office.

Several days later, Bernard received a letter from the Ohio Bureau of Motor Vehicles (BMV) requiring him to submit to a physical examination or risk a license suspension. Bernard was surprised to learn that his doctor notified the BMV that he could not safely operate a vehicle due to a medical condition.

We often take the right to drive for granted. It is such a basic part of our everyday lives. But, driving on Ohio’s roadways is a privilege and not a constitutional right. The state may suspend and revoke licenses for a myriad of reasons. One reason is a driver’s medical condition.

The BMV can deny a license to any person who is afflicted with a physical or mental disability or disease that prevents him from exercising reasonable and ordinary control over a motor vehicle. When there is good cause to believe that a driver is incompetent or otherwise not qualified to be licensed, the BMV must send a written notice to the driver requiring him to submit to a driver's license examination, a physical examination, or both. If the driver fails to submit to the examinations, his license will be suspended.

This process is often initiated by a police officer following an accident. But, it is often initiated by the driver’s doctor by submitting a report to the BMV stating that, in her professional opinion, the driver may be incompetent or otherwise not qualified to operate a motor vehicle safely due to medical reasons. Any report submitted to the BMV is confidential and does not become a public record.

The physical examination may be conducted by a physician, physician assistant, a clinical nurse specialist, a certified nurse practitioner, or a certified nurse-midwife. Depending upon the results of the examination, the BMV may suspend the driver’s license, may permit the driver to retain the license, or may issue certain restrictions against the license. For example, the BMV may issue a six month restricted license to driver who proves his medical condition is dormant or under effective medical control.

If the license is suspended or restricted for a medical condition in Ohio, the driver may request an administrative hearing through the BMV. He may be represented by legal counsel and present evidence at the hearing. The BMV hearing examiner is required to review the suspension in an impartial manner and make an independent ruling based on the evidence presented. If the suspension is upheld, the driver has the right to appeal the matter further in the local common pleas court. The judge will then determine whether the decision of the BMV was based upon reliable, substantial and probative evidence.

The loss of driving privileges is a scary thought. However, a driver with a medical condition may be putting themselves or others at risk by getting behind the wheel. The Ohio BMV must carefully balance a driver’s desire to drive against the safety of the public. If you or a loved-one is faced with a medical suspension, it is best to consult a trusted lawyer to discuss the unique facts and available options. The attorneys at Laribee & Hertrick. LLP can assist you.

Have Questions About Having Your Driver's License Suspension for a Medical Condition?

Executor of an estate: "It's an honor just to be nominated."

Mon, 23 Nov 2020 18:54:10 GMT

An executor is a person appointed to carry out the directions in a last will and testament. Their primary duty is to distribute estate assets in a legal and orderly fashion.

There is a common misconception that an executor possesses the power to handle a decedent’s assets immediately following their death merely because the executor is nominated in the decedent’s will. With this misconception, they may improperly dispose of the decedent’s personal property, attempt to transfer funds in bank accounts, or conceal information from beneficiaries.

Ohio law is very clear that an executor nominated in a will has no legal power until he obtains letters of appointment from a probate court. Any act or transaction by a nominated executor prior to the issuance of letters of appointment is simply invalid. Until formally appointed, the person is merely nominated by the testator (the person making the will) subject to the probate court’s approval.

Before issuing letters of appointment, the probate court must find that a nominated executor is a “suitable” person. He must be reasonably disinterested and in a position to fulfill the obligations of a fiduciary. That does not mean that the nominee can’t also be a beneficiary of the estate. Indeed, most times an executor is also a named beneficiary of an estate. The probate court will simply determine whether there is any hostility and distrust among the parties and whether there are any extraordinary conflicts, either personal or financial, which may pose a problem. Courts will give great weight to the testator’s choice of executor and any reasonable doubt must be resolved in favor of the nominated executor. The evidence to disqualify a nominated executor must be relatively strong.

Before being appointed, the executor must sign a written acceptance of his duties, acknowledging that he is subject to removal for failure to perform those duties of an executor and that he is subject to possible penalties for loss or theft of the property he holds on behalf of the estate. The executor must also post a suitable bond unless the decedents will dispense with that requirement.

If no executor is named in a will or if the executor named in a will is no longer living, the probate court will issue letters of appointment to a suitable person named as a beneficiary in the will. If no named beneficiaries are living, the probate court has the power to appoint some other suitable person in its discretion.

While it may “be an honor just to be nominated,” it bestows no legal power on an executor until the probate court acts on the nomination.

The mishandling of a decedent’s assets before appointment will likely result in civil liability to the creditors or beneficiaries of the estate. The whole process of the formal appointment of an executor makes sure that the estate assets are administered correctly and that the rights of beneficiaries are protected through court oversight. It is important to consult with a trusted probate attorney before asserting any control over a decedents assets. Laribee & Hertrick, LLP can provide that service.

This article is intended to provide general information about the law. It is not intended to give legal advice. Readers are urged to seek advice from an attorney regarding their specific issues and rights. To contact an attorney at Laribee & Hertrick, LLP, request more information about our legal services today.

Summary Release From Administration

Mon, 23 Nov 2020 18:50:44 GMT

Joanie was very close with her Uncle Felix. Uncle Felix never married and had no children of his own. He treated Joanie as a daughter. Uncle Felix took care to list Joanie as the transfer-on-death beneficiary on his savings accounts. Likewise, he recorded a transfer on death affidavit with the local recorder so his house would transfer to Joanie upon his death. He understood these assets would be treated as non-probate assets upon his death and therefore could transfer to Joanie easily without having to go through a probate court administration.

When Uncle Felix passed away, Joanie paid for his funeral and burial expenses totaling $10,000. Joanie used the funds she received from Uncle Felix’s bank accounts. However, when Joanie was working with the bank clerk, she discovered that Uncle Felix had $1,500 in his checking account. Uncle Felix failed to list a beneficiary on the checking account. The bank clerk explained that the bank could not release the funds without the proper papers from the local probate court. Joanie initially thought a full probate estate administration would be necessary. She was pleasantly surprised when her family’s attorney explained there was a simple way of releasing the funds. It is called a Summary Release from Administration.

There is a statute in the Ohio Revised Code (2113.031) Summary release from administration which expedites small estates when certain condition are met:

the applicant has paid or is obligated in writing to pay the decedent's funeral and burial expenses;
the decedent's estate does not exceed the lesser of five thousand dollars or the amount of the decedent's funeral and burial expenses;
there are no pending estate proceedings for the decedent's estate; and,
there are no known assets of the decedent's estate other than the assets described in the application (which does not include assets released directly through transfer on death designations on accounts or titles).

Funeral and burial expenses include those charges listed on the bill of a funeral director or which are approved by the probate court. The statute also provides the same procedure for the decedent’s surviving spouse except the amount of assets which may be released is currently $45,000. There is no requirement that the applicant is listed in decedent’s last will and testament. No executor will be appointed. There is no requirement to notify the decedent’s next of kin. There is no obligation to pay any other creditors of the estate.

A Summary Release from Administration is not only used to release funds in bank accounts. It can also release motor vehicles, trailers, stocks, bonds, or even real property provided the value does not exceed the maximum amount under the statute. The applicant must provide the probate court with a sworn statement listing the known probate assets of the decedent along with a paid receipt for the funeral expenses or a contract showing the obligation of the application to pay those expenses.

