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Dayton, Ohio Probate and Business Law Blog

Probate courts face issue of whether to release private emails

In Ohio and other states, should a person's estate have complete control over the decedent's private emails?  A service provider, Yahoo, recently filed a petition to the U.S. Supreme Court, asking that it reverse a state court decision holding that a probate court could not refuse the estate's access to the deceased man's private emails. The original refusal of access was based on the federal Stored Communications Act (SCA), which sets up certain privacy protections for electronic accounts.

Yahoo claims that the SCA does not allow it to release the man's personal emails. The decedent died intestate (without a will) at age 42 in a motorcycle accident in 2006. If he had made a will, he could have made provisions for the disposition of the emails and his other electronic accounts. However, since more than half of the adult population nationwide does not have a will, the issue takes on some prominence, which may lead the Supreme Court to accept jurisdiction over the case.

Estate planning may be a valuable gift to one's loved ones

Estate experts in Ohio and elsewhere would likely agree that the spirit of Valentine's Day justifies a special kind of gift for one's family: the gift of an estate plan that will protect the family if one becomes disabled and unable to handle his or her own affairs. It is also the gift of knowing that, when the person dies, his or her wishes will govern the distribution of assets. In addition, estate planning assures that all measures will be taken to protect the assets against certain creditors and protect those assets for the designated heirs.

It is always the right time to make a will or a living trust, and have all other vital planning documents that will work to prevent excessive expenses if the individual becomes incapacitated or dies. To prevent an all-out battle in court over the court appointment of a guardian or conservator, the relative must assign a power of attorney while alive and competent. Otherwise, significant financial assets may be squandered while arguing over the issue inside a courtroom.

Estate planning includes the use of trusts to avoid probate

Probate of an estate in Ohio begins after an owner of assets dies. The owner may die with or without a will. If there is no will, but there are assets in the decedent's name, an estate must be opened. With no will, estates must follow state statutory rules and may not try to satisfy the decedent's wishes. The decedent's wishes would be honored if estate planning had been conducted.

In the estate planning process, a will and other important documents can be drawn up. With a will, the choices will be the testator's and not the state's. In addition, some people may decide also to make a revocable living trust and put some or all assets in the trust during life. In that way, probate can be avoided because the assets in a living trust are exempt from probate.

Judge names state for probate litigation: Heirs battle for corpse

Many Ohio readers are familiar with the legacy of Charles Manson, which is wrought with scandal, mystery and devastation. Convicted for spearheading a string of murders in 1969, he spent the rest of his life behind bars. The aftermath of his death has also been filled with controversy. In fact, it even took some time for a judge to decide where probate litigation regarding the decedent's estate should take place.

Since Manson was moved around from jail to jail, court officials weren't sure which state should be considered his residence. As it stands, the judge ruled for the state Manson lived in when he was convicted. Other complications still need to be ironed out, however, including who should get Manson's remains.

3 factors that increase the likelihood of estate disputes

When it comes to estate planning in the Dayton, Ohio, area, one of the best things you can do to keep your loved ones from fighting amongst themselves. All too often estate disputes occur because one or several individuals do not agree with the final instructions the deceased has left behind. 

You do not want your relatives going at each other’s throats and making claims that cause your estate to be held up indefinitely in probate court. Take some time to review the following signs that indicate your loved one might contest your will. 

Probate litigation is common between stepmothers and stepchildren

It may not be a popularly known phenomenon, but in Ohio and elsewhere there is a propensity toward probate disputes between stepmothers and their stepchildren. Indeed, the source of such probate litigation may likely be innately tied to the bitter emotional distrust that can develop in such relationships in many families. Stepfather disputes are a little less common than those with stepmothers, but this may simply be due to more abundant numbers of elderly stepmothers who live longer than stepfathers.

Studies verify that there are not generally warm and fuzzy feelings and relationships between stepparents and stepchildren. There are some tell-tale signs that may be observed as a predictor of future disputes. Lopsided estate distributions set forth in the decedent's will can be a major source of probate litigation. A disproportional distribution may be an obvious stimulator of hard feelings and a stoking of long-lived rivalries.

Ohio law supports estate planning for business owners

Ohio business owners can benefit from establishing estate planning provisions for the protection of their families, partners and employees. In the personal context, a business owner will benefit from setting up some basic estate planning instruments that are suited to all individuals. The most well-known of these is the person's last will and testament.

The will appoints a personal representative (executor) to carry out the dictates of the maker (testator). It contains provisions for disposition of the testator's assets after death. A will is equally if not more important for a business owner because it may set forth the testator's specific instructions for the business. Without a will, the assets may be distributed according to the state's intestate laws, which may conflict with the individual business owner's needs and wishes.

Business law provides a secure backdrop for new startup

Ohio has its fair share of entrepreneurs and business creators who have started or want to start a new business law enterprise. According to accomplished startup entrepreneurs, the first 90 days is the time to establish a solid foundation for the business, including the business law structure. During that time, they recommend a number of ideas for building that foundation and for nurturing the experimental entrepreneurial spirit.

It is perhaps surprising to know that the Panel Study of Entrepreneurial Dynamics, which follows the activities of new enterprises, has concluded that those who perform more startup activities faster are more likely to enjoy profits. The speed at which a startup launches is a heavy influence in its future profitability. An exploratory approach to most subjects is the initial perspective for the startup.

The executor administers the decedent's probate estate

Acting as the executor or personal representative to someone's estate in Ohio is not an easy task that is quickly discharged. The probate of an estate may take many months before all the loose ends are wrapped up and the estate can be successfully concluded. A person can be appointed in a will to be the decedent's executor or, where the decedent had no will, the person stepping forth will likely be a next of kin who, in the face of no opposition, will be appointed by the court to perform the job.

All estates are similar in some respects, and the duties of the executor follow a generally recognized pattern. The executor must find and preserve the assets of the estate. This includes all property owned in the decedent's name at the time of death. If there is a home, the executor will see to it that the property is protected and the bills are paid until the property is disposed of under law or according to the will.  With no will, the usual course will be to appraise and sell the real estate through auction or a private broker.

What do you owe kids and grandkids in your estate?

When it comes to planning your estate, most people want to ensure that their kids and grandkids are provided for after they pass. Leaving assets to your family can help them maintain financial security, and if you are passing along heirlooms, it can preserve memories in the family, too. Sometimes, however, you might wonder how much—if anything—you are obligated to leave to your family members.

There are a few things you should take into consideration when you are drafting your trust or will. Regardless of your motivation, there are several valid reasons you may elect not to include your kids or grandkids, but you should keep the following in mind if this is the route you choose to take: 

  • Ohio State Bar Association | Connect.Advance.Succeed
  • Federal Bar Association | ORG Jan 5th 1920
  • Dayton Bar Association 1883
  • Super Lawyers
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