Month: May 2026
Probate of Estates Attorney
During my years in practice I have assisted executors and administrators in handling hundreds of estates. This page contains answers to some of the questions most frequently asked by administrators and executors. Naturally you are encouraged to call me with any questions you have about estate administration.
Probate is the legal process by which the affairs of the deceased are finalized. Very simply stated the process involves (1) accounting for all that the decedent owned and owed (2) paying the bills, taxes (if any) and administrative expenses (your fee, my fee and court costs) and (3) distributing the remainder (if any) per the will or law. The court and state law will provide time limits by which certain things are to be done.
The executor or administrator is the representative of the estate. As such he or she is a fiduciary and must carry out the duties of his office with the utmost good faith. Those duties essentially are to pay all of the just debts of the estate and to account for and collect if necessary all of the assets of the estate.
State law provides guidance on the order in which bill are to be paid. This can be important where the estate does not have enough money to pay all the bills. Claims against the estate must be presented within six months of the date of death. The executor or administrator must open a separate estate checking account from which to pay the bills. He or she may refuse to pay any bill presented that he or she believes is unjust. I will be glad to help you make that determination. In fact, that’s part of what I am paid to do.
The executor or administrator must account for all of the decedent’s assets, no matter where they are. Values must be placed on the assets as of the date of death. The executor or administrator will value those items which do not require special appraisal skills. Assets such as land and jewelry will have to be appraised by a qualified person. Bills are to be paid from estate assets. If the assets exceed the bills a distribution to the proper survivors will be made. If the bills exceed the assets, certain debts or parts of them will not be paid. If it appears that there will be insufficient assets to pay the bills, I will help assure that only proper payments are made and in the proper order. The first inventory of assets is to be filed within thirty (30) days of the appointment of the executor or administrator. We can get an extension for good cause. Obviously, the debts will be listed later. If the executor or administrator personally has a claim against the estate he or she must present it to the Court within six months of appointment.
The executor or administrator, as representative of the estate, will be named in any lawsuit filed in connection with this estate. However, the executor or administrator has no personal liability simply because he or she is so named.
The executor or administrator’s compensation is controlled by state law. Basically he or she will receive for services 4% of the first $100,000.00 of estate assets, then 3% of the next $300,000 and then 2% of the balance. The executor or administrator may decline payment if he or she so chooses. The executor or administrator must pay income tax on the fee paid for services to the estate. There is no income tax on inherited money or property.
My compensation is calculated in accordance with a formula provided to lawyers by the Probate Court. Fulton, Williams, Henry and Defiance counties use the same formula, a formula that provides for a decreasing percentage as the estate gets larger. The fees are 10% of the first $5000, 5% of the next $15,000, 3 1/2% of the next $30,000, 3% of the next $50,000, 2 1/2% of the next $80,000, and 2% of the amount that exceeds $180,000. That formula yields a figure for compensation in the typical estate. Where I am required to render extra ordinary services, further fees may be approved by the Court. The Court must approve my fees and this approval is given where the fees are appropriate for the services performed. It is my duty to act as your representative, prepare all of the forms required by the Court, determine whether any taxes are due, and handle legal and tax matters relating to the estate. As a loose guideline my fee for serving as representative of the executor or administrator will be about the same as his or her fee in a typical estate. Where I render extraordinary service my fee will be larger.
It is impossible to say how long it will take to close the estate. The executor or administrator and I must both work diligently toward that end but any number of things can arise that can extend the time needed to close the estate.
Some important deadlines in estate administration are that the inventory is to be filed within thirty (30) days after date of appointment of fiduciary; Ohio no longer has an Inheritance Tax for people who passed away after January 1, 2013; an accounting of income and expenses of the estate is due in nine (9) months after appointment of the fiduciary; and creditors have six months in which to turn bills into the estate.
If you choose me to represent you in your capacity as executor or administrator I will do all I can to make your job easier.
Wills Attorney
It is said that anyone can make his or her own Will. The scary thing about that is that it is true. A person can make his own Will, but he may not have the skill to do it right. Further, the Will only passes that property that does not pass some other way such a real estate or bank accounts that are owned jointly with a right of survivorship or with a POD (Payable on Death) directive. Life insurance also passes outside the Will. In my own family my grandfather had a Will that left his estate in thirds to his two daughters and their step-mother. The step-mother got everything because everything my grandfather had was held in joint ownership with my grandmother with a right of survivorship. When my grandmother died everything went to her brother (she never had children). My grandfather’s intent was defeated by poor advice from his attorney about what property was going to be passed by his Will.
