TRUSTS

LEGAL PRACTICE IN THE PROBATE COURT

Legal practice in the Probate Court is restricted by law to attorneys who are licensed by the Supreme Court of Ohio. If an individual wishes to handle his or her own case, he or she may do so; however, they may not represent others. Due to the complexity of the law and the desire to avoid costly errors, most individuals who have filings before the Court are represented by an attorney. Deputy clerks are prevented by law from practicing law and, therefore, are not permitted to give advice.

Trusts are an entity that can hold assets. A trust is created by a Settlor, who transfers title to some or all of his/her assets to a Trustee who then holds those assets in TRUST for the benefit of the beneficiaries.

TYPES OF TRUSTS

• Inter Vivos Trust – is created during a person's lifetime. It is a legal document that creates a separate legal entity. The person creating the trust, known as the settler, transfers assets (i.e., banks accounts, real estate, motor vehicles) into the trust. The trustee controls the assets immediately upon the asset being transferred into the trust. The physical trust document dictates how the trustee can utilize the trust assets during three time periods:
  • When the settlor is alive.
  • When the settlor is incapacitated.
  • When the settlor is deceased.
  The administration of the Inter Vivos Trust can occur without any involvement of the Probate Court. However, in the event there is a dispute, the Probate Court can become involved in the trust's administration.
• Testamentary Trusts – is created at the death of a person, known as the Testator. The rules and regulations that the Trustee must follow in distributing money and assets come from the last Will and Testament. An individual is nominated in the Will to serve as Trustee and the Trust is established and overseen by the Probate Court. Testamentary Trusts provide for the management of money for beneficiaries who the Testator did not want to have the assets independently for a variety of personal reasons.

ALTERNATIVES TO TRUSTS – REAL ESTATE

Transfer on Death Affidavits
An individual who owns real estate in Ohio may record a Transfer on Death Affidavit with the County Recorder. The person owning real estate, known as the Grantor, signs an affidavit designating who will take title to the property upon the death of the individual. Upon the death of the Grantor, the person or persons designated to receive the title to the property need only to file an affidavit and the death certificate with the County Recorder to cause the property to transfer. Until the death of the Grantor, the person or persons designated to receive title at death have no rights to the property. The Grantor can change his or her mind and revoke the transfer or designate a different individual.

Joint Survivorship Deeds
An individual owning real estate in Ohio can execute a deed to themselves and another person or persons with rights of survivorship. With this deed, both the individual signing the deed, known as the Grantor, and the other individual(s) obtaining title have full rights of title to the property. Title is immediately held by the recipient with rights equal to the Grantor. Upon the death of the Grantor or other individual(s) the entire interest in the property transfers to the survivor(s). In order to transfer the property upon the death of either of the parties, the survivor needs only to record an affidavit and death certificate with the County Recorder. This type of transfer is not revocable.

Life Estates
An individual owning real estate in Ohio can transfer their property to another individual(s) through a deed and retain a Life Estate, which is the right to reside in the residence and/or utilize the property until death. Although the individual retains the right to live in the residence, the title to the property transfers immediately. This type of transfer is not revocable.

ALTERNATIVES TO TRUSTS – BANK ACCOUNTS

Most banks permit the owners to designate Payable on Death Beneficiaries. The individuals designated as beneficiaries do not have any rights to the money in the accounts during the life of the Owner. However, upon the death of the Owner, they take over ownership of the account without any involvement of the Probate Court.

It is also possible to designate joint owners on an account. Banks generally permit any of the Joint Owners to withdraw up to the full amount of the account without prior authorization of the other. The law only permits owners of Joint Survivorship Accounts to withdraw what they have deposited, but, because banks generally permit the withdrawals, it is often difficult, if not impossible to get money wrongfully taken returned.

ALTERNATIVES TO TRUSTS – AUTOMOBILES AND BOATS

By statute, a surviving spouse is entitled to receive title to vehicles that were titled in their deceased spouse's name without involvement of the Probate Court. The vehicles must have a combined value of no more than $65,000.00. Vehicles include motorcycles and trucks, so long as they were used as a method of conveyance by the deceased spouse or the family prior to the deceased spouse's death. The Spouse and Automobile form must be completed and filed at the Sandusky County Title Office. For more information SEARCH HERE.

A motor vehicle title may also contain a transfer on death designation. The individual designated to receive title upon the death of the individual has no rights to the motor vehicle during the life of the original owner.

By statute, a surviving spouse is also entitled to the title of one watercraft and one outboard motor titled in the name of the deceased spouse without Probate Court involvement. The Spouse and Watercraft form must be completed and filed at the Sandusky County Title Office. For more information SEARCH HERE.

FORMS

Sandusky County Probate Court has developed local forms to assist in filing a TRUST as follows: