The laws governing the administration of a decedent’s estate in the State of Ohio provide for the collection of probate assets, payment of debts and expenses, and distribution to the beneficiaries according to the terms of the decedent’s Last Will and Testament, or if the decedent died without a Last Will and Testament, in accordance with Ohio law.

Declaration of insolvency

The Executor or Administrator (“Fiduciary”) of the decedent’s estate may ask Probate Court to declare the estate insolvent if the debts and administration expenses of the estate exceed the total value of the assets.  If there are not sufficient assets in a decedent’s estate to pay all of the debts and expenses, Ohio provides a way to pay creditors depending on the “class” of the creditor defined below and the amount due.

Presentation of claims

Under Ohio law, all claims must be presented to the Fiduciary within six (6) months of the date of death of the decedent. After the expiration of this claim period, if the estate is deemed to be insolvent, the Fiduciary would report the insolvency to Probate Court, and provide a complete list of all debts and expenses, with the amount due for each.  A hearing would be scheduled, with notice of the hearing served upon the surviving spouse of the decedent (if any), all persons having an interest in the estate as devisees, legatees, heirs, and distributees, and all creditors.

At the hearing, Probate Court would review the classification of the claims as provided by the Fiduciary, and if approved, would allow payment of the claims in accordance with Ohio Revised Code.

Classes of creditors and priorities

The class of a creditor is defined in Ohio Revised Code, which establishes ten (10) classes of claims (debts) and priorities, as follows:

  • Class 1 – Costs and Expenses of Administration
  • Class 2 – Funeral and Cemetery Expenses.  This class provides up to $4,000 for funeral expenses and up to $3,000 for burial and cemetery expenses.
  • Class 3 – Family Allowance of $40,000.
  • Class 4 – Debts Entitled to a Preference Under the Laws of the United States.
  • Class 5 – Expenses of the Last Sickness of the Decedent.
  • Class 6 – Additional Funeral Expenses.  If the total funeral expenses exceed the sum of $4,000 in class 2 above, then the funeral director can receive up to $2,000 more toward the decedent’s funeral bill in class 6.
  • Class 7 – Nursing Home Expenses.
  • Class 8 – Obligations to the State of Ohio.
  • Class 9 – Debts for Manual Labor.
  • Class 10 – Other Debts.

In the state of Ohio, the law is very clear that payments must be made in the specific order listed above.  No payments may be made to creditors of one class until all of those of the preceding class are fully paid.  If the assets are insufficient to pay all of the claims of one class, then the creditors of that class must be paid proportionately.

Once the approved claims and expenses are paid, the Fiduciary would report the receipts and disbursements to Probate Court for approval.  Upon approval by Probate Court, the estate would be closed.


In certain estates where there are assets with value, it may make sense to proceed with an insolvent estate, as the fee for the Fiduciary of the estate is a Class 1 claim.  Further, if there are sufficient assets to pay the Class 1 and Class 2 claims in full, the family allowance, as a Class 3 claim, would be paid to the extent of assets.  Therefore, the decedent’s family could possibly benefit from this approach.


For help with your estate planning or probate matter, contact Isaac Heintz (513-943-6654) or Tammy Wilson (513-943-6663)


A general durable Power of Attorney granted by a person (“Principal”) to a designated attorney-in-fact (“Agent”) provides full power, authority and discretion to do all things required or permitted to be done in carrying out the purposes for which the Power of Attorney is granted as fully as the Principal could do if personally present (unless it is a Limited Power of Attorney granting specific limited powers to the Agent).

It is very important for the Principal to appoint an Agent that is trustworthy and who the Principal believes will fulfill his or her fiduciary obligations to the Principal.  No matter how selective a Principal may be in appointing the Agent, there is always the possibility of the Agent abusing his or her fiduciary obligations.

  1. Theft and Improper Asset Transfers.

There is no question that an Agent acting under a durable Power of Attorney has a fiduciary obligation to the Principal, which includes both the duty to act in the Principal’s best interest, and the duty not to use the relationship improperly for the Agent’s advantage.  If an Agent transfers the Principal’s funds in a way that the Principal would not have wanted, the transfer seems abusive.  Such a transaction may even rise to the level of theft.  Many times there are cases where Agents use durable Powers of Attorney to extract money or assets from their Principals.  If the Agent is not a family member or a close friend, it seems clear that transfers of assets to the Agent are abusive.