There are several important reasons for preparing a Will:
- Appoint an executor and successor executor.
- Appoint guardians and successor guardians for minor children.
- Appoint a guardian to manage funds and property for minor children.
- Direct property distribution.
- Provide for a trust or life estate.
- Provide a waiver of the executor posting bond.
- Designate order of death in the event of simultaneous death of parties.
- Provide for distribution of property in case of potential disclaimer by a beneficiary under the Will.
- Designate the powers granted to the executor.
- Provide clauses to reduce risk of Will contests.
If there is no Will, the courts will appoint an administrator to administer the estate and distribute property according to the Statute of Descent and Distribution. This law provides a Will for people who don’t have one. Often the provisions of the law are not what the deceased would have wanted. Making a Will is sound business and should not be neglected. Anyone who owns property, real or personal, even though the amount may seem small, should have a Will. The individual making the Will can name the executor of his or her choice, rather than having the court name an administrator. Your legal advisor can help you with this important task.
Your Will should be reviewed periodically, as children are born and grow up, as you desire to change beneficiaries, or as your property situation changes. You may change your Will as often as you need to and the changes Will be valid unless you become insane or of unsound mind or are the under undue influence of someone to change the Will in a manner they want. The Will may be rewritten, or an amendment called a codicil may be attached at the end of a Will. Today, with attorneys commonly storing Wills on a computer, it is often easier to re-execute an entirely new Will than to make changes by codicil. If a codicil is used, it must be executed with the same formalities as the Will. The witnesses do not have to be the same persons who witnessed the previously drawn Will. Every Will should state at the outset that it is the last Will of the testator. Never mark up a Will; you may invalidate it.
The law protects the legal share of your surviving spouse. If the Will leaves the surviving spouse less than the share of the property to which he or she would have been entitled had there been no Will, he or she has the privilege of choosing whether to accept the Will’s provisions or to take the share allotted by law. No such protection is accorded to children even if disinherited in the Will. Even though you have the right to leave your assets any way you wish, it is often prudent to take other actions to protect against Will contest actions by disgruntled heirs. For example, you can file your Will for approval by the probate court prior to your death. If approved by the judge, it cannot be contested after your death. It is recommended that every person have a Will, even if they think they have all property owned in non-probate form. Something may have been missed, or there could be claims by the estate, like accidental death, which cause probate property.
Statute of Descent and Distribution
There are laws in Ohio that direct how the property of a deceased person who dies without a valid Will is to be distributed. If a person without a valid Will dies with a spouse and no children, the spouse receives all the property. If a person dies and there is no surviving spouse, the property goes to the children or their lineal descendants. These scenarios and all others contemplated by the law are shown below.
Section 2105.06. Statute of descent and distribution.
When a person dies intestate having title or right to any personal property, or to any real estate or inheritance, in this state, the personal property shall be distributed, and the real estate or inheritance shall descend and pass in parcenary, except as otherwise provided by law, in the following course:
- (A) If there is no surviving spouse, to the children of the intestate or their lineal descendants, per stirpes;
- (B) If there is a spouse and one or more children of the decedent or their lineal descendants surviving, and all of the decedent’s children who survive or have lineal descendants surviving also are children of the surviving spouse, then the whole to the surviving spouse;
- (C) If there is a spouse and one child of the decedent or the child’s lineal descendants surviving and the surviving spouse is not the natural or adoptive parent of the decedent’s child, the first twenty thousand dollars plus one-half of the balance of the intestate estate to the spouse and the remainder to the child or the child’s lineal descendants, per stirpes;
- (D) If there is a spouse and more than one child or their lineal descendants surviving, the first sixty thousand dollars if the spouse is the natural or adoptive parent of one, but not all, of the children, or the first twenty thousand dollars if the spouse is the natural or adoptive parent of none of the children, plus one-third of the balance of the intestate estate to the spouse and the remainder to the children equally, or to the lineal descendants of any deceased child, per stirpes;
- (E) If there are no children or their lineal descendants, then the whole to the surviving spouse;
- (F) If there is no spouse and no children or their lineal descendants, to the parents of the intestate equally, or to the surviving parent;
- (G) If there is no spouse, no children or their lineal descendants, and no parent surviving, to the brothers and sisters, whether of the whole or of the half blood of the intestate, or their lineal descendants, per stirpes;
- (H) If there are no brothers or sisters or their lineal descendants, one-half to the paternal grandparents of the intestate equally, or to the survivor of them, and one-half to the maternal grandparents of the intestate equally, or to the survivor of them;
- (I) If there is no paternal grandparent or no maternal grandparent, one-half to the lineal descendants of the deceased grandparents, per stirpes; if there are no such lineal descendants, then to the surviving grandparents or their lineal descendants, per stirpes; if there are no surviving grandparents or their lineal descendants, then to the next of kin of the intestate, provided there shall be no representation among such next of kin;
- (J) If there are no next of kin, to stepchildren or their lineal descendants, per stirpes;
- (K) If there are no stepchildren or their lineal descendants, escheat to the state.