If the probate court finds that all the requirements are satisfied, it will issue an order that directs the delivery of the decedent's personal property to the applicant together with the issuance of title.

• After the requirements are met, it relieves the decedent's estate from any further administration.

So, in Joanie’s case, she will be able to claim the $1,500 in Uncle Felix’s checking account provided there are no other assets which have to go through probate court.

"If you are in need of a Summary Release from Administration in Ohio, we would be happy to help. Please feel free to request more information about our legal services and find out how to get started with setting up an appointment for our one of our lawyers sit down with you to review the specifics of your case."

Michael Laribee is a partner in the Medina, Ohio law firm of Laribee Law, LLP. This article is intended to provide general information about the law. It is not intended to give legal advice. Readers are urged to seek advice from an attorney regarding their specific issues and rights. To contact an attorney at Laribee Law, LLP, request more information about our legal services today.

Survivorship Deeds

Mon, 23 Nov 2020 18:46:53 GMT

Claude and Maude had been married for 25 years. After their children moved away, they decided to downsize into a smaller house. They purchased a small ranch which would be perfect for them in their golden years. When the transaction closed, they received a deed which simply stated they took title as husband and wife. They never examined their deed closely. Both Claude and Maude assumed that upon the death of one of them, the entire interest in the house would belong to the surviving spouse.

Many years later, Claude passed away. When Maude met with an attorney to discuss Claude's estate, she was surprised to learn that she was not the owner of the entire property automatically. She had to open Claude's estate at probate court to administer Claude's interest in the house. Luckily, Maude was the sole beneficiary under Claude's last will and testament so she received his interest in the house. With approval of the probate court, the land records were updated at the county recorder's office to reflect that Maude owned the entire interest in the property. However, Maude could have avoided the time and expense of a probate estate if their deed simply included language of survivorship.

In Ohio, a survivorship deed creates a “joint tenancy” between two or more owners. Owners are called survivorship tenants. Upon the death of one of the survivorship tenants, his or her interest in the property will pass to the surviving tenants automatically.

This bypasses the need for probate . The surviving owner will inherit the interest in the property regardless of any provisions in the decedent’s will. Married couples often use this type of deed, but marriage is not a requirement. Any number of people can hold title under a survivorship deed.

Each survivorship tenant holds an equal share of the title during their joint lives and each has an equal right to occupancy and use of the property. Likewise, all share in any profits of the property. Each of the survivorship tenants must pay their proportionate share of the costs related to the ownership and use of the real property. Upon the death of any of them, the title of the decedent vests proportionately in the surviving owners. The entire ownership interest will ultimately pass to the last tenant living. This is done through recording an affidavit and a certified death certificate with the county recorder’s office. The affidavit must recite the names of the other survivorship tenant or tenants, the address of the other survivorship tenant or tenants, the date of death of the decedent.

Ohio law provides that a deed must show a clear intention to create a survivorship tenancy. The standard language in a survivorship deed transfers property to the owners “for their joint lives, remainder to the survivor of them.” It is important for owners to review their deeds to see if this language is included.

There are certain risks owning property jointly. Creditors of one owner may affect the property. If both joint tenants die at the same time and the order of death cannot be determined, the share of each deceased joint tenant then passes according to his or her written will. Also, the survivorship deed may be contrary to the owner’s other estate plans. It is important to review your situation with a trusted attorney before acquiring real property. The attorneys at Laribee & Hertrick, LLP can provide guidance and assist you so that the title may be established in the best way.

This article is intended to provide general information about the law. It is not intended to give legal advice. Readers are urged to seek advice from an attorney regarding their specific issues and rights. Contact an attorney at Laribee & Hertrick, LLP, request more information about our legal services today.

Insolvent Estates - Who gets what?

Mon, 23 Nov 2020 18:44:09 GMT

The laws governing the administration of estates in the State of Ohio are designed for the orderly collection of probate assets, payment of debts, and distribution to beneficiaries according to a decedent’s will.

These are a few common questions related to insolvent estates:

What happens if an estate has more debts than assets?
Do certain creditors have priority over others?
Who gets paid and who doesn’t?
What will the beneficiaries receive?
Will the executor get paid for his services?

An insolvent estate is one whose assets are insufficient to pay its debts, taxes, and administrative expenses. If an executor determines that an estate is insolvent, he must follow a very precise order when paying debts.

The Ohio Revised Code 2117.25 establishes the following ten classes of claims and priorities which must be paid in the order listed:

1) Costs and expenses of administration. The expenses in the first category receive top priority and include all probate court fees, appraisal fees, and any court costs related to litigation in which the estate is involved. They also include fiduciary fees paid to the executor who is administering the estate and fees paid to the attorney representing the executor. By Ohio statute, fiduciaries are entitled to receive four percent of the first $100,000 of probate assets, three percent on the next $300,000, and two percent of all amounts over $400,000. Attorney fees are governed by state and local probate court rules and must be approved by the probate court.

(2) Funeral and cemetery expenses. This second category provides up to $4,000.00 for funeral expenses and up to $3,000.00 for burial and cemetery expenses. The funeral expenses must be reasonable based upon the amount of the estate and general customs. Estate creditors may challenge extravagant funeral expenses that limit their chance of recovery from the remaining estate assets. Burial and cemetery expenses are limited to the purchase of a right of interment (cemetery lot or mausoleum), monument markers, the outer burial container, the cost of opening and closing the place of interment, and the urn. Funeral expenses paid by the decedent prior to death are not included as they are not a debt of the estate.

(3) Family allowance. The third category provides for payment of a total of $40,000 in money or property to the surviving spouse or the decedent’s minor children. This priority is intended to provide necessary living expenses to the surviving spouse or minor children following the decedent’s death.

(4) Debts entitled to a preference under the laws of the United States. The fourth category includes the decedent’s debts owed to the federal government. The most common examples include delinquent income taxes, overpayments of social security, veteran, or federal retirement programs, and non-payment of federal agency loans.

(5) Expenses of the last sickness of the decedent. While this fifth category is not limited to a specific time period, Ohio courts general include those medical expenses related to the illness which terminated a patient's death. Expenses incurred through a protracted illness may not qualify for this priority unless the decedent received medical treatment when he could no longer carry on his normal affairs or is bedridden.

(6) Funeral expenses ($4,001 to $6,000). This sixth category involves funeral expenses again. If the total funeral expenses exceed $4,000 in the second category above, then the funeral director can receive up to $2,000 more toward the decedent’s funeral bill in this category.

(7) Nursing home expenses. This category includes expenses of the decedent’s last continuous stay in a nursing home, residential facility, or hospital long-care unit which includes up to thirty consecutive days during which the decedent was temporarily absent from the facility.

(8) Obligations to the State of Ohio. This eighth category includes personal property taxes, claims made under the Medicaid estate recovery program, and any obligations for which the decedent was personally liable to the state.

(9) Debts for manual labor. The ninth category includes up to $300 owed to any one laborer for services performed for the decedent within twelve months preceding the decedent's death. An example is debt owed to a contractor for work performed at the decedent’s home before death.

(10) Other debts. This last category serves as the “catch-all” and includes all other debts that do not qualify for the first nine categories. It also includes any part of the funeral bill that exceeds $6,000 and any part of any manual laborer’s claim that exceeds $300.