Most people name family members as their Agents.  Determining whether a transfer is abusive becomes much more difficult in a family context.  A family member Agent who transfers funds or other assets to himself or herself may believe that the Principal would have wanted the Agent to make the transfer.

Therefore, it is important for the Principal to discuss his or her wishes with the Agent regarding transfers, and to make sure that the Power of Attorney authorizes the Agent to make any desired transfers.  If the Principal wishes the Agent to have the power to make only gifts that would qualify for the Federal gift tax annual exclusion, this limitation should be included as a provision in the Power of Attorney and also discuss it with the Agent.

Further, if a Principal does not want to grant the Agent authority to transfer assets, it is imperative that a provision be included in the general durable Power of Attorney restricting the Agent from making such transfers.

  1. Interference With Principal’s Estate Plan.

An Agent may be faced with dealing with property that has been specifically disposed of in the Principal’s estate plan.  This type of interference ranges from an act by an Agent performed with the specific intent to deprive a specific beneficiary named in the Principal’s estate plan to receive a gift, to a transfer made without thought of the Principal’s estate plan.

  1. Remedies for Abuse.

Attorneys are often asked what remedies are available for abusive acts by Agents appointed in a durable Power of Attorney.  In most cases, courts seem to agree that an Agent under a durable Power of Attorney is governed by some fiduciary standard.

It is possible that an improper transfer could be prosecuted as theft, and a court could order restitution to the Principal.  Also, improperly transferred funds could be recovered through a civil lawsuit for breach of fiduciary duty.  The funds may not be recoverable because the abuse cannot be proven, or because the Agent has dissipated the funds.


Attorney Isaac T. Heintz

On multiple occasions, Finney Law Firm has been approached by a beneficiary of a trust when the beneficiary is concerned with the administration of the trust by the trustee.  In these types of situations, our firm has helped the beneficiary pursue and protect the beneficiary’s rights.

Although there are other rights, below you will find a summary of some of the statutory rights of a trust beneficiary.

Under current Ohio law, a trustee shall, within sixty (60) days after accepting its duties as trustee, notify the current beneficiaries of a trust of the trustee’s acceptance of the trust, together with the trustee’s name, address, and telephone number.

Further, within sixty (60) days after the date the trustee acquires knowledge of the creation of an irrevocable trust, or the date the trustee acquires knowledge that a formerly revocable trust has become irrevocable, the trustee must notify the current beneficiaries of the existence of the trust, the identity of the settlor/grantor, the right to request a copy of the trust instrument, and the right to receive a trustee’s report as defined below.

Upon the request of a beneficiary, the trustee shall provide to the beneficiary a copy of the trust document.  Unless the beneficiary specifically requests a copy of the entire trust document, the trustee may furnish to the beneficiary a copy of a redacted trust document that includes only those provision of the trust that are relevant to the beneficiary’s interest in the trust.  If the beneficiary requests a copy of the entire trust document after receiving a copy of the redacted portion, the trustee must furnish a copy of the entire trust document.

The trustee is also required to send a trust report at least annually and at the termination of the trust, to the current beneficiaries, and also to other beneficiaries who request it.  This is commonly known as an accounting.  The report shall detail the trust property, liabilities, receipts, and disbursements, including the source and amount of the trustee’s compensation, a listing of the trust assets and, if feasible, their respective market values.

Any beneficiary may waive the right to a trustee’s report or other information otherwise required to be furnished to a beneficiary. A beneficiary, with respect to future reports and other information, may withdraw a waiver previously given.

A trustee, in fulfilling its fiduciary obligations, must keep the current beneficiaries reasonably informed about the administration of the trust and of the material facts necessary for them to protect their interests.

Please note that the above rights are not a comprehensive list of the rights of a beneficiary of a trust.


For assistance with an Ohio trust or more generally Ohio estate planning and estate administration needs, contact Isaac T. Heintz (513-943-6654; Isaac@FinneyLawFirm.Com) or Eli Krafte-Jacobs (513-797-285; Eli@FinneyLawFirm.Com) of our transactional team.


Technology consumes the lives of most Americans.  In fact, humans create an estimated 2.5 quintillion bytes of data each day and an estimated 90 percent of all the world’s data was created in the last two years.[1]  In perspective, 2.5 quintillion bytes of data is equal to about 530 million songs or 90 continuous years of HD video.[2]  Holding power and control over digital assets is advantageous to the owner, but many jurisdictions do not have laws to effectively govern what happens to a deceased person’s digital assets.  Prior to April of this year, Ohio was one of those jurisdictions.

Ohio House Bill 432 (HB432) was signed into law by Governor Kasich at the end of 2016 and it became effective April 6, 2017.  This Bill, otherwise known as the Omnibus Probate Bill, made significant changes to estate administration in Ohio.  Chief among those changes was the adoption of the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA).  Under the original Uniform Fiduciary Access to Digital Assets Act (UFADAA), fiduciaries were authorized to manage digital property such as computer files, web domains, and virtual currency, but it restricted a fiduciary’s access to the substantive content of electronic communications (e.g., email messages, text messages, social media accounts, etc.).  However, HB432 and RUFADAA extended the reach of a fiduciary to include the power to manage a person’s substantive digital assets.

Rather than granting this power across the board, HB432 outlines the means through which an individual may grant such power to his or her fiduciary.  These means include: (1) online tools offered by a custodian or possessor of digital assets and through which an individual can select how their digital assets will be treated, (2) a will, trust, or power of attorney, and (3) the custodian’s terms of service.[3]  The foregoing means are listed in order of descending authority.  In other words, an online tool supersedes the terms of a will or trust, which supersedes the custodian’s terms of service, which supersedes the default RUFADAA rules.

As estate planning catches up with technology, it is important to understand how newly enacted legislation can affect your rights.  With Ohio’s recent adoption of RUFADAA, individuals now have greater control over what happens to their digital assets after death.  As is good practice with estate planning, individuals seeking to exert a measure of control over their digital assets after death should consult with an estate planning attorney.

[1] Bringing big data to the enterprise,, (last visited May 25, 2017).

[2] Mikal Khoso, How Much Data is Produced Every Day?, Ne. U.: Level (May 13, 2016),

[3] See generally, Ohio Rev. Code § 2137.03 (2017).

As we have grown, the vision of the Finney Law Firm is sharpening for our clients and the public: A broad array of services offered in one firm, each practice area delivered in a quality fashion.

At our core, we are a real estate firm, with experienced transactional attorneys, a title insurance company that insures residential and commercial titles, and commercial litigators who can address virtually every aspect of disputes relating to real estate: Eviction, foreclosure, title disputes, easement disputes, construction disputes and mechanics lien claims, as well as complex real estate litigation.

Beyond that, we offer quality estate planning and probate administration and our transactional team rounds our its services with corporate formation and development, including acquisitions, dispositions and financing.

Isaac T. Heintz, Kevin J. Hopper, and Eli Krafte-Jacobs, along with paralegals Tammy Wilson and Misty L. Winkler, and Richard P. Turner at the title company, lead our transitional team day in and day out.

Our litigators are well-known for our public interest practice — handing legislative and regulatory matters aggressively, confronting government officials who would illegally interfere with their life, their business and their fortune.  Three times we have ascended to the U.S. Supreme Court, and three times we won the relief we sought with 9-0 victories there.   We apply this same sophistication and vigor to commercial litigation, personal injury, wrongful death and medical malpractice matters.

Bradley M. Gibson, Stephen E. Imm, Julie M. Gugino, and Casey A. Taylor along with paralegal Brandy E. Fitch are our quality litigation team.

Finally, we are proud to recently have expanded our litigation services to include labor and employment law with experienced litigator Stephen Imm.

When a client asks “do you do that,” I am proud to respond “yes, and we do it well.  Let me introduce you to …..”

Let us know how we we can help with your business or personal opportunity or challenge.  It is with you in mind that we have assembled this team of quality practitioners.

We are excited to announce that Finney Law Firm attorneys Isaac T. Heintz and W.Z. “Dylan” Sizemore will present “Five Pillars of Success” to the Greater Cincinnati Home Builders Association on Wednesday, April 20th from 11:30 AM to 12:30 PM.

HBA members and non-members are invited, but non-members (“Future members”) must pay $25 to attend.

The seminar addresses the key steps that business owners should take in establishing and growing their businesses to maximize returns and minimize exposure to liabilities.  The presenters are knowledgeable and experienced business and real estate attorneys.

The Cincinnati Home Builders Association is a private organization of home builders and their vendors that is entrepreneurial and well-led.  They actively participate in civic matters of critical concern for the local economy and provide important educational opportunities for their members.  Finney Law Firm is proud to be a member.

A flyer with the details of the event is linked here. The location of the presentation is The Tile Shop, 3095 Disney Street Cincinnati, OH 45209.