Foreclosure Defense Attorney
Filing a bankruptcy will stop a foreclosure action for the period of time the bankruptcy is pending and will often afford you the time you need to get your payments caught up and save your home. The following is general information about how foreclosures work in Ohio. Bear in mind the timeline will be delayed by two or three months if you file bankruptcy.
The foreclosure begins when the bank files a foreclosure complaint against you and the county treasurer and anyone else it thinks has an interest in your house. Once you are served with the complaint you will have 28 days to answer. You can extend that 28 days by asking for another 28 days to retain counsel and have him review your records and the mortgage itself. If you don’t file an answer within the 56 days the bank will ask for a default judgment as to you. After they have the default judgment is granted the bank will have to advertise the home for sale by sheriff for a month. This process actually takes about two months as the newspaper has to certify that it advertised the sale for a month and the court will want to be sure everything is in order before the sale proceeds. Then the sale takes place, typically in the courthouse. If the sale brings more than 2/3 of the appraised value of the house the bank will ask for confirmation of the sale. If the sale does not bring 2/3 of the appraised value the bank will have to advertise it for sale again and the second time the home can sell for any price. After the sale the bank will have to ask for confirmation of the sale. You can redeem your house by making all the back payments and paying the bank’s foreclosure expenses right up until the time the sale is confirmed.
From the time the foreclosure is filed you can stay in the house for the next 4 or 5 months minimum whether you make any payments or not. If you want to save the house you must start saving toward catching everything up right away. Typically the bank will not accept any payments unless you have the whole amount you need to redeem. But you should save your money anyway because you will need it to get into another home if you can’t save your present house.
Dog Bites Attorney
Dog bites are a very common and sometimes very serious injury. Each year about 5 million people in the United States are bitten by dogs. About 1000 per day are treated in emergency rooms for dog bites. Losses resulting from dog bites amount to over a billion dollars, and homeowner’s insurance policies pay about $350 million each year in damages for dog bites.
In Ohio, dog owners are strictly liable for the injuries their dogs cause. It is not necessary to prove that the dog bit before or that the dog was not properly trained or handled.
If you are bitten by a dog you should make every effort to identify the dog and its owner. Testing the dog can eliminate the need for you to get rabies shots. The owner would be responsible for the cost of your medical treatment and other losses. If the dog’s owner has homeowner’s insurance your losses would be covered under that insurance. Some renter’s policies also provide coverage when the insured’s dog bites. Ohio requires the owners of certain breeds of dogs like pit bulls to have insurance on their dog.
Be sure to get the names and contact information for anyone who witnessed the dog biting you. Also, take pictures of your injuries before they heal, and keep a diary of how the dog bite affects you and your daily routines.
Dog bite victims are entitled to recover their medical expenses, wages lost if they were unable to work, mileage expenses, pain and suffering, and for permanent scarring or disfigurement. If you are the victim of a dog bite, call me to discuss your case.
Divorce, Dissolution and Legal Separation
In Ohio, there are three basic actions that involve the termination or alteration of a legal marriage: (1) divorce, (2) dissolution and (3) legal separation.
DIVORCE A “divorce” action is, in essence, a lawsuit – a lawsuit where one spouse sues the other spouse seeking to end the marriage, divide up the marital property and marital debts, and determine child support and child custody issues. The party seeking the divorce must prove grounds for the divorce. Where the parties can reach an agreement on all issues the court must decide in a divorce the parties can instead file for dissolution of marriage. A dissolution is less costly than a divorce and tends to be less damaging to the future relationship of the parties. It is important to remember that a divorce or dissolution only ends the relationship of husband and wife. The parties continue to be parents. It is important that the father and mother have a good working relationship because they will be involved with each other for many years to come because of the children. They will both want to attend school activities, graduations, weddings and so on and it is important that they get through the termination of their marriage without causing further ill feelings that will make it hard for them to cooperate in the future.