In the state of Ohio, the law is very clear that payments must be made in the specific order listed. No payments may be made to creditors of one class until all those of the preceding class are fully paid. If the assets are insufficient to pay all the claims of one class, then the creditors of that class must be paid ratably. It is important to note that if an executor disregards the order of priority and pays one creditor more than the allowed share, then other creditors may be entitled to recover the debt directly from the executor.

And what about the beneficiaries listed in the will? Unfortunately, insolvency means that they receive nothing unless they have a priority claim that falls within the ten listed categories.

The good news is that beneficiaries will not inherit the decedent’s debt, unless they have personally agreed to pay it. Before you become involved with an insolvent estate, it is important to consult with a trusted probate attorney to provide guidance.

Have legal questions about an estate? The experienced attorneys in Medina, Ohio at Laribee Law, LLP are ready to assist you.

Need legal advice? Request a call back from a Lawyer

Michael L. Laribee - Attorney at Law

Landowner's Liability - the Attractive Nuisance Doctrine

Mon, 23 Nov 2020 18:39:59 GMT

If a child is injured while trespassing on your property, are you responsible for paying the medical bills?

The answer is: Yes, you could possibly be responsible for paying medical bills.

The Ohio Supreme Court adopted the “ attractive nuisance doctrine ” in 2001. The doctrine states that a landowner may be held liable for injuries to children trespassing on their land if the injury is caused by a hazardous object or condition that is likely to attract children who are unable to appreciate the risk. The law is intended to protect trespassing children from dangers that, due to their youth, they cannot understand.

The attractive nuisance doctrine will expose tenants and other possessors of land to liability as well as landowners. Ohio was the 47th state to implement such a doctrine.

The case involved the death of a five-year-old boy in a neighbors’ swimming pool. The neighbors failed to maintain their pool. It became pond-like and contained tadpoles and frogs. There were no ladders in the pool and the sides were slippery with algae. The neighbors also removed fences from two sides of the pool. One day, the boy entered the neighbors’ property without permission. He fell into the pool looking for frogs. His mother attempted to rescue him. Tragically, they both drowned.

In adopting the attractive nuisance doctrine, the Ohio Supreme Court noted that the neighbors knew the boy was often unsupervised and came to their property in the past. The neighbors would be liable under the doctrine if they created a dangerous condition by negligently maintaining the pool and if they reasonably should have known that the pool posed an unreasonable risk of serious harm to children. It stated that young children are entitled to a degree of care “proportioned to their inability to foresee and avoid the perils that they may encounter.”

The attractive nuisance doctrine is meant to balance society's interest in protecting children with the rights of landowners to enjoy their property. Even when a landowner is found to have an attractive nuisance on his or her land, the landowner does not automatically become liable for the injury of a trespassing child. Further, it does not extend to those conditions which children know pose an obvious danger.

The doctrine will impose liability only if:

there is an artificial condition on the property (which could include abandoned cars, swimming pools, play equipment, hot tubs, ramps, machinery, electric fences, water wells);
the artificial condition could pose an unreasonable risk of death or serious bodily of harm to children;
the landowner knew or had reason to know that children are likely to trespass and that, because of their youth, they could not discover or appreciate the risk involved;
the benefit to the landowner of keeping the condition is slight when compared with the risk to children; and,
the landowner failed to exercise reasonable care to eliminate the danger or otherwise protect children.

In the decision, Ohio Supreme Court Justice Pfeifer wrote “Despite our societal changes, children are still children. They still learn through their curiosity. They still have developing senses of judgment. They still do not always appreciate the danger. They still need protection by adults.”

If you are aware of children trespassing on your land, it is important to contact law enforcement or consult with a trusted attorney to discuss the best procedure to remedy the situation. Simply putting up warning signs may not protect you if the child is too young to read.

Without taking the proper precautions, you may find yourself paying the medical bills of young, uninvited “guests.”

The good news is that beneficiaries will not inherit the decedent’s debt unless they have personally agreed to pay it. Before you become involved with an insolvent estate, it is important to consult with a trusted probate attorney to provide guidance.

Have legal questions? The experienced attorneys in Medina, Ohio at Laribee Law, LLP are ready to assist you.

Need legal advice? Request a call back from a Lawyer

• Michael L. Laribee - Attorney at Law

Security Deposits: Avoid Disputes

Mon, 23 Nov 2020 18:35:18 GMT

One of the most common landlord-tenant legal disputes involves the return of a security deposit at the end of the lease term. If landlords and tenants understand the law and their legal rights, they learn how to avoid these time-consuming and aggravating conflicts.

Landlords usually require tenants to pay a security deposit when leasing rental property. This protects the landlord if the tenant causes damage to the unit or vacates without paying rent. There is no limit in Ohio on how much security deposit a landlord may require for residential leases. However, if the landlord charges more than an amount equal to one month’s rent, he must pay the tenant interest calculated at five percent (5%) per annum every year on that amount in excess of the one month’s rent. This includes when a landlord requires the tenant to pay the last month’s rent in addition to the security deposit.

A tenant must return the rental unit to the landlord in substantially the same condition as when received. The landlord may apply the security deposit to the cost of repairs. However, a landlord is not entitled to damages caused by tenant’s normal wear and tear. Normal wear and tear occurs naturally through proper use of the rental unit and the appliances. Examples include: minor marks on walls, traffic patterns on carpet, faded or peeling paint, or loose door handles. Damages beyond normal wear and tear include: broken windows, torn or excessively stained carpeting, holes in walls, broken fixtures, missing or damaged hardware, and alterations made without the landlord’s permission.

The Ohio Landlord-Tenant Act provides that a tenant must do all of the following: keep the premises safe and sanitary; dispose of all garbage in a safe and sanitary manner; keep all plumbing fixtures as clean as their condition permits; use and operate all electrical and plumbing fixtures properly; comply with all housing, health, and safety codes; refrain from damaging the unit or appliances; and, maintain in good working order any appliances supplied by the landlord and required to be maintained by the tenant. Additional obligations in lease agreements which are inconsistent with Landlord-Tenant Act are not enforceable. For instance, a landlord cannot require the tenant to pay for carpet cleaning at the end of the lease term unless there is evidence of damage above ordinary wear and tear.

A landlord must provide the tenant with an itemized list of all deductions from a security deposit within thirty days of termination of the lease agreement and delivery of possession. If the landlord fails to do this, the tenant may recover from landlord the security deposit plus special damages equal to the amount wrongfully withheld and reasonable attorney fees. However, to be eligible for these special damages, a tenant must provide the landlord with a forwarding address. Any provision in a lease agreement which permits the landlord to retain a security deposit without itemization of actual damages caused by the tenant is unenforceable under Ohio law. Learn more by reading : Tenant/Landlord Rights and Obligations on Ohio

So, it is best practice for the tenant to do the following at the end of the lease term to avoid legal problems:

make sure the unit is in good condition;
clean and sweep floors and carpeting, wipe down counters and walls, and repair any damage which is beyond normal wear and tear;
remove all personal property from the unit;
document the condition of the property by video or photographs;
arrange a walk-through of the unit with the landlord when keys are returned; and,
provide the landlord with the forwarding address in writing by certified mail.

It is best practice for the landlord to the following:

review the terms of the lease agreement with tenant and explain landlord’s expectations;
conduct a walk-through with the tenant at the beginning of the lease to document the condition of the unit;
have the tenant acknowledge the condition of the rental unit and appliances;
pay interest on any security deposit in excess of one-month’s rent;
explain final inspection procedures;
remind the tenant to provide a forwarding address in writing;
carefully document all damages caused by the tenant with video or photographs;
keep receipts for all repairs; and,
provide the tenant with an itemized list of all deductions from the security deposit within 30 days of lease termination.

