Probate / Wills Resource Information

: Probate : Wills : Living Wills : Administering an Estate : Guardian :

Probate

What is probate?

When an Ohio resident dies owning probate property in the state, a legal proceeding to determine the deceased's assets, their value and the method of distribution to heirs is provided for by law. This proceeding is called probate, and it occurs whether the person dies with or without a will. Probate takes place in the probate court of the county where the deceased property owner resided. If the decedent also owned property in another state, additional proceedings may be necessary in that state. Probate property is all property that is not covered by any contract (or deed) providing for a succession on the death of the owner.

Why is probate necessary?

Probate is necessary to protect the assets of the decedent for the heirs, creditors and other persons due money from the estate, and to ensure the collection of money due to the estate. Probate provides for payment of outstanding debts, taxes and the expenses of administration and for the distribution of the remainder of the estate to the heirs.

What does probate involve?

Probating an estate requires the appointment of a person to conduct the administration of the estate. If there is a will, this person is usually named in the will and is called an executor. If there is no will, this person is appointed by the probate court and is called an administrator. The executor or administrator may be an individual, a bank or a trust company.
The executor or administrator takes care of the following tasks:

caring for all property of the decedent;

receiving payments due the estate, including interest, dividends and other income;

collecting debts, claims and notes due the decedent;

determining the names, ages, addresses and degree of relationship of all heirs;

determining the names, ages and addresses of all beneficiaries, if there is a will;

investigating the validity of all claims against the estate and paying all outstanding obligations including federal, state and local estate and income taxes;

planning for federal and state taxes and preparing and filing estate tax returns when required;

carrying out the instructions of the probate court pertaining to the estate and distributing the assets of the estate to the heirs.

The probate court judge supervises the work of the executor or administrator. These actions require the preparation and filing of numerous legal documents, the provision of notices, hearings in court, an appraisal of the assets of the estate, an inventory of the assets, completion of final income tax returns and possibly gift and estate tax returns, an accounting of funds, final transfer of all assets to beneficiaries, termination of the probate proceeding, and discharge of the executor or administrator by the probate court. Because of the complexity of these procedures, the assistance of an attorney usually is needed.

If the total value of all property in the decedent's individual name is $35,000 or less, the estate can be relieved from most of these administrative requirements. Where the decedent's spouse is entitled to receive all of the estate's assets, the amount is increased to $100,000. In most estates, an Ohio estate tax return must be prepared and filed. A federal estate tax return may have to be filed depending on the total value of all assets of the decedent.

How much does probate cost?

The costs assessed by the probate court are based on a schedule of charges established by law for each type of document filed in the court. Attorney fees charged for handling matters of the estate must be approved by the court and are based on the actual services performed by the attorney.

How long does probate take?

New legislation, soon to be enacted, will require an estate to be settled within six months of the appointment of the executor or administrator. However, if an Ohio or federal estate tax return is required, the administration of the estate can last more than a year. (Estate taxes are not due until nine months after the decedent's death.) The audit of a federal estate tax return often takes another year, and an executor or administrator cannot safely distribute all of the estate assets until released from personal liability for estate taxes. An extraordinary case involving a contested will or complicated tax litigation may take three years or more. Claims against the estate may be made up to one year from the date of death.

Will joint tenancy avoid probate?

"Joint tenancy with right of survivor ship" is a form of co-ownership of property whereby two or more persons own property together. On the death of one joint owner, proceedings may still be required to transfer title of certain assets and to determine taxes. Joint tenancy can be a useful device in certain situations. However, the unrestricted use of this device can lead to adverse consequences. Often, litigation over bank accounts occurs to determine whether the creator of the joint tenancy wanted the survivor(s) to be the sole owner(s) of the property.

Other forms of property ownership that bypass probate include life insurance, retirement plans passing to a designated beneficiary, securities and real property designated to be transferred on death (TOD) to a named beneficiary, and assets within a revocable trust funded by the decadent during his or her lifetime.

Even if assets bypass the probate process, they are still subject to estate taxes.

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Wills

Do I need a will?

A properly drawn will assures you that, upon your death, your property will be distributed as you intended. It is important that you review your will periodically with your attorney in order to keep it up to date. A will is also the mechanism for choosing the executor and commonly provides for the nomination of a guardian where there are minor children. A will can also dispense with the requirement of a surety bond which an administrator might otherwise have to pay.