Register online to attend this program. Reservations are required.




infographic of the 10 things Finney Law Firm can do for you

10 Things Finney Law Firm Can Do For You

Often times when people think of attorneys they think of lawsuits or criminal charges and as a result that is why they need an attorney. While attorneys are needed to help you deal with lawsuits and criminal matters that is not the end of the list of what an attorney can help you with. To help you get a better idea of how an attorney can help you I have compiled this list of 10 things that Finney Law Firm can do for you. While this list is by no means an all-inclusive list it is designed to show you areas where Finney Law Firm has the expertise to help you work through a matter and save you money or save you from legal headaches in the future.

1.  Real Estate Matters

In many states in the U.S. (Ohio and Kentucky are no exceptions) attorneys are involved in many of the steps of the real estate buying and selling transaction. Often times attorneys are involved behind the scenes in reviewing contracts, legal documents, preparing title opinions and more. In certain states attorney have more hands on involvement in that any closing involving real estate is done by an attorney or under their direct supervision.

Finney Law Firm attorneys can assist individual buyers and sellers in the buying and selling process for both residential and commercial properties. As a real estate buyer you can ask an attorney to look over your offer to purchase a home to make sure it represents your best interests. Sellers may also want to hire an attorney to review any purchase offers and explain to them the requirements they will be bound by if they accept that offer. Some land purchases involve more complicated matters like mineral rights, multiple pieces of land being sold in one package, or liens by having an attorney represent picture of seller disclosure statementyou gives you get extra protection by having the legal considerations addressed by someone trained in those matters.

2.  Business Planning

Are you planning on starting a new business, incorporating an existing business, or changing the corporate structure (i.e. going from an S Corporation to a C Corporation) of your current business? Many activities related to business planning should have an attorney involved in order to make sure everything is done properly. Changing your business status from a sole proprietor to a Limited Liability Company or a corporate form without doing the proper paperwork for taxes will leave you at risk with the federal and local tax authorities. While you may have unintentionally not filed some of the proper tax paperwork that will not stop any associated penalties. By working with a Finney Law Firm attorney you can be assured all your paperwork will be properly prepared and you will be fully informed as to what each document means to you in your business.

By working with an attorney to properly prepare your paperwork you have someone who is familiar with your business and will be ready, willing and able to help you should the need arise. While you can go hire an attorney at a moment’s notice to help out with legal issues, that attorney will not be as familiar with your business as one who has been working with you on an ongoing basis. For more information on the LLC form of a business see LLC see the article Why Do You Need An LLC.

3.  Family Planning/Estate Planning


Planning on getting married soon? Do you and your spouse have assets you want to keep separate in case of divorce? While the love and bliss of courtship lead you to think the relationship will last forever things and people do change. If you or your significant other own part of a family business, own your own business, have a large sum of assets from inheritance or from earnings then it is advisable to get a pre-nuptial agreement prior to getting married. A pre-nuptial agreement is a document that can protect assets for both of the people about to be married. Unless properly prepared by an picture of fighting couple for divorce and family lawattorney and taking into account all assets a pre-nuptial agreement may not be worth much in the event of divorce. Therefore pre-marital planning should involve an attorney and the couple about to be wed. In many cases it may be best for each person to have their own attorney look over the pre-nuptial agreement to represent each person’s best interests.


Now if you are married and have kids there are other considerations to take into account. Those considerations mostly revolve around making sure your children and/or spouse are taken care of in the event of your passing. This is where sitting down with an estate planning attorney comes into play. An estate planning attorney will sit down with you and review your assets and your goals for your assets in case of death. This could involve setting up trusts for your spouse and/or children, guardianship arrangements for minor children, living wills, health care power of attorneys and more.

Depending on the amount of assets you have to give to your family and how you want to distribute those assets a trust may be a better option for you. A trust not only preserves your assets for your children it can also make sure you children still get their inheritance in the event your spouse later remarries. Inheritance can get quite complicated so it is best to talk with an estate planning attorney to make sure your assets are distributed the way you want them to be. For more information on wills and guardianship see my article How a Will and Trust Factor Into Your Estate Planning.

4.  Legal Document/Contract Review

Have you been suddenly presented with a legal document with request for signature? Do you know what the document is meant to do and how you may be legally bound if you sign the document? If you don’t know what the language is saying or how it will impact if you sign it then by all means you should be speaking with an attorney to have them look over the document and explain to you what exactly is being asked of you. Common examples of legal documents you may be signing throughout your life include documents related to the purchase and sale of real estate, purchase or sale of a business, non-disclosure agreements for work or other purposes, waiver or release of liability paperwork, settlement documents and more.