Despite these precautions, disputes may still arise at the end of the lease. Court intervention may be necessary to determine proper deductions from a security deposit.

In that case, it is important to consult with an attorney to make sure your rights are protected, whether you are the tenant or landlord.

This article is intended to provide general information about real esate law . It is not intended to give legal advice. Readers are urged to seek advice from an attorney regarding their specific issues and rights.

Contact an attorney in Medina County, Ohio at Laribee Law, LLP, request more information about our legal services today.

• Michael L. Laribee - Attorney at Law

Guardianships in Ohio - the Basics

Mon, 23 Nov 2020 18:20:31 GMT

The purpose of a guardianship is to protect the rights of a person who is unable to manage his or her own affairs due to mental illness, physical illness, disability, or chronic substance abuse. That person is known as a ward. Guardians are competent adults who serve to protect the ward’s physical health and finances. In Ohio, county probate courts have exclusive jurisdiction over guardianship cases and have the sole authority to appoint and remove guardians. The probate court's primary responsibility is to ensure that the person appointed will serve the ward’s best interest.

At all times, the probate court is the superior guardian of a ward and oversees all actions of the guardian. Each type of guardianship requires an expert evaluation signed by a physician or a licensed clinical psychologist stating the ward’s condition and the need for a guardianship. The probate court may remove any guardian for neglect of duty, incompetency, fraudulent conduct, or failing to follow its orders.

There are four basic types of guardianships in Ohio: guardianship of the person, guardianship of the estate, limited guardianship, and emergency guardianship.

Guardianship of the person:

The guardian of the person is responsible for the ward's physical, moral, and mental well-being. This includes managing the ward’s medical care, diet, and physical safety. The guardian must ensure that the ward has the comfort and care the ward can afford. A guardian of the person also serves as guardian of the ward’s minor children if no other guardian has been appointed for them.

The guardian of the person must submit regular reports to the probate court setting forth substantial changes in the ward’s physical or mental condition, the date that the ward last saw a physician, and grounds to continue the guardianship.

Guardianship of the estate:

A guardian of the estate is appointed to manage and conserve the ward’s property and assets in the ward's best interest. The guardian must deposit all funds of the ward into an account in the name of the guardian as fiduciary. He or she must then file with the probate court a full inventory of the ward's real and personal property, including value. They must pay the ward’s debts out of the ward’s estate, collect all debts owed to the ward, invest the ward’s funds according to legal guidelines, and defend any lawsuits against the ward. The guardian may also initiate lawsuits for the ward when it is in the ward’s best interests. The guardian is not expected to spend any of the guardian's personal assets for the benefit of the ward.

Guardians of the estate must also submit regular accounts with the probate court listing all receipts and disbursements from the ward’s estate and all funds, assets and investments which remain in the guardian’s control at the end of the accounting period.

The guardian must preserve the assets of the estate. Therefore, he or she may not give property away or release any claim of the ward without adequate consideration. The guardian is liable to the ward for damages resulting from the wrongful use of property or any loss suffered by the ward’s estate that results from the guardian’s failure to exercise a reasonable degree of care. The guardian of the estate must execute a bond for the faithful performance of these obligations. At the termination of the guardianship, the guardian must render a final account and distribute the estate. The same individual may, in the probate court’s discretion, serve as both guardian of the person and estate. This allows the guardian to make nearly all decisions for the ward.

Limited Guardianship:

The probate court may appoint a guardian with specific, limited powers if it finds such an appointment to be in the best interest of the ward. The order of appointment will state the specific reasons for the limited guardianship and list the limited powers of the guardian. The court may appoint a limited guardian for a definite or indefinite period of time. The ward retains all of his or her rights in all areas which are not directly affected by the court order appointing the limited guardian.

Emergency Guardianship:

A probate court may appoint a guardian without prior notice to the ward and without a formal hearing when: 1) an emergency exists, and 2) a guardian is necessary to prevent injury to the ward or estate of the ward. The initial appointment of an emergency guardian may last for a maximum of seventy-two hours. The court may then extend an emergency guardianship up to an additional thirty days provided that it conducts a hearing after it notifies the ward and other interested parties.

It is important to consult with a trusted probate lawyer before proceeding with any guardianship action. The application process and accounting requirements are complicated. Also, there may be less restrictive alternatives to consider based on the individual’s condition and needs.

Contact an attorney at Laribee Law, LLP, request more information about our legal services today.

Related law articles about gaurdianship:

Who is a Suitable Guardian?
Guardianships: How to nominate a guardian

• Michael L. Laribee - Attorney at Law

Considering a codicil? Draft a new will instead.

Mon, 23 Nov 2020 18:18:31 GMT

Dorothy was in the habit of reviewing her last will and testament periodically to see if any changes were necessary . She updated her will several times through the years. She decided to update her will again to remove beneficiaries. She also wanted to change the named executor.

She researched codicils online and learned that they are used to amend prior wills. Instead of drafting a new will, Dorothy decided to write a codicil this time. She simply wrote out the changes on a piece of paper and had a notary public notarize her signature.

Upon her passing, her family learned that Dorothy’s codicil was not executed properly. The codicil also failed to identify which will she was updating. Accordingly, the court rejected the codicil. Her most recent, validly executed will was admitted to probate without her desired changes. The executor listed in the will administered her estate and her assets ultimately passed to those beneficiaries she tried to remove. Dorothy could have avoided this result by simply updating her will rather than trying to amend it with a codicil.

A codicil is a supplement to a last will and testament. Its purpose is not to revoke a prior will, but to amend, alter, or confirm it. A codicil does not supersede a will, but becomes part of it. Together, a will and codicil constitute one instrument to govern an estate administration.

Codicils were more common in the days before typewriters! Back then, wills were drafted by hand and scriveners did the physical writing of the documents. Codicils avoided the need to rewrite the entire document by hand when changes were necessary. Codicils are not as useful in modern times. Most wills are saved on computers and may be easily updated without the use of a codicil.

As seen in Dorothy’s scenario, codicils also can be problematic. If a codicil is defective for any reason, it must be rejected. To be valid, a codicil must be executed with the same legal formalities as a will. It must be in writing, signed at the end by the person making it, and witnessed by two disinterested witnesses who saw the person sign or heard the person acknowledge his signature. Although notarized, Dorothy’s document did not comply with Ohio law.

"A codicil may expressly revoke an entire will or simply part of it and this can lead to ambiguity." Courts generally are not likely to construe a codicil as a complete revocation of a prior will and will refuse to do so if they can reach any other conclusion by reviewing the documents. As codicils may be used to revive previously revoked wills, they must clearly identify the will to which they refer. Failure to do so may result in the wrong will being revived.

Last, codicils may become separated physically from the will. An executor may not even know a codicil exists.

The bottom line is: It's far safer to draft a new will

CONTACT OUR LAW OFFICE IN MEDINA, OHIO NOW TO LEARN MORE!

In most cases, our legal team has found that the cost of drafting a new will is generally the same as a codicil and it avoids ambiguities and disputes later on. It is important to consult with a trusted probate attorney before making changes to your will. Laribee Law, LLP can make sure that the document complies with Ohio law and will serve your testamentary intent.