Wills must be filed in the probate court upon death. The law provides penalties for the withholding or destruction of a will.

If you do not make a will, your property will be distributed according to the Ohio Statute of Descent and Distribution.

What is a will?

A will is a document that provides for the way in which a person's probate property will be distributed upon death. To be valid, it must meet certain formal requirements as provided by the laws of the state involved.
Who may make a will?
A person who makes a will in Ohio must be free from improper influences, must be at least 18 years old and must be of sound mind.

How is a will made?

With limited exceptions, a will must be written. A will must be witnessed in a special manner provided by law, and it must be signed in strict accordance with the law.
The easiest way to ensure that these conditions are met legally is to have the signing of the will supervised by an attorney.

May a will be changed?

A will may be changed as often as the person who wrote it wishes. Changes are frequently made by the simple device of an addition called a ""codicil." However, changes should not be made without the assistance and advice of a lawyer to ensure changes will be legally valid and not adversely affect other portions of the will.

How long does a will last?

A properly drawn and executed will is generally effective until it is changed or revoked. Changes in circumstances after a will has been made, such as tax law changes, marriage, birth of children, divorce or even a substantial change in the nature or amount of a person's estate, may raise questions about the adequacy of that will. All changes in circumstances require a careful analysis and reconsideration of all the provisions of a will and may make it advisable to change the will to reflect the new situation.

Does a will increase probate expense?

No. It costs no more to administer an estate when a decedent leaves a will than when there is no will. Often it will cost less. When there is a will, the executor distributes the estate to the parties named in it. When there is no will, the probate court must determine who the legal heirs are and then distribute the estate to them. In either case, administration under the supervision of the probate court is necessary.

A properly drafted will may reduce expenses of administration in a number of ways. Provisions can be placed in wills that take full advantage of the "marital deduction" section of federal estate tax laws. In most cases it is possible to avoid the payment of a bond for the executor by so providing in the will. These examples illustrate that a will can save money for you and your family if it is drafted by a lawyer who is trained in all phases of the law.

How large an estate is necessary to justify a will?

Everyone who owns any real or personal property should have a will regardless of the present amount of the estate. Estates grow in value almost unnoticed through the repayment of mortgages, appreciation of stocks and other investments, inheritances from relatives, and other sources.
May a person dispose of property in any way by making a will?
Almost, but not quite. For example, a married person can make a will that completely excludes his or her spouse, but the law of Ohio still provides the surviving spouse with an "elective share" in the probate estate. Also, a divorce revokes the portion of a will that refers to leaving property to the spouse who has been divorced. There are certain other restrictions a lawyer can explain.

What happens to property held in the names of both husband and wife?

Property held in the names of both husband and wife may not automatically pass to the survivor upon the death of one of them. However, there are some forms of ownership in which property does pass to the survivor automatically. Sometimes it is to your advantage to hold property in this manner. Other times it can be disadvantageous. An attorney can advise you as to the type of property that can be held in joint tenancy, or in other ways that avoid probate, and the advantages that you might gain. For more information on ways to avoid probate, see the following Ohio State Bar Association publications: ""What you should know about . . . Living Trusts"" and ""What you should know about . . . Probate."

Does a will let me avoid estate taxes and other 'death' taxes?

Whether or not there will be an estate tax depends primarily upon the value of a person's estate. Deductions are also available for debts, expenses of administration, or distributions to a surviving spouse or charity. However, a properly drafted will might reduce the amount of taxes that have to be paid. Wills written without consideration of recent federal tax laws should be re-examined in light of tax law changes. An estate-planning lawyer is skilled not only in the laws of wills and property, but also must be familiar with both state and federal estate tax problems.

What happens if I don't make a will?

When a person dies without a will, or dies "intestate" as the law calls it, the property of the deceased is distributed according to a formula fixed by law. In other words, if you don't make a will, you don't have any say about how your property will be distributed.

In Ohio, for example, if a man dies without a will, leaving two or more minor children, the wife would take a fixed sum of money and one-third of the remainder of the estate. The widow or other suitable person would need to be appointed guardian of the children by the probate court and would need to give the court a surety bond. When each child reaches age 18, his or her share of the guardianship estate would be required to be made fully available to the child, regardless of his or her maturity level. Such proceedings could cost a lot of money and could create legal problems that might have been avoided had the husband made a will.

Who will manage my estate?