DISSOLUTION A “dissolution” is not like a typical lawsuit that begins with a complaint and answer. It is nevertheless a legal proceeding in the domestic relations court – a legal proceeding which seeks all of the same things as a divorce. In a dissolution, the husband and wife file a joint “petition” for dissolution together in the same document. Attached to this “petition for dissolution” is another document called a “separation agreement.” A separation agreement is a contract between the husband and wife that settles all of the issues relating to the termination of the marriage (the division of the marital debts and assets, and the allocation of parental rights regarding offspring). When the husband and the wife file the petition for dissolution (with the attached separation agreement), the domestic relations court sets up a dissolution hearing in about 30 to 60 days. At that hearing, the domestic relations judge or a magistrate will ask both the husband and the wife if they still want to end their marriage, and will further ask if they both want the termination of their marriage to be on the terms set out in the separation agreement they attached to the petition for dissolution. If the answer to these questions is yes, the court will grant them a dissolution and will adopt the separation agreement as a court order in the decree.
LEGAL SEPARATION A “legal separation” is similar to an action for divorce except the spouse who files for legal separation action does not seek the termination of the marriage. Instead, that spouse seeks to live completely separate and apart from the other spouse, seeks to divide up the marital debts and property, often seeks spousal support, custody of the children and child support – all without actually ending the marriage. This is frequently done so that one spouse can continue to be covered under the medical insurance plan of the other spouse or for religious reasons where one or both of the parties do not believe in divorce. A legal separation can be converted into a divorce action if one of the parties files a motion requesting such a conversion.
LEGAL FEES The costs of these actions can vary greatly. The more you can agree on, the less you will pay in lawyer fees. More fighting means more legal fees. The more things you can agree on the less cost and stress you will have, so every effort should be made to reach an agreement on all or as many issues as you can.
Bankruptcy Attorney
Here’s what you need to know about the Bankruptcy Abuse and Consumer Protection Act passed in 2005:
You must undergo credit counseling
Before being allowed to file either Chapter 7 liquidation or a Chapter 13 repayment plan, debtors must prove they’ve attended, within the six months before filing, a credit-counseling program approved by the Department of Justice.
Before your bankruptcy case is closed, you’ll have to go through another round of education — this time intended to teach you financial-management skills. You’ll find the DOJ-approved list of debtor-education providers here. Failing to complete this education will result in your case being dismissed.
You need these documents — or else
Failing to provide certain documents within 45 days of your filing (with a possible 45-day extension) will cause your case to be dismissed automatically. In addition to the paperwork that used to be required — lists of creditors, assets, liabilities, income and expenses — you must also provide:
- Your credit-counseling certificate (see above)
- Your pay stubs for the previous 6 months (if any)
- Your most-recent tax return, plus any return filed while your case is pending and any returns filed for prior years that hadn’t been filed when your case began
- A photo ID and Social Security Card
Exception: The DOJ said it won’t enforce this rule against filers who can’t produce the documents because of natural disaster.
You can’t make too much money
The means test was ostensibly designed to prevent people who could afford to pay some of their debts from erasing them in a Chapter 7 liquidation filing. Instead, these folks would be shunted into a Chapter 13 repayment plan.
But only the filers who make more than the median income for their state (you can find the figures on the Department of Justice website) will be subjected to the means test. Your income is determined by taking your average monthly take for the previous six months, then multiplying that figure by 12.
Most filers, bankruptcy experts agree, make less than the medians, which range from the mid $40 thousands for a family of four in New Mexico to about $90,000 for the same size family in New Jersey. If you make less, you won’t face the means test and will be allowed to continue with your Chapter 7 filing.
If your income is above the median, more number crunching is in store. Certain “allowed expenses” for housing, utilities, food, clothing and other items are deducted from your income. What you actually spend on most of these items is irrelevant; what matters is what the IRS has set as a standard for these items. You can find more details here.
You’re also allowed to deduct a variety of other “necessary expenses,” including:
- Taxes, but not property or sales taxes
- Mandatory payroll deductions, but not 401(k) contributions
- Term life, dental, vision, health and disability insurance premiums, but not auto, liability, homeowners, renters or whole life premiums
- Child care, but not primary or secondary school tuition beyond $125 month per child
- Business expenses
- Charitable contributions
If you have less than $100 a month left over after all the allowed deductions, you’re allowed to continue with your Chapter 7 filing. If you have more than $166.66, Chapter 13 is a given.
If the amount falls between $100 and $166.66, yet another calculation is made. Is this leftover income enough to repay at least 25% of the debt you would otherwise erase? If so, you’re generally shunted into a repayment plan. If not, you can continue with your Chapter 7.
