September 29, 2014
Last Will and Testament. A Last Will and Testament directs the distribution of probate assets upon the death of an individual (“testator”). Probate assets are assets held in an individual’s name at the time of his or her death that do not otherwise transfer by contract (e.g., transfer on death designations, joint and survivorship, etc.).
Probate assets are subject to the oversight of Probate Court and administered in the County in which the decedent resided at the time of death.
The Last Will and Testament includes a provision for the designation of the personal representative (Executor) of the testator’s choosing, to be appointed by Probate Court.
Trust. A Trust is a legal relationship whereby property is held by one party for the benefit of another. There are two (2) basic categories of written Trusts; Living Trusts (Inter Vivos Trusts) and Testamentary Trusts.
The primary difference between a Testamentary Trust and a Living Trust in Ohio is that the Testamentary Trust is under the supervision of the Probate Court from the appointment of the Trustee to final distribution. In connection with a Living Trust, the Trustee administers the Trust without the involvement of the Probate Court, except under certain special circumstances. An advantage of a Living Trust is that the Trust, Trust assets, and distributions are not of public record.
Living Trusts are revocable or irrevocable, and are set up during the lifetime of the Grantor. Trusts are also very useful for setting up funds for the benefit of someone who is handicapped or incompetent. They are frequently used by parents and siblings for a “special” family member. Trusts can also be used in Medicaid planning.
Living Trusts are often used in moderate and large estates to assist management and to avoid incurring Executor fees and reduce attorney fees at death.
Testamentary Trusts are established in the Grantor’s Last Will and Testament, and are funded, if ever, after the death of the testator. A Testamentary Trust may never be funded because the testator may make funding contingent upon certain circumstances; for example, the Last Will and Testament may state that the Executor funds the Trust only if the testator and the testator’s spouse both die while their children are minors.
Ohio law gives Probate Court the exclusive power to direct and control the conduct of the Testamentary Trustee. The Testamentary Trustee is required to prepare and file with Probate Court, an account of the Trustee’s administration of the Trust at least once in each two (2) years, or at any other time upon order of the Probate Court. The account must include an itemized statement of all receipts of the Testamentary Trustee, and of all disbursements and distributions made by the Testamentary Trustee during the accounting period