If you are the Executor of an estate and you fail to probate a will, you may be held personally liable for expenses incurred by the estate and financial impacts to the beneficiaries or heirs of the decedent.  An Executor owes a fiduciary duty to manage the estate in good faith, so if an Executor fails to probate a will, this constitutes a breach of a fiduciary duty.  That said, all these consequences can be avoided with proper planning and guidance. 
 
Probate is the legal process of administering certain property of a person who has passed away, called “the decedent.”  The process will be managed by the Executor or Administrator of the estate and supervised by the Probate Court.  If there is a will, then the fiduciary named in the will is called the Executor.  If there is no will, the individual who applies and is appointed to take charge of the process is called the Administrator.  The Probate process involves verifying the validity of the will (if there is one); identifying and gathering the decedent’s property; paying the claims, taxes, and other expenses incurred by the estate; and distributing the remaining assets to the beneficiaries named under the will.  If there is no will, then the remaining assets will be distributed according to the state laws of descent and distribution. 
 
It is important to know that not all assets are probate assets.  Some property can pass directly to its recipient outside of the probate process.  Property that is not subject to probate includes property held in a trust, real estate owned with another individual with rights of survivorship, joint bank accounts, Payable on Death or Transfer on Death accounts, life insurance benefits with a beneficiary designation, or retirement benefits with a beneficiary designation.  If a decedent’s assets do not fall within one of these categories, then the asset will be deemed a probate asset and must pass through the court before distribution. 
 
Probate is the only legal way to transfer the probate assets of a decedent.  If probate assets do not pass through the court, then titled assets such as real estate and cars will remain in the name of the decedent indefinitely, and accounts held in only the decedent’s name will not pay out.  If titled property remains in the name of the decedent, then this affects the ability to sell the property in the future.  The estate may also incur ongoing expenses such as property taxes, insurance premiums, and car registrations.
 
If you or someone you know is in need of legal assistance with a Probate matter in Franklin County, call Lardiere McNair DiNicola & Stonebrook to set up a free consultation. 

Amanda Plautz is an Associate Attorney at Lardiere McNair DiNicola & Stonebrook, Ltd., LPA.  To read more about our firm, please visit lawyerscolumbusohio.com.

Businesses across the United States were impacted by closures and losses related to the COVID-19 Pandemic, resulting in loss of income, supply chain interruptions, reduced demand due to social distancing measures, and other potential damages. These considerable losses led many businesses to seek compensation from their insurers. As early as April 2020, businesses began making claims, stating that their losses were covered under the “business interruption” or the “civil authority” provisions.

Regrettably, insurers provided little to no relief on the basis that Business Interruption claims related to COVID-19 were not covered, particularly because many policies expressly excluded coverage for viruses. Likewise, the insurance industry was very reluctant to cover losses under the “Civil Authority” clauses, as the presence of COVID-19 by itself or an order from a civil authority standing by itself does not rise to the level of physical loss or damage.

As businesses faced coverage denials, many filed lawsuits. To date, the majority of the cases have been decided in favor of insurers, due to reliance on policy exclusions or claims that COVID-19 does not cause “physical damage” that triggers business interruption or civil authority. However, a case in Ohio state court determined that a virus exclusion did not apply after analyzing the specific wording of the exclusion. In finding that the exclusion did not apply to the insured’s claims, the court stated: “It is obvious to this Court that a virus is not the same as a pandemic. The insurer, being the one who selects the language in the contract, must be specific in its use; an exclusion from liability must be clear and exact in order to be given effect…” McKinley Dev. Leasing Co. v. Westfield Ins. Co., C.P. No. 2020 CV 00815, 2021 Ohio Misc. LEXIS 17 (Feb. 9, 2021)

Recently, the Ohio Supreme Court has been asked to decide whether exposure to COVID-19 constitutes a physical loss or damage to insured property sufficient to trigger coverage under a business interruption insurance policy, Neuro-Comm. Svcs. Inc. v. The Cincinnati Ins. Co., No. 2021-0130 (Ohio Sup. Ct.). While we wait for the Ohio Supreme Court to decide this pending case, as well as others across America, companies should continue to take proactive measures such as reviewing their policies and looking for appropriate coverages.

If COVID-19 taught us anything, it is that a global pandemic is not a rare event. We have to consider there is potential for more closures during our lifetime. As such, companies may also want to consider having an attorney review their policies to better understand the terms and conditions.

At Lardiere McNair DiNicola & Stonebrook Ltd., LPA, our experienced attorneys can review your policy or assist if you have been improperly denied coverage. Call (614) 534-1355 and schedule a free consultation.

A new law going into effect on March 2, 2022, is aimed to combat robocalls and make it more difficult for scammers to contact Americans by creating standardized requirements for telemarketers. Senator Theresa Gavarone, who sponsored the bill, stated that this new legislation makes Ohio the hardest state in the country in which to conduct a robocall scheme.

Senate Bill 54 strengthens Ohio’s telecommunications fraud laws by criminalizing “spoofing,” a tactic largely used by scammers where foreign robocall companies purchase domestic numbers from U.S third party companies and use local area codes, making it more likely for someone to answer the phone.  The law also increases criminal penalties for robocalls in Ohio if the victim is elderly, disabled or a military member or their spouse.