Need a lawyer or have legal questions? Contact Attorneys in Medina from Laribee Law, LLP.

• Marc R. Hertrick - Attorney at Law

• Michael L. Laribee - Attorney at Law

• Ray E. Laribee - Attorney at Law

Limited Liability Companies: The Basics

duda_admin@thryv.com (admin admin) — Mon, 23 Nov 2020 17:05:22 GMT

When in comes to Business and Corporate Law , limited liability company is a form of business entity used to shield a business owner’s personal assets from the risks of a business.

Under Ohio law, it is a hybrid of both a corporation and a partnership which limits the liability of its owners while allowing flexibility in operation and management. The limited liability company is less formal and provides more flexibility than a corporation yet still provides the same liability protection. Further, it passes income to its owners with no tax at the entity level.

The limited liability company (commonly referred to as “LLC”) is authorized by the Ohio Revised Code and may be formed by one or more persons by filing Articles of Organization with the Ohio Secretary of State . It may be formed for any purpose for which individuals lawfully may associate themselves.

A "member" of a limited liability company is a person whose name appears on the records of the limited liability company as an owner of a membership interest. A person can either become a member when the limited liability company is formed or at any later time that is specified in the records of the company.

Generally, members of a limited liability company are not personally liable for the debts and obligations of the company; however, they will be liable for their own acts and omissions.

Creditors of the LLC cannot pursue the personal assets (house, savings accounts, etc.) of members to pay business debts. For this reason, the name of a limited liability company must include the words, "limited liability company" or an abbreviation like "LLC" or "limited."

A "membership interest" means a member's share of the profits and losses of a limited liability company and the right to receive distributions from that company. Membership interests are acquired through a contribution which may be in the form of cash, property, services rendered, or a promissory note.

The “operating agreement” is the governing document for any limited liability company. It can be drafted specifically to the circumstances of the members and their business. The operating agreement will outline whether the limited liability company will be managed by all of the members or by managers who may or may not be members. It will also outline the process for distribution of profits, losses, income, gains, deductions, and credits among the members.

The operating agreement will also outline the methods by which a new member becomes part of the company. Although there are no specific statutory requirements for meetings, the operating agreement usually provides for annual meetings and specific voting procedures.

A limited liability company is required to keep a number of documents at its principal office including all a current list of the members, a copy of the articles of organization, a copy of any written operating agreement, copies of federal, state, and local income tax returns and financial statements for the three most recent years.

In all cases, LLCs receive the benefit of pass-through taxation. This avoids what is called corporate double taxation in which corporations must pay income tax on its profits and then pay additional taxes on its disbursements to owners. LLCs pay tax once on the owners’ personal income tax returns. Limited liability companies with only one member are treated as sole proprietorships for tax reporting purposes. The single member will report the limited liability company's income and losses on Schedule C of his personal tax return.

Have questions about forming a limited liability company?

Need a lawyer or have legal questions? Contact Attorneys in Medina from Laribee Law, LLP.

• Michael L. Laribee - Attorney at Law

What is Non-Probate Property?

Mon, 23 Nov 2020 16:59:59 GMT

Read this example to get a better understand of Non-Probate Property:

Jack and Mack are brothers. Zeke, their father, owned a tree farm containing hundreds of acres of land. He was the sole owner. After Zeke’s wife died, he drafted a Last Will and Testament stating that his sons would each inherit one-half of his estate.

One day, Zeke was injured while harvesting trees for Christmas sales. Jack insisted that Zeke move in with him until he fully recovered. Sadly, Zeke’s physical health deteriorated. In the years that followed, Jack took care of his father. Their relationship grew stronger. Mack, on the other hand, did not visit his father often as his job kept him busy travelling abroad.

It became clear that Zeke could not live on the farm alone. Zeke decided to sell the tree farm to a real estate developer for $500,000.00. He deposited the sale proceeds at his local bank in a savings account naming Jack as a joint owner with rights of survivorship.

Upon Zeke’s death, the bank allowed Jack to withdraw the funds remaining in the joint account after he presented a certified death certificate. No probate court approval was required.

Mack was upset that Jack ultimately received all of the sale proceeds from the farm. He argued that he was entitled to one-half of Zeke’s estate as set forth in his will. Does Mack have a valid claim for one-half of the money in the bank account? Considering these facts alone, the answer is no.

Upon death, assets are divided into two categories: probate assets and non-probate assets. Non-probate assets are not governed by a decedent’s will and pass outside of probate court by virtue of a title designation which is activated upon death.

Common examples of non-probate assets include:

real estate, bank accounts, and brokerage accounts property held in joint and survivorship form;
motor vehicles and real property with a transfer-on-death designation;
life insurance proceeds payable to a named beneficiary other than the estate; and,
“payable on death” bank accounts.

All other property owned by a decedent are probate assets which pass according to the decedent’s will and must be administered through probate court.

Probate courts in Ohio have no jurisdiction to administer non-probate assets. They are not listed on the estate inventory. Likewise, non-probate assets are not generally subject to the claims of creditors who are owed money from an estate. If a decedent owns only non-probate assets upon his death, then all of his assets will pass without even considering the provisions of his will.

The issue of joint and survivor bank accounts has been the subject of many lawsuits in Ohio. Often, the survivor had to prove in court that a depositor actually intended to give the balance of money to him on the depositor’s death. Some courts traced the source of the funds to see if the survivor deposited any funds of their own to the account during the decedent’s lifetime. Other courts found that survivorship accounts were set up for the convenience of the depositor only and disallowed the survivor’s claim against the funds upon the depositor’s death.

The Ohio Supreme Court put an end to these disputes in 1994. It decided when a depositor opens an account in joint and survivorship form, it is conclusive evidence of the depositor's intention to transfer to the survivor the balance remaining in the account at the depositor's death. The survivorship account can only be challenged if there is evidence of fraud, duress, undue influence or lack of mental capacity of the depositor.

While joint and survivor accounts are a viable non-probate mechanism to transfer property at death, it has at least one drawback: both parties listed on the account have full access to the funds during the depositor’s lifetime. The depositor must have great trust in the joint owner not to deplete the account. It is important that you consult with a trusted probate attorney to review the specifics of your estate to make sure that your assets will be administered in the way you intend.

This article is intended to provide general information about the law. It is not intended to give legal advice. Readers are urged to seek advice from a trusted probate attorney regarding their specific issues and rights. Laribee Law, LLP stands ready to assist you.

Need a lawyer or have legal questions? Contact Attorneys in Medina from Laribee Law, LLP.

Do you want answers to questions about wills or estate law in ohio?

• Michael L. Laribee - Attorney at Law

What Are Dower Rights?

Mon, 23 Nov 2020 16:58:11 GMT

The idea of dower has been disregarded by most states as an antiquated concept. However, dower rights are laws related to real property, they are still recognized real estate laws in Ohio by statute and protect both husbands and wives.

For example; Joseph and Jane were married for many years. They owned their residence together here in the State of Ohio and most other assets jointly. However, Jane owned a separate house that she used as a rental property. She purchased the property during the marriage with her separate funds. The title for this property in Ohio was in her name alone!

After several years as a landlord, Jane decided to get out of the rental business. She listed the rental property for sale and quickly found a buyer. Since Joseph was not a title owner of the property, he was not involved in the listing process. Likewise, he did not sign the purchase agreement as a seller. However, at the closing of the transaction, the title company required Joseph to sign the deed along with Jane to transfer the property. Joseph did not understand why he would have to sign anything since he was not an owner of the property. The reason: Joseph had a dower interest in the property by virtue of marriage to Jane and he was required to release it.