Signing any legal document without having full understanding of what sort of obligations you may face is asking for trouble. While the language may not talk in dollars and cents terms you could end up owing plenty of money if you signed a legal document and then failed to do what was required of you under the terms of the document. An attorney will be able to review your legal document document for signatureand give you an opinion on what it is asking for and what risks you face in signing the document. Don’t sign just because the person giving it to you says it is ok, get another opinion before it is too late.

5.  Labor and Employment Law

Do you run a business where you are responsible for the hiring and firing of employees? Want to make sure any terminations or hiring are done correctly and there is minimal risk of you being sued for discrimination? Or maybe you are wanting to setup health plans or retirement plans for your employees and unsure of the way to go about setting up those plans?

If you answered yes to any of the above questions then you should be talking with a labor and employment law attorney who can prevent you from taking the wrong moves which end up costing you money and more. Having an effective attorney advocate at your side assures you that you can concentrate on working on your business while any legal issues are promptly dealt with for you.

6.  Bankruptcy

Unsure if you can manage paying off your debts? Afraid of losing your house because you are behind on payments? Worried that your debts are impacting your health due to the constant stress? Or maybe health related expenses have hurt you financially. All of the above situations can be resolved through filing for bankruptcy. You will not know if bankruptcy is suitable for your situation until you sit down and discuss your situation with a bankruptcy attorney and learn about what filing for bankruptcy means.

In bankruptcy you are asking a bankruptcy court to set aside your debts under Chapter 7 (not all debts may be discharged) or to reorganize your debts into a more manageable payment plan under Chapter 13. Determining which Chapter will work best for you is a decision to be made in conjunction with a bankruptcy attorney. picture of a wallet in a viceBusinesses as well as individuals are eligible to apply for bankruptcy when they are unable to pay their debts.

7.  Taxes, Taxes and more Taxes

Unaware of what taxes your need to pay for your business? Want to pay less to the Tax Man and let your family inherit more? Own a piece of property that you think you are paying too much taxes for? All of the above are matters that can be addressed by an experienced attorney at Finney Law Firm.

Business planning involves dealing with tax matters and understanding all the tax jurisdictions involved. Not only do you have to consider federal and state taxes but there are also the city, municipality, and possibly county taxes to take into account. Miss any payments to one of these tax collecting entities and your business will be at risk. By sitting down and discussing with an attorney what your business does and where it will be performing its business your attorney can better advise you as to what taxes you need to make sure are paid.

Property tax is another big issue for both residential and commercial land owners. Property tax collectors sometimes base their tax collection rates on the overall health of the real estate market in a region as opposed to your specific piece of land. Maybe you have change in situation that has lowered the value of your property but your property taxes still remain where they were before. An attorney will be able to look at your particular situation and then prepare the proper paperwork to request that your property valuation be looked at in order to get a possible downward adjustment in value thus reducing your property tax payment.

As mentioned in item 3 above a will can help you take care of your family in the event of your passing. Wills along with trusts can also shield your assets from estate taxes that can be charged to your estate. Also known as the “Death Tax”, this tax on your wealth can be minimized depending on the amount of wealth and how you deal with it now. As each individual has their own unique asset situation a consultation with an Estate Planning attorney will help you best decide how much of your assets get caught up in the “Death Tax”.

8.  Litigation

When faced with litigation the last thing you want to do is ignore any requests for information nor do you want to provide answers without the guidance of an attorney in order to save money on legal bills. The answers and the way you answer pre-litigation questions (depositions and/or interrogatories) can make or break a case for you. Therefore it is in your best interest to answer these questions with an attorney present so they can stop you from answering questions you should not be answering. By having an attorney represent you in litigation from the beginning you are bringing along a valuable partner who not only will have knowledge of your case but also have the skills to defend you in a court of law. If an attorney has to be brought in later to a litigation matter it will usually be the case that they will have to spend more time in order to become fully informed of the situation which will cost you more than if you had hired an attorney at the start.

Whether you are being sued for something your business did, something an employee of yours did or you are suing someone who injured you the attorneys at Finney Law Firm have a great depth of picture of gavelbackground and litigation experience to assist you in your litigation matter. Finney Law Firm has successfully litigated cases related to caregiver abuse of children, business transactions, personal injury cases, failure to disclose in residential and commercial real estate matters, contract disputes and more. Finney Law Firm has won a number of cases that have went before the U.S. Supreme Court.

