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What Factors Set The Stage For Probate To Occur?

In order for probate to occur, there must be assets that do not go by operation of law or by contract. For example, life insurance policies generally have a designated beneficiary; assuming that beneficiary is alive, the assets of that policy would go to that beneficiary as opposed to through the probate process. If the beneficiary of a life insurance policy is deceased, and if there was no contingent beneficiary listed on the policy, then the assets of the policy would likely be added as an asset to the estate; the same is true for IRAs, annuities, and other types of retirement programs.

If there is someone listed as a pay on death (POD) beneficiary on a checking or savings account, then that individual would receive the assets from that account after providing proof of the account owner’s death. If an account has joint survivorship, then the surviving individual would receive all of the assets within that account upon the death of the other individual listed on that account.

If a vehicle has two names on the title, then it would go to the person listed as a survivor. However, if the car is not mentioned in the will, the surviving spouse could obtain that car and avoid the probate process by having the local bureau of motor vehicles sign it over to them. The same process can be done with real estate that is jointly owned or has a transfer on death affidavit. If paperwork was not filed with the audit recorder’s office indicating that the other person that was on the deed has died, then a death certificate showing that they died must be filed. In addition, the survivor would have to sign an affidavit indicating that they are in fact the survivor; at that point, the property would be transferred over and become a part of the new deed.

If a person has a piece of real estate, a vehicle, stocks, savings accounts, or any other type of asset that’s only in their name, then it will have to go through the probate process. Setting up joint survivorship accounts, creating transfer on death accounts, and formulating deeds in advance that will transfer to the survivor can help people save a lot of money after the death of the individual who owned the assets.

Many people are unaware that there is something called a tort recovery in Ohio. If a person is on Medicaid and they have a bill that Medicaid paid, everyone would be able to go against the state to get their money, including Medicaid or the government. Several years ago, the law was changed so that Medicaid could use what’s called a super lien to go after any assets an individual has. I once handled a case in which a woman died with a Medicaid bill of over $100,000. In this particular case, there was $90,000 in her bank account, which was left to her daughter. The daughter went to the bank and advised them that as an heir, it was her money and that she could do with it whatever she wanted; if a Medicaid lien had not been implemented, this would have been true. Having been unaware of the law, however, the bank teller gave her the $90,000. The daughter then distributed $30,000 to her brother, $30,000 to her sister, and kept $30,000 for herself.

Several months later, the daughter received a letter from the Ohio Attorney General informing her that her mother still owed $100,000; since the $90,000 was left to her, she was responsible for paying it back in its entirety. Luckily, I was able to work out a deal where the attorney general allowed her to pay back what money she had left and to go after the brother and sister separately. These types of situations can be very dangerous. If someone inherits assets, they need to speak with an attorney about what to do with those assets in order to avoid finding themselves in dire financial straits.

For more information on Factors That Trigger Probate In Ohio, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (937) 247-6447 today.

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