A dower right refers to an interest in real estate that is intended to protect a spouse who does not hold title.

"Dower dates back to the middle ages and was intended to protect widows who survive their husbands.
Simply, it prevented husbands from transferring their real property without the spouse’s permission."

The idea of dower has been disregarded by most states as an antiquated concept. However, dower rights are still recognized in Ohio by statute and protect both husbands and wives. The Ohio Revised Code provides that a spouse has a life estate interest in one third of the real property owned by a spouse any time during the marriage.

Any document that intends to convey property will not terminate the dower interest unless that spouse has also signed the document. If the spouse fails to sign a deed, the buyer takes ownership of the property subject to the dower interest of the spouse. The buyer’s title in the property is technically defective as the seller did not grant complete ownership. This may cause significant title issues later on when the buyer tries to sell the property. Title companies search the deed records to make sure that all interest have been released before issuing title insurance.

Dower issues also arise when a married person mortgages property. Banks require a spouse to sign a mortgage deed so that the bank’s interest in the property is superior to the spouse’s dower rights. If the spouse does not sign the mortgage, then she may receive funds before the bank in a foreclosure sale. It is important to note, however, that the spouse will not be liable for payment of the mortgage unless she also signs the promissory note. Further, signing the mortgage does not eliminate the dower interest, it merely recognizes the mortgage lender's interest is superior.

Traditionally, dower is terminated in one of three ways:

1. By signing a deed releasing dower;

2. By divorce or dissolution of marriage; or

3. By death of a spouse.

There is a curious statute in Ohio that states dower interest can be barred if the husband or wife “leaves the other and dwells in adultery” unless the arrangement is condoned by the other spouse. This statute remains on the books despite some action to repeal it in 1976. It serves as an interesting wrinkle in a very old concept that Ohio has yet to give up.

Have Legal Questions About Dower Rights?

Before relinquishing any rights in property, it is important to review all of the facts and circumstances with a trusted real property attorney. Laribee Law, LLP stands ready to assist you.

Need a lawyer or have legal questions? Contact Attorneys in Medina from Laribee Law, LLP.

Would you like to get answers to questions about real estate laws or any type of property law in Ohio?

• Michael L. Laribee - Attorney at Law

What is a Conservatorship?

Mon, 23 Nov 2020 16:52:52 GMT

Leon is 82-years-old and lives alone. Through the years, he amassed a large stock portfolio and ownership in several real estate investments. His memory is great and he remains intelligent and alert. Unfortunately, his vision is failing him. Leon is unable to review and monitor the many reports he receives weekly from various stock brokers and managements agents. He is beginning to lose his passion for managing his assets. However, Leon doesn’t want to liquidate his stocks and real estate as the income provides a nice retirement. How can he get help without risking loss of his assets? Moreover, how can he control or even terminate the arrangement if he doesn’t like it? A conservatorship is a possible solution.

What is a Conservatorship in Ohio?

Conservatorships, first established in Ohio in 1990, are voluntary trust relationships whereby one party, known as a conservator, acts with court supervision for a competent, but physically infirm adult, who is called the conservatee. The decision to establish a conservatorship is in the conservatee’s sole discretion. In fact, a probate court must determine that the decision to establish a conservatorship is absolutely voluntary. The conservatee chooses the person who will help him and what assets will be included. The conservatee also decides when to terminate the conservatorship.

The conservatorship is initiated by filing a petition in probate court.
The conservatee nominates a suitable person to act as conservator.

The court then conducts a hearing to determine whether the petition was filed voluntarily and whether the proposed conservator is a suitable candidate.

If the court is satisfied with the petition, it will issue an order of conservatorship setting forth the specific duties and assets included in the conservatorship. The court will set a bond in an adequate amount to protect the value of the conservatee’s assets.

Basic guardianship laws govern the conservator’s duties. For example, a conservator must file with the court an inventory of assets and regular written accounts detailing all financial dealings. Unlike a guardianship, however, the conservatee can decide which of the guardianship duties and procedures the conservator must follow. He can establish how long the conservatorship will exist. It can be a definite or indefinite period of time. He can designate which assets are included. Unlike a guardianship, the conservatee retains control of the process. The court will review the reports to make sure the conservator is acting properly and with due care.

The law is very clear that neither the establishment of a conservatorship nor the filing of a petition for conservatorship shall be considered as evidence of mental impairment. The very core principle of conservatorships is that the conservatee is mentally competent to handle his affairs. His limitations are physical only.

If a conservatee is concerned that the public may view his asset information, he may request that the court place sensitive records in confidential status. The conservatee may modify the powers of a conservator at any time by filing a motion with the court. Likewise, the conservatee may terminate the conservatorship by serving the conservator with a written termination notice and filing it with the court within fourteen days of its execution. The conservatorship will also terminate upon the conservatee’s death or upon a judicial determination of mental incompetency.

If you are interested in a conservatorship, the lawyers in our firm in Medina, Ohio are able to review the specifics of your assets and to make sure the conservatorship petition is carefully tailored in the most advantageous way.

Need a lawyer or have legal questions? Contact Attorneys in Medina from Laribee Law, LLP.

Have questions about conservatorship?

• Michael L. Laribee - Attorney at Law

Asked to co-sign a loan? Consider the risks first.

Mon, 23 Nov 2020 16:50:03 GMT

Leon was very fond of Joey, his 22-year–old grandson. In fact, his affection for Joey often blinded him to the fact that Joey was not very responsible. Since high school graduation, Joey bounced between low paying jobs. Several of his employers fired him for failing to show up for work. Nevertheless, Leon knew that Joey had a good heart.

One afternoon, Joey came to Leon’s house and told him that he needed a car for a job delivering pizzas. Joey could not get a car loan on his own since he had very little credit history and virtually no income.

He asked Leon to co-sign on his car loan and Joey promised Leon that he would make all of the payments. Joey also told Leon that since the loan would be listed under Joey’s name as the primary borrower, Leon wouldn’t ever have to worry about anything.

Leon always helped his grandson. So, he went to the car dealership with Joey and co-signed for Joey’s brand new car. The bank approved the car loan immediately since Leon’s credit was stellar.

After signing the loan documents, Joey lost the pizza delivery job. Joey found sporadic work, but no steady employment.

About a year later, Leon received a notice from the bank that the car loan was in default. The notice stated that Joey had not made the payments for the past four months. The bank was demanding full payment of the loan principal from Leon in the amount of $27,000.

Joey admitted to Leon that he stopped paying the car loan. Joey also told him that he crashed the car. Worse yet, there was no insurance to pay for the damage. The car was sitting in a junkyard somewhere. Joey was unemployed and had no money to pay the bank. When the bank threatened to sue Leon and file a judgment lien against his house, Leon paid the bank in full from his savings.

Co-signing a loan is an extremely risky proposition . Legally, there is no difference between the primary loan applicant and the co-signer when it comes to the responsibility for making payments on the loan.

Further, a bank can normally go after the co-signer without first collecting from the primary borrower. Both the primary borrower and the co-signer are held 100% percent liable for the entire debt. The co-signer cannot demand that the bank go after the primary borrower first for repayment of the loan. This is true even when the co-signer does not hold title to any security (like Joey’s car) or control the payments.