9.  Personal Injury

If you have been injured by someone or someplace where the situation was preventable you may want to discuss your injuries with an attorney. Especially where you have suffered losses due to being unable to go to work, out of pocket medical bills, or other pain and suffering you may be able to be compensated for those losses. A lot of this depends on how the injury occurred and whether or not someone’s negligence leads to your injury. By talking with an attorney you get a better idea of where you stand if you do wish to seek recovery for your injuries.

10.  Criminal Matters

Are you being charged with a crime? Whether that crime is driving while under the influence (DUI), reckless driving, theft or something else having an attorney represent you for the criminal trial is your right. In order to determine the severity of the charges and the amount of jail time or fines you can face you need to speak with an attorney as soon as you are able to. Facing a criminal charge is not picture of prison cellsomething you should try and handle on your own as those who will be prosecuting you are professionally trained. By having a knowledgeable and experienced attorney like those found at Finney Law Firm on your side you can be assured you will be getting the best representation possible.

Do you have any questions about the services above?

Paul Sian is a licensed attorney in the States of Ohio and Michigan.  If you feel you need the services of an attorney or have questions about any of the services named above feel free to contact me at or via phone at 513-943-5668.  Connect with me on Twitter and Facebook.

Why You Need A WillA Will/Trust Can Offer Peace of Mind


Guardianship:  “A legal guardian is a person who has the legal authority (and the corresponding duty) to care for the personal and property interests of another person…”  Wikipedia “Legal Guardian”

Heir:  A person (can be a relative or non-relative) who inherits some physical, real or monetary property under a Will.

Probate Attorney: An attorney who specializes in estate planning, Wills, Trusts, and Probate.

Trust:  A relationship whereby some type of property (usually money but can be financial assets like stocks, bonds and personal/real property like a home with real estate, a car, jewelry etc.) is held by one party (Trustee) for the benefit of another (beneficiary).

Will:  A Legal document which expresses a person’s desires for distribution of their assets, guardianship designations for their underage children, designation of the Executor, burial preference and more upon their death.

The Will and Estate Planning

Under a will you can dictate how your assets will be distributed upon death.  The biggest benefit with this is your family members will have less reason to fight over your belongings after death since you have stated who will get what in the Will.  You can either give everything you own as a whole to whomever you choose (there are limitations for this if you are married) or you can separate out your assets and indicate how particular assets are to go to particular people.  For instance if you have a classic car that you and a sibling worked on and you would like for that car to be given to your sibling that can specified in the Will.

In the case where you are married, state laws usually prevent you from completely disinheriting your spouse.  That means you cannot say in your will that your spouse gets nothing and instead all your money should be given to someone else.  If you are at the point in your life where divorce is being considered, after the divorce has been finalized you should have a new Will made.   Children under the age of 18 are also usually protected from being Last Will and Testamentdisinherited under the Will through state laws.

Wills should generally be stored in a fire proof safe within the house.  Putting a will in a safe deposit box adds extra steps to the process since  a court order must be obtained in order to get access to the safe deposit box after death.  There also should be only one executed original of the Will.  Multiple executed copies of the Will can cause confusion and slow down the process in the event new Wills were prepared at a later date with new instructions.

Why a Will?

One of the constant things in our lives that experts are always talking about is death and taxes.  Until they can figure out a way to extend our lives to make us immortal or figure out a way to give everything to everyone at no cost, both death and taxes are matters that we should take time to think about.  One should not dwell on those topics with a negative sense of impending doom, but understand that if we are not around our loved ones still need to be taken care of.  With proper planning one can make sure our loved ones are provided for of in the event something does happen to us.  Yes there are life insurance and retirement accounts which offer protection to our family members in the event of our passing.  But did you ever stop to consider how is that money from the insurance and retirement accounts distributed?  Normally money from life insurance or retirement accounts  are given out based on the instructions in the beneficiary forms we all should have filled out when we set up those accounts.  Simple enough?  Maybe not.  What if your children are the only living people who will be inheriting from your accounts and they are under the age of 18?  What if you forget to fill out the beneficiary forms?  While most state laws would prohibit under age 18 children from receiving those monies outright, the state will give that money to some adult (usually a relative if there is one) to hold and manage that money for your children.

By not having a Will you have given up that choice of who should hold and manage the money for your children.  It is possible the court may give the money to someone who may not be ideal with managing their own money and may run into problems when faced when managing money held for your children.  While courts will try and give the money to the best choice available it is not always guaranteed since they don’t know your family and friends like you do.  Yes we all have our trustworthy relatives who most certainly can manage and hold the inheritance money until the kids are above age 18, and by naming them in the Will as Guardian or Trustee you know you made the decision and did not leave it to someone else.

