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Dayton, Ohio Probate and Business Law Blog

Americans without estate planning risk unwanted outcomes

Surveys consistently show that a majority of Americans, including in Ohio, do not have in place sufficient legal measures to take care of all eventualities in the case of incapacitation or death. Elderly persons over 65 are also vulnerable to elder law fraud and abuse at the hands of unscrupulous third parties. There are now platforms and programs that are designed to create a storage place online for one's estate planning and other important documents.

Online storage is a convenient tool for keeping all of one's financial matters and estate planning instruments in one place. This should not be done, however, without making sure that the executor and trustees are duly informed and provided with copies of the relevant documents. The copies can be accompanied by a letter of instructions. It is also important these days to inform the online provider of precisely what information and documents are to be released to one's trustees and personal representatives and under what circumstances.

Probate litigation over royalty payments is temporarily on hold

Estate disputes in Ohio and other states can involve the ongoing responsibilities of an estate's executor to the decedent's family. The most famous estate dispute involving an entertainer in recent years has been the dispute that arose over Prince's death without a will, leaving even the identity of all his heirs in doubt. However, disputes and probate litigation can arise when the artist dies with a will, as shown in the estate of famous blues musician Muddy Waters.

Waters died back in 1983. His manager, Scott Cameron, was the executor of his estate. In that capacity, he was responsible for sending royalty payments to Waters' family members. Cameron himself died in 2015. The family members successfully petitioned to reopen the estate when they allegedly discovered irregularities in the royalty payments they received.

3 examples of undue influence

Undue influence is widespread in both contract law and estate planning. It refers to the act of influencing parties to make certain decisions that go against their best interest. The elderly are common victims of undue influence.

This act tends to rear its head when it comes to creating wills. Family members may influence someone who is not of sound mind to alter a will. Accusations of undue influence can tear apart families, but it is vital for all parties to remain cognizant of it as a possibility to avoid any hardships after a loved one's death. Here are some of the most common ways undue influence manifests itself. 

Failure of proper estate planning can lead to costly mistakes

Ohio and other states have over 50 percent of their adult residents without wills or living trusts. When a person dies intestate, i.e., without a will, it can be a major mistake and a serious burden on the deceased person's heirs. Without all necessary mechanisms being put in place by good estate planning, family members may incur significant expenses in setting up all the processes necessary to finalize the estate and distribute the assets.

Dying intestate may give relatives who are not favored the right to come in and claim their share of an estate under the applicable intestate laws. Having proper estate planning also allows for appointing persons to handle one's health care decisions if one becomes incapacitated. It also allows for appointing a person to handle one's financial affairs through a durable power of attorney.

Estate planning can also provide for pet care after death

Making an estate plan that covers one's pets in Ohio is best accomplished through the guidance of an experienced estate planning attorney. The special circumstances of a pet bequest make it not allowed for inclusion in a will in some states. The estate planning solution of choice may be to create a revocable living trust and fund the pet's trust while the owner is still alive. This will assure funding, greater attention to the matter and likely a greater opportunity to discuss and prepare the terms in cooperation with the beneficiary.

The beneficiary is the caretaker named under the trust who will take care of the pet or pets on the death of the benefactor. It is always good to name an alternative beneficiary in this situation in case the first choice resigns or dies. Both the original and the alternate should receive detailed instructions from the benefactor. The instructions are not for inclusion in the trust or the will but can be included in a letter to the caretaker.

Incompetency disputes often generate probate litigation

Financial exploitation of the elderly is a steadily growing problem in Ohio and nationwide. This often arises when an elderly person becomes incompetent to handle his or her own affairs. Where preparations have been made in advance, a relative is chosen to take care of those affairs through a duly executed power of attorney. On occasion, the agent under the power of attorney may negligently or intentionally dissipate the elderly relative's funds.  When that happens, the situation may become prime fodder to be fought out as probate litigation in the county probate court.

In that situation, other family members may go into the probate court and file a petition to have a guardian appointed by the court. Generally, the power of attorney is popular tool to avoid the expensive court-controlled guardianship procedures. However, when disputes arise about that person's alleged breach of fiduciary duties by carelessness or intentional behavior, the court has authority to determine the outcome. 

Probate litigation: Jury awards $8 billion in punitive damages

In Ohio as in other states, heirs of an estate may bring probate litigation to challenge management of the estate that has led to improper financial losses for them. In a shocking verdict in another state, a jury awarded $8 billion in punitive damages to the estate and heirs of an American Airlines executive. The probate litigation award was entered against JPMorgan Chase & Co., the institution hired to manage the estate.

The case was decided in September but is currently being fought on appeal. The decedent was an American Airlines executive who had created a reservation system for the airline. He died without a will and with $19 million in assets. One of the complaints by the heirs was that the bank took several years to release the decedent's personal property, including 6,700 golf putters, 900 bottles of wine, jewelry, and fine art.

Start the estate planning process with some basic preparations

Estate planning in Ohio is an important task for every person, especially if they want to make it easier on their heirs after their death. The following is a list of things to do to get ready for the important meeting with an estate planning attorney to get the process started. Once one gets that first meeting accomplished, everything will go smoothly thereafter because one's legal needs will be satisfied by an experienced professional.

A list of all assets is usually the first thing to prepare. This includes the house, other real estate, investments, retirement accounts, life insurance policies, cars, valuable art and other personal items, and so on. Copies of policies and accounts, along with deeds, mortgages, and other indicia of ownership should be made and put in a folder to take to the first meeting. Don't forget to include all debts, significant loans, credit cards and the like.

3 common mistakes to avoid in estate planning

Everyone in the Dayton area can benefit from estate planning. However, if you are a high-net-worth individual, it is crucial to ensure that the assets you worked so hard to accumulate are secure for your loved ones. A well-executed estate plan can provide peace of mind. 

In order to ensure the proper execution of your final wishes, you should avoid common mistakes such as the following. 

Business law attorney can guide a startup in the right direction

Startup businesses are prevalent in Ohio and nationwide.  One model that some of them try to emulate is that of wildly successful Uber, the digital rideshare company. However, the right combination of factors must be present and sometimes the owner/founder of the company may make fatal mistakes that are antithetical to business success. It can help to have access to an experienced business law attorney as the company moves forward.

The Uber model in general transfers an established business activity to the digital world, making it more convenient and giving more options than the traditional service or product. That was the thinking in 2013 behind the creation of a startup called Shyp that offered to ship packages through orders placed by customers on their smartphones. The company presented itself as a more convenient alternative to the post office.

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