Senate Bill 54 further gives more power to Ohio’s Attorney General to bring cases against scammers in state court, rather than federal court. Since 2020, the Ohio Attorney General has been developing tools to help combat robocalls, leading to the formation of a Robocall Enforcement Unit.
Although the legislation will cut down the number of Robocalls, the Ohio Attorney General’s office recommends following these simple tips to avoid being targeted by robocallers:

• Never interact with a suspected robocaller in any way.
• Avoid providing personal or financial information by phone.
• Register your phone number with the Do Not Call Registry online at DoNotCall.gov or by phone at 1-888-382-1222.
• Research services offered by your phone provider to block unwanted calls.
• Install a trusted and reliable app on your cellphone to block or warn of suspicious calls.
• In doubt, just don’t answer the phone.

If you have fallen victim to a robocall scam, call Lardiere McNair DiNicola & Stonebrook Ltd., LPA, at (614) 534-1355 and schedule a free consultation.

For more information go to: https://www.ohioprotects.org/, or call 800-282-0515

Since the beginning of the COVID-19 pandemic, we’ve seen an overall rise in Probate Matters that come through the door.  Generally, when a person is appointed as the Executor of an estate, they may not have a full understanding of the different options available to administer the decedent’s estate.  Many clients are surprised to learn that, depending on your relationship to the deceased and the value of the potential estate, there may be some short-cut options to administering the estate.

If a decedent has left behind a Will and appointed an Executor, there are generally three potential options for administering the estate:  a Full Administration, a Release from Administration, and a Summary Release from Administration. Both the Release from Administration and the Summary Release from Administration are “short-cut” applications that require less documentation than a Full Administration requires.

The Full Administration is likely what most Executors will have to file with the Probate Court to administer the decedent’s estate.  This application requires the most documentation out of the three options and the highest filing fee.  If the decedent’s assets exceed $100,000, the Executor can likely expect to be filing for a Full Administration with the Probate Court.

The Application for Release from Administration may be viewed as the middle tier option.  This application is available if: (1) the applicant is the surviving spouse of the decedent and the assets do not exceed $100,000; or (2) the applicant is someone other than the surviving spouse and the assets do not exceed $35,000.  The filing fee for a Release from Administration is also less expensive than that of a Full Administration.

Perhaps the easiest option is the Application for Summary Release from Administration.  This proceeding is available if: (1) the applicant is the surviving spouse entitled to the entire family allowance, the surviving spouse paid or contracted to pay the funeral bill, and the assets do not exceed $40,000, plus $5,000 for funeral reimbursements; or (2) the applicant is someone other than the surviving spouse and paid for or contracted to pay the funeral bill, the assets do not exceed $5,000, and the funeral expenses are equal to or exceed the amount of the assets.  This application is the least expensive and probably the quickest way to administer an estate.

In general, it can be rather intimidating to be appointed as someone’s executor, which is why it can be a great idea to seek the help of a Probate Attorney to help guide you through the process.  If have been named as an executor in someone’s will or are in line to administer an estate of someone who died without a will, please give our office a call at (614) 534-1355 for a free consultation.

A Revocable Living Trust is a type of estate planning instrument, most often used as a Probate avoidance tool.  During your life, the Revocable Living Trust holds title to the assets transferred into it.  As its name indicates, this type of living trust is revocable, meaning that any assets transferred into the trust can be transferred out of the trust while you are still living.  Upon your death, the successor trustee is tasked with distributing the assets of the trust according to the terms of the trust instrument.

There are many advantages to setting up a Revocable Living Trust.  Perhaps one of the most important advantages is that a Revocable Living Trust allows your executor to avoid probate court.  Because your assets are held by the trust rather than your estate, they are not probate assets and do not need to go through the probate court process before distribution.  Not only does this mean that your loved ones can avoid the time-consuming and sometimes complicated process of administering an estate through probate court, but it also allows your beneficiaries to receive distributions sooner.

Additionally, just like a Last Will and Testament, a Revocable Living Trust allows you to dictate exactly what will happen to your assets upon death.  The Revocable Living Trust offers great flexibility in instructing not only who will receive your assets, but also when they can receive those assets.  More specifically, you can indicate to your successor trustee through the Trust instruments exactly when you want certain distributions to be made after your death.

Lastly, setting up a Revocable Living Trust allows you to keep financial affairs more private.  When an estate is administered through probate court, it becomes a matter of public record.  Because a Revocable Living Trust allows your trustee to make distributions without involving the probate court, you and your loved ones ultimately retain more privacy after your death.

Many people believe that setting up a simple Will is all that is needed to protect your assets after death and provide for your living loved ones.  While it is true that executing a Last Will and Testament is a responsible first step in your estate planning, setting up a Revocable Living Trust adds an additional layer of control over your assets and efficiency in distributions.

If you or someone you know is interested in setting up an estate plan, or learning more about available options, call Lardiere McNair DiNicola & Stonebrook to set up a consultation.