The bank usually has no obligation to notify the co-signer if the primary borrower misses a payment. If the bank files a lawsuit against the co-signer, it does not have to name the primary lender in the case. The co-signer would have to bring the primary borrower into the lawsuit. In our scenario, it is very unlikely that Leon would file a formal claim against Joey. Almost always, the co-signer has more to lose. Creditors know this and won’t waste time chasing an uncollectible party. Even if a co-signer settles a claim with the bank, he may have to report debt forgiveness income on his next tax return if the bank takes less than the full balance owed on the loan.

For car loans, the co-signer should understand that his name will not be listed on the title. He has no ownership interest in the collateral. The co-signer can’t legally force the primary borrower to sign over the car title to him. As in our scenario, the primary borrower may not obtain sufficient insurance to pay the loan balance if the vehicle is stolen or damaged.

Co-signers also risk taking a significant hit to their credit score. The initial loan application will count as a credit inquiry which may temporarily lower the co-signer’s rating. The new loan obligation will also affect the co-signer’s debt to credit ratio. The co-signer may have difficulty in future loan applications of his own. Plus, every time the primary borrower is late with a payment, the co-signer’s credit score takes a hit.

There are a few steps a co-signer can take to protect himself. A co-signer should have the bank statements sent to him directly so he knows if payments are current. Even better, the co-signer could require the primary borrower to send the payments to him. That way, the co-signer can pay the bank directly and keep a good record of the loan activity. If there is collateral involved in the loan, the co-signer should make sure that sufficient insurance remains in place. Finally, if the co-signer cannot afford to pay the loan himself, then he should not sign on the dotted line.

Need a lawyer or have legal questions? Contact Attorneys in Medina from Laribee Law, LLP.

Death of the Ohio Death Tax

Mon, 23 Nov 2020 16:43:08 GMT

While there has been great discussion nationally about tax reductions, many Ohio residents don’t realize that a significant change has occurred in our state. Effective January 1, 2013, the Ohio Legislature repealed the Ohio Estate Tax. This legislative change occurred with the passage of the 2012-2013 Budget Bill, House Bill 153. The effect is that there will be no tax whatsoever on estates of individuals who die on or after January 1, 2013. Furthermore, no consent forms are required for transfers of accounts and assets belonging to individuals who die on or after January 1, 2013.

The Ohio Department of Taxation reports that the estate tax was enacted in 1968 to replace a state inheritance tax. There has been an inheritance tax in Ohio since 1893 during the McKinley administration.

The Ohio estate tax has long been criticized as an unfair “death tax” that drove retirees and businesses out of our state. It was particularly hard on the farming community. Often, farm land would have to sold to pay the estate tax, reducing the farm land for future generations.

The Ohio estate tax brought in nearly $334 million in 2009. Of that amount, 20 percent went into state coffers. The remaining 80 percent was directed to local governments. Many Ohio local officials have expressed anger with the change, saying that the loss of revenue will force them to cut services to their constituents.

It is important to note that the Ohio estate tax must still be paid by those individuals who died prior to January 1, 2013. The estate tax has two rates: 6 percent for estates between $338,333 and $500,000, and 7 percent for estates worth more than $500,000. Those estates with a gross taxable value of $338,333 or less are still effectively exempt from payment of the tax. For those dying prior to January 1, 2013, the tax commissioner still requires the filing of consent forms for accounts with a value of greater than $25,000. These consent forms are not required when assets are passing to a surviving spouse alone, regardless of the dollar amount.

While the Ohio estate tax has been repealed, the federal estate tax is still very much alive. In 2014, estate assets in excess of $5,340,000 will be taxed at the rate of forty percent (40%).

Taxation is only one thing to consider in developing a sensible estate plan. It is important to review your individual situation with a trusted probate attorney.

Have legal questions? The experienced attorneys in Medina, Ohio at Laribee Law, LLP are ready to assist you.

Need legal advice? Request a call back from a Lawyer

Do you want answers to questions about wills or estate law in ohio?

• Michael L. Laribee - Attorney at Law

Choosing the Right Executor

Mon, 23 Nov 2020 14:29:35 GMT

What is an executor?

An executor, or executrix if female, is a person nominated to carry out the directions in a last will and testament. Their primary duty is to distribute estate property after death in a legal and orderly fashion. Clients often struggle deciding who they should name to fill this important position.

When nominating an executor, most importantly, an executor should be organized and trustworthy. He must abide by strict deadlines, communicate effectively with beneficiaries, and work well with attorneys and other professionals whose services are necessary to complete the estate. The estate process can be very time consuming and intricate - Many estates take longer than one year to complete.

In most cases, married people will nominate their spouse as their primary choice for executor or executrix.

It is advisable to name an alternative executor in the event the primary choice is not available or is otherwise unable to serve. Choosing among children or other family members is often difficult. It may lead to feelings of disappointment or hurt. Death often intensifies strained relationships and may magnify conflicts.

A good executor must maintain a positive relationship with the beneficiaries and is able to act fairly.

Lawsuits and disputes are becoming more common in estate administration. It is advisable to choose a decisive person who can withstand second-guessing by other beneficiaries and focus on the wishes of the decedent. When emotions run high, people lose sight of the goal of settling an estate efficiently and economically. It is far too easy to become mired in disputes over items which have only sentimental value. A strong executor may avoid spending thousands of dollars in litigation over valueless property.

If conflict between beneficiaries is expected, then naming a neutral third-party as the executor may be best. It is important to remember, however, that executors are allowed to take a fee based upon the amount of property in the estate. Depending on the value of the property, this fee can reach many thousands of dollars and is paid prior to distributing the balance of estate assets to the beneficiaries. The executor fee can be waived, however. It is more likely that a family member will decide to waive this fee. This allows more money to be disbursed to the beneficiaries.

It is not advisable to choose joint or multiple executors as this complicates the estate administration. Simple tasks like banking and listing property for sale become more cumbersome. Joint executors must sign all court documents and agree on all decisions, large and small.

Disagreements between executors could cause long delays in your estate administration.

The probate court has exclusive jurisdiction to direct and control the conduct of an executor, so having one executor is sufficient.

The proposed executor should live in the same state as the decedent. Otherwise, a court may require the executor to post a bond in an amount not less than twice the value of the personal property of the estate. They are also required to maintain a separate estate bank account located within the State of Ohio. It is best practice to choose an executor who lives in or near the county where the estate is administered. Use the following link to see a map of all counties in the State of Ohio .

Keep in mind that selecting an executor that lives close, helps to make it much easier for the executor to meet with the estate attorney, sign documents, maintain real property, preserve personal property, conduct banking, and attend required court hearings.

Executors should be informed that they have been named in a will, their nomination should not be a surprise. The executor should understand the wishes of the person making the will long before their death.

Other ways to assist an executor during estate planning:

Keep complete, quality, organized records;
Tell the executor where to find important documents including the will, deeds to real property, car titles, insurance policies, and tax returns;
List all bank accounts, safe deposit boxes, stocks, brokerage accounts, retirement accounts, including corresponding account numbers and financial institutions;
List passwords and safe combinations;
List the contact information for the professionals who are to be consulted upon death including attorneys, accountants, investment advisors, and insurance agents; and,
Make written funeral service and burial arrangements.

Doing these things will streamline the process. Before choosing an executor, it is imperative to seek the assistance of an experienced probate attorney to review individual facts and circumstances.