Of course there is also the idea of your child getting full and unrestricted access to a large amount of money at age 18.  Just like that, your children can have access to a large amount of money at age 18 to spend as they like.  Yes the wiser among our children will use that money to put themselves through college and work on improving their life.  But without our guidance and input some children may be tempted to instead get a fancy new sports car to take them to and from their college classes.  Too many bad financial decisions are made when one is younger and as a result any inheritance a person may have can quickly run out.

The above scenarios are exactly where a Will can come in handy and prevent money from falling into the wrong hands or from being spent unwisely.  By setting up a Trust you can designate how the money will be distributed to your children, who will hold and manage that money, and you can even distribute the money over time to your children.  Through the use of a Trust you can set age limitations and education requirements (i.e. certain amounts are paid out to children only after getting a college degree) so as to limit when your child can get full access to the money.  While an 18 year old may not be able to handle a large sum of money at one time, a 23 year old who has went to college and worked some should better be able to handle their finances.  All of this and more can be done with the use of a Trust.


In the case where we may pass before our children are above age 18 a Will can also be used to set up Guardianship for our children.  Under the Guardianship provisions of a Will a person can name anyone over the age of 18 to be the legal guardian for their minor children in case of death.  In the absence of a Will stating a preference for Guardianship Probate Court will try and find close relatives to assume Guardianship of children under the age of 18 regardless of what your preference might have been.  With no legally signed Will the court can only guess what a person would have desired and instead will usually look at who best is capable to care for children while they are under the age of 18.

Additionally if there was no Trust set up to provide for children under the age of 18 the guardian of the children will most likely also get supervisory duties for any money the children have inherited.  Under this scenario the guardian is “supposed” to use the money for the children they are caring for, whether they do or not is another story.  A Will which names one person as guardian and a Trust names a separate person as Trustee allows an extra layer of protection for any inherited money.  Of course the extra layer of protection also requires extra steps to follow which may slow down the process of getting money to children when they need it.

The decisions to name particular people as guardians for your children should be discussed with the potential guardians ahead of time so there are no surprises.  Guardians can be grandparents, aunts and uncles, close friends, siblings who are over the age of 18 and more.  Naming non-relatives as guardians when you still have blood relatives who would want to care for the children could result in court battles.  Discussing before hand your desires with both the guardians and your blood relatives of your wishes can help prevent unnecessary fighting down the line.

The Trust and Estate Planning

The commonly recommended form of Trust to set up is called an “inter vivos trust” which basically means a trust set up during the lifetime of a person.  This type of trust can be funded at the time of creation or left unfunded.  To fund the trust upon creation you can use most any assets you currently have and transfer them into the trust.  If you have an unfunded trust the proceeds from life insurance, retirement accounts, and any remaining assets named in the Will can be directed into the trust upon death.  The person setting up the trust can act as the initial trustee if so desired.

Upon death or incapacity the Trustee for a trust can either be an individual or can be specific trust companies who are setup to manage trusts.  You can name any person as Trustee under your Will and should pick someone you find to be trustworthy with managing money.  Trust companies are usually registered businesses with fiduciary and legal obligations requiring proper maintenance and management of trust Trust as part of a will.accounts under their control.  Management costs associated with trust companies will generally be higher so it may only make sense to use them when there are large sums of inheritance money to be managed.

Additional Documents

A Probate Attorney who specializes in Estate and Gift Law would be best able to help you in preparing your Will, Trust and Guardianship Papers.  The Probate Attorney would sit down with you to discuss your individual and family situations in order to best draft a Will for you.  If you are married your spouse should attend along with you as your  spouse may have a mirror image Will that often names the same people as guardians, trustees and relatives who will inherit under the Will.  You should also look into getting a Power of Attorney (POA), Health Care Power of Attorney, and/or Living Will documents.

With a Power of Attorney document there are different types to consider but the main one recommended is a POA document that only comes into effect if you are somehow incapacitated and unable to make decisions.  This type of POA will help your spouse or children make decisions for you when you cannot.  Those decisions may include dealing with the mortgage company, filing taxes, selling certain property and more.   The amount of power given in that POA document can be tailored to your desires and needs.