Exception: Debtors can avoid Chapter 13 by arguing they have “special circumstances.” While attorneys don’t expect many to be successful, the DOJ has said that the courts can consider income loss, increased expenses or other difficulties arising from natural disasters as special circumstances that warrant allowing debtors to remain in Chapter 7.
Repayment lasts longer
If you do wind up in a Chapter 13 repayment plan, you’ll have to stay in it longer to get relief.
Under the old law, a debtor who hewed to a Chapter 13 repayment plan for three years could have his or her remaining debt erased. Under the new law, repayment plans must last for five years if the borrower’s income is over the state’s median. Also, the borrower must file new statements of income and expenses each year.
No relief for an upside-down car loan
Under previous bankruptcy law, people who owed more on their cars than the vehicles were worth could get the excess debt erased in Chapter 13. They could keep the cars if they could continue making the payments, and the total amount they owed was reduced to the fair market value of the car.
This “cram down” or “lien stripping” will no longer be allowed if the auto was purchased within 910 days (about 2.5 years) of filing.
More debts are inerasable
Some unsecured debts, like recent taxes and child support, typically couldn’t be discharged or erased under previous bankruptcy law. Now more types of loans come under that restriction, including:
- Student loans. Prior to the new law, student loans couldn’t be erased if the money was lent by a not-for-profit or in a government-sponsored loan program, unless the debtor could show undue hardship. Now, that protection has been expanded to private and for-profit lenders.
- Cash advances. Under the prior law, debtors had to pay back credit-card cash advances of more than $1,225 taken out 60 days or less before a filing. The new law reduces the amount to $750 and includes advances made within 70 days of a filing.
- Fraudulent credit-card use. If the court decides you racked up credit-card debt knowing you were going to file for bankruptcy, the amount you owe won’t be discharged in Chapter 7 or Chapter 13. It used to be that a creditor had to successfully object to the charges to prevent a Chapter 7 discharge, but even then debt could be erased in Chapter 13 if the debtor completed his or her plan.
In addition, the “super discharge” available in Chapter 13 has been reduced. This discharge in the past effectively wiped out most remaining debt after debtors completed their repayment plans. Now more types of debt will survive the Chapter 13, including debts for trust-fund taxes, domestic support payments, student loans, drunken-driving liabilities and some types of court-ordered damages.
You can’t refile for 8 years
In the past, a debtor could file another Chapter 7 case six years after receiving a discharge from his or her last Chapter 7 case. The waiting period has been increased to eight years. There are also more restrictions on how often debtors can file Chapter 13 cases, which in the past were often used fraudulently to stop or slow evictions or foreclosures even when the borrower had no intention of following through with the case.
Automobile Accidents Attorney
Every year hundreds of thousands of people are injured or killed in automobile accidents. It is important that injured people have good legal representation because this area of the law is very complex. I have handled hundreds of motor vehicle accidents cases over the years, and I will be glad to put my experience to work for you.
Auto accident cases are complex because there are so many issues. One of first issues is determining who caused the accident. Often the answer is clear and can be determined from reviewing the accident report and witness statements. Other times is not clear at all and accident reconstruction experts are needed to evaluate the evidence and determine things like speed, direction, visibility, reaction time and so on in order to form an opinion about how the accident occurred.
Often issues arise about what injuries were caused by the accident and what injuries were pre-existing. Questions about the permanence of an injury or the extent to which that injury has caused disability arise.
Another complex area involves coverage issues. If the at-fault driver has sufficient coverage and his liability is clear this is not a problem. But, Ohio only requires drivers to carry $12,500 of coverage for any individual injured in an accident, and $25,000 of coverage for all damages caused by an accident. Many drivers only have the state minimum amount of insurance (many drivers have no insurance at all). $25,000 is not enough to cover the average new car these days, let alone the injuries suffered by the people in the accident. If you face this problem you will need an attorney experienced in dealing with uninsured and underinsured motorist claims.
Valuing a case is another area where there is no substitute for experience. Every case is different and it takes a great deal of research and experience to properly evaluate an injury claim. Beware of any attorney who will give you an opinion of the value of your case without seeing all the medical records, the accident report and all other pertinent information first. He is probably giving you an unrealistic number just to get your case. That will cause you problems later in the case.
Preparation is the key to getting a good settlement or winning a case at trial. That is why I prepare every auto accident case thoroughly. I want your business. I also want you to be so pleased with my representation that you recommend me to others. And I never want it to be said that I wasn’t properly prepared. Those thoughts never leave my mind when I am preparing an auto accident case. Proper preparation and documentation causes cases to settle earlier and for more money. That is my goal in every case. Contact me for a free consultation about your case.