This article is intended to provide general information about the law. It is not intended to give legal advice. Readers are urged to seek advice from an attorney regarding their specific issues and rights. Contact an attorney in Ohio at Laribee Law, LLP to request legal help with estate planning.

Have legal questions? The experienced attorneys in Medina, Ohio at Laribee Law, LLP are ready to assist you.

Need legal advice? Request a call back from a Lawyer

Do you want answers to questions about wills or estate law in ohio?

Michael L. Laribee - Attorney at Law

Duties of an Executor

Mon, 23 Nov 2020 14:20:41 GMT

When drafting a Last Will and Testament, it is important to carefully choose the person who will serve as the

An executor, or executrix if female, is a person nominated to carry out the directions in a Will and to dispose of estate property after death in an orderly fashion. The executor should be organized and trustworthy. He should also appreciate the seriousness of the position.

The probate court has exclusive jurisdiction to direct and control the conduct of an executor. The court will appoint an executor provided that he is named in the Will and is suitable and competent. The court will require the executor to post a bond in an amount not less than twice the value of the personal property of the estate, plus any annual real estate rentals. The bond requirement will be waived, however, if the Will provides that the executor may serve without bond or the executor is the next of kin and is entitled to the net proceeds of the entire estate.

The main duty of an executor is to collect assets of the decedent, to pay debts and then to distribute any balance to the beneficiaries listed in the Will.

He is charged with the safekeeping of all proceeds and personal property that comes into his hands from the personal estate of the deceased. Other duties include locating and notifying beneficiaries, identifying the location and nature of estate assets, arranging appraisals, selling real and personal property, compiling an inventory, paying taxes and examining estate debts to determine which claims against the estate will be allowed. They may also have to defend lawsuits filed against the estate or bring legal actions against those who owe the estate money.

The liabilities of an executor flow from the fiduciary duties they have assumed through accepting the position. When appointed, the executor must sign an oath in which he agrees to do the following:

Give notice of the filing of the Will to all next of kin
Prepare and file an inventory of the real and personal assets of the estate
Deposit all funds in a separate estate bank account located within the State of Ohio
Invest all estate funds in a lawful manner
Prepare and file a final account within six months of appointment
File all estate or income tax documents as required by law
Maintain adequate insurance to reasonably protect estate property
Obey all orders of the probate court

It is essential that an executor perform his duties in good faith and with the care that a prudent person would exercise in the management of their own affairs. The executor may be removed by the court if he fails to perform any of these duties. Further, he will be subject to civil and criminal penalties for improper use of the estate property. An executor, however, will not be held responsible for any loss or destruction of property if they are not personally at fault.

It is advisable that an executor seek the assistance of an experienced probate attorney to make sure that the estate is administered correctly. Even the simplest estate requires great care. A probate attorney will see that an executor’s fiduciary duties are met and that the estate is administered properly and in a timely fashion.

Need a lawyer or have legal questions? Contact Attorneys in Medina , Ohio from Laribee Law, LLP.

Do you want answers to questions about wills or estate law in ohio?

• Michael L. Laribee - Attorney at Law

Financial Powers of Attorney: A Very Useful Tool.

Mon, 23 Nov 2020 14:12:52 GMT

If you do not already have a financial power of attorney, it might be time to consider one. They are relatively simple legal documents which provide a great benefit.

A financial power of attorney is an instrument that allows one person to act for another in financial matters . The person making the document is called the principal. The person designated to act for the principal is called the attorney-in-fact. The attorney-in-fact does not need to be a lawyer. Almost anyone can be appointed. However, a principal must carefully consider their choice of attorney-in-fact since the document grants significant powers.

A power of attorney can give sweeping authority to act in any and all financial matters.

It can cover all property of the principal or it can be limited to a specific transaction such as the sale of a house. Some powers of attorneys are limited to a specific period of time. They can be very useful when someone plans to take an extended trip outside the state or if they are recovering from an illness.

Most people, however, use a power of attorney when they need assistance in handling their everyday financial affairs such as paying bills or handling their banking matters. A power of attorney can also be used when a person is not able to make decisions due to mental or physical incapacities. The document can be drafted specifically so that is not affected by the disability of the principal. This is called a durable power of attorney.

Like in any legal relationship, the parties should understand their duties and liabilities. The principal should understand that he alone will be liable for all authorized acts of the attorney-in-fact. Likewise, the attorney-in-fact should know that she will be liable to the principal or the principal's heirs for losses if she exceeds her authority or violates the terms of the document.

In the state of Ohio, the principal can always revoke a power of attorney by sending written notice to the attorney-in-fact. If the document was recorded, however, the revocation must also be recorded for effective termination.

Financial powers of attorneys can be drafted and formed to fit the particular needs of the principal. It is important to use language that complies with the current law when creating such a document. Therefore, it is recommended that the principal consults with a lawyer to discuss their specific needs.

Need a lawyer or have legal questions? Contact Attorneys in Medina , Ohio from Laribee Law, LLP.

Related law articles:

An Agent’s Duties Under a Power of Attorney

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Michael L. Laribee - Attorney at Law

All Is Not Lost: When a Will is Lost or Destroyed

Mon, 23 Nov 2020 13:48:11 GMT

Aunt Eunice kept all of her important papers in an old filing cabinet in her basement. She had separate files for her deed, car title, life insurance policy and original last will and testament.

Her niece, Jenna, was listed in her will as the sole beneficiary. Aunt Eunice also listed Jenna as the executrix of her will. Jenna had a key to the cabinet in the event she had to retrieve the documents.

Sadly, Aunt Eunice passed away after a short illness. Her passing was marked by several days of torrential rainfall. Like many of the houses in the neighborhood, Aunt Eunice’s basement was flooded. When Jenna went to retrieve her aunt’s will, she found the cabinet under several feet of water. Aunt Eunice’s will was illegible. It was just a pile of mush. How could Jenna administer her aunt’s estate if the will was destroyed?

While practicing law our firm has often received calls from clients who have discovered that their relatives’ wills are either lost or destroyed. All is not lost, however. Ohio law provides for specific procedures in such an occasion.

A probate court in Ohio must admit a lost or destroyed will for an estate administration if the following conditions are met: The person seeking to admit the will into court must establish by clear and convincing evidence that the will was executed properly as well as the contents of the will. The court also must be satisfied the decedent did not revoke the will prior to death.

To satisfy these conditions, the party seeking to admit the will must give written notice to the surviving spouse of the decedent and to all people who would be entitled to inherit from the decedent. Likewise, all named beneficiaries in any prior known will must be notified.

The court will then hold a hearing when witnesses will give testimony relevant to the will and the decedent’s intentions. If the court is satisfied that the conditions have been met, it will issue an order setting forth the contents of the will as near as can be ascertained. Thereafter, the court will treat the established will like any other will admitted for probate administration .

Jenna’s predicament is a cautionary tale. At the very least, original wills should be kept in a secure, fireproof and waterproof safe or cabinet. Wills should not be kept in a bank safety deposit box unless there is another person who would be able to legally access the box upon the death of the testator. When drafting your will, ask your probate attorney the best way to safeguard it. That way, you are sure that your intended bequests will be followed. Laribee Law, LLP is here to assist you.

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Maude and her brother, Claude, bought a house together. They intended to use the property as a residential rental to supplement their income in retirement. Neither of them had a spouse or children. They each owned an undivided one-half (1/2) interest in the property.

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