With regards to health, there is the Health Care Power of Attorney document which allows someone to make medical decisions for you in the event you are unable to.  This is also a helpful document to have in that it can be presented to a doctor or hospital by your spouse, adult child or someone else you trust who can then be able to make medical decisions on your behalf.  Without a Health Care Power of Attorney someone you trust to make decisions for you may get little say in medical treatments a doctor may propose.

Adding on to the Health Care Power of Attorney is a document called a Living Will which allows you to state whether you wish to be maintained on life support indefinitely.  Some people wish to express a desire to not be maintained on life support whereas others prefer to be maintained on life support.  This is not a  document you must have, but it is something that you should be aware of in case you do want to make that preference be known.

Final Thoughts

A Will and Trust are valuable estate planning tools for taking care of your family when you are gone.  A Will ensures your assets are distributed according to your wishes and can be used to appoint guardians for underage children.  A Trust can protect your assets from estate taxes upon death and can provide for more control over how your assets are distributed.  Only by sitting down with an attorney and discussing your plans, desires and needs can you fully accomplish what you want with a Will, Power Of Attorney, Health Care Power of Attorney, or Living Will.

Do you need a Will, Power of Attorney, Health Care Power of Attorney, Medical Directive or do you have more questions about those documents?

Paul Sian is a licensed attorney in the States of Ohio and Michigan.  If you would like to have a will, power of attorney, health care power of attorney, medical directive prepared for you or someone in your family or have questions about your existing documents feel free to contact me at or via phone at 513-943-5668.  Connect with me on Twitter and Facebook.

Tuesday of this week Finney Law Firm attorneys Isaac T. Heintz and W. Z. “Dylan” Sizemore present “5 Pillars of Success” for the Anderson Chamber of Commerce.

The course addresses the foundations of business success through carefully establishing and planning the success of your business with legal strategies in corporate law, real estate law and estate planning.

A video of the course will soon be available on line.

Even with proper estate planning, clients can take actions that unintentionally “undo” their estate planning desires.

Joint Accounts

It is not uncommon for an elderly client to set up a joint account with a child or other caretaker to facilitate such party’s handling of the client’s financial affairs.  In such situations, the joint account will transfer to the joint account holder without probate of the account.  Frequently, a client will not consider this aspect of setting up a joint account which may result in an imbalance in the division of a client’s estate.

Life Time Gifts

From time to time, a client will make monetary gifts to a child when the child is in need.  It is often the intention of the client (and the understanding of the family) that these gifts should be considered part of the child’s inheritance; however, without putting into place the appropriate paperwork, these gifts will not “legally” be considered in connection with the division of the client’s estate.


As with gifts, a client will make loans to a child when the child is in need, and it is the intention of the client (and the understanding of the family) that these loans will be paid back to the client.  Unless such loans are properly documented, it is difficult to determine the amount of the loans, and/or to enforce repayment of the same.  Even if the loans are documented between the client and the borrower, the documentation may be misplaced or destroyed prior to repayment.  Without repayment of the loan, it could result in the loan amount remaining with the borrower and the reduction of the estate of the funds that would have otherwise been received.

Updating Beneficiaries

Life insurance policies and retirement accounts will be distributed to the named beneficiaries.  If there is not a named beneficiary, then such amounts will most likely be payable to the client’s estate.  Clients do not revisit the beneficiary designations on a regular basis.  This can lead to the payment of these amounts to individuals designated years ago who the client no longer would want to receive such funds.  For example, a client may designate a brother or sister as a primary or secondary beneficiary of a life insurance policy with the idea that the brother or sister will see that the funds are used to take care of a client’s minor children.  However, the funds may not be paid until years later and the payee may not remember or appreciate the purpose for the payment.

Advancement Clauses

One way to address these types of issues is the inclusion of an advancement clause within a client’s estate planning documents.  An advancement clause creates the presumption that gifts given to a person’s heir during that person’s life are intended as an advance on what that heir would inherit upon the death of the client.  The concept of an advancement clause could be extended to assets received on the death of the client from a non-probate asset.

Sharing Information

Another way to help address these types of issues is by sharing information with the client’s beneficiaries and legal counsel.  If the client’s beneficiaries are aware of the intention of the client by creating joint accounts and/or making gifts, loans, and/or beneficiary designations, then the client’s wishes will be known to the affected parties, which could lead to the beneficiaries working together to see that the client’s wishes are honored.  A client’s sharing of information with his or her attorney can help the attorney advise the client on how to document and address such items within the client’s estate planning.


For help with planning the disposition of your estate according to your intentions, please contact Isaac T. Heintz at 513-943-6654.