If you make a will, you may name the person whom you want to manage the administration of your estate (the executor). If you do not make a will, the probate court will appoint someone (the administrator), whom you may or may not know, to handle your estate.

Can life insurance take the place of a will?

No. Life insurance is only one kind of property that a person might own. If a life insurance policy is payable to an individual, the will of the insured has no effect on the proceeds. If the policy is payable to the estate of the insured, the disposition of the proceeds may be directed by a will. The careful person will have a lawyer and a life insurance counselor work together on a life insurance program, particularly in the area of estate planning.

Who should draft a will?

No sensible person would engage "just anyone" to fill teeth, take out an appendix, or adjust a sensitive and complicated instrument. The person who wants these services performed with a minimum of risk to self and property will engage a trained professional person.

The drafting of a will requires professional judgment. A lawyer can help you avoid pitfalls and choose the course best suited for your situation."

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Living Wills

What is a living will declaration?

A living will is a legal document you can complete now that declares what your wishes are regarding the use of life-sustaining treatment if you should become terminally ill or permanently unconscious. A living will:

becomes effective only when you are unable to communicate your wishes and are permanently unconscious or terminally ill;

spells out whether or not you want life-support technology used to prolong your dying;

gives doctors the authority to follow your instructions regarding the medical treatment you want under these conditions;

can be changed or revoked by you at any time, but cannot be changed or revoked by anyone else;

will be followed for a pregnant woman only if certain conditions apply; and

specifies under what conditions you would want artificial feeding and fluids to be withheld.

What is a durable power of attorney for health care?

A durable power of attorney for health care is a legal document that authorizes another person to make health care decisions for you if you are unable to make informed health care decisions for yourself.

A durable power of attorney for health care:

names an individual you trust to make a wide variety of health care decisions for you at any time you cannot do so for yourself - whether or not your condition is terminal;

becomes effective only when you cannot make your own decisions regarding treatment;

requires the person you appoint to make decisions that are consistent with your wishes; and

will not overrule a living will in the event you have both documents.

I don't know about life-support equipment, or what treatment I'd want. How do I get more information?

Each of us has the right to learn about our options and should assume responsibility for our own health care decisions. It is important to talk to your doctor and get your questions answered.

If I have a living will, do I need a durable power of attorney for health care too?

Many people will want to have both documents because they address different aspects of your medical care. A living will gives your instructions directly to your doctor and it applies only when you cannot communicate your wishes and are in a terminal condition or are permanently unconscious.

A durable power of attorney covers a wide range of health care decisions - like approving surgery or changing doctors after an accident - that do not require a patient to be dying. Often a spouse or relative is selected to act on your behalf when you cannot, because they know you well enough to know what you would want done.

If my living will says I don't want to be hooked up to life-support equipment, would I still get pain medication?

Yes. A living will only affects care that artificially or technologically postpones death. It would never affect care that eases pain. For example, you would continue to receive oxygen and medical care that includes pain medication, spoon feeding and being turned over in bed.

Can I specify that I do not want cardiopulmonary resuscitation (CPR)?

Yes. You may include a clause authorizing a "DNR order" in your living will. DNR stands for "do not resuscitate." The standard form for living wills now includes such a DNR provision. This living will DNR is useful for conveying your wishes to family members and medical staff; however, it will not be activated unless two doctors have agreed that you are either terminally ill or permanently unconscious, and your personal doctor has agreed that you can no longer express your wishes regarding health care. Your attorney can help answer questions about DNR orders and the provisions concering DNR that may be included in a living will. For more information about DNR orders, see the publication, "What you should know about…DNR Orders," published by the Ohio State Bar Association.

Who decides that I am dying or permanently unconscious without hope of recovery?

If you've indicated that you don't want your dying to be artificially prolonged, two doctors who have examined you must agree that you are beyond any medical help and that you will not recover.

A living will may be important for a senior citizen, but why is this a priority for someone in their twenties?

A living will is designed to give you and your family peace of mind whether you are 25 or 75 years of age. Traffic accidents are the leading cause of death among Ohioans under the age of 45. When Nancy Cruzan was 25 years old, she was thrown from a car and went into an irreversible coma. Because she didn't have a living will or durable power of attorney, her family had to struggle in the courts, including the United States Supreme Court, for seven years before life-support machines could be turned off.

Would my family be notified before doctors stop life-support treatments?

It is very likely your family would be informed. Although doctors do not need your family's permission to follow the instructions provided through your living will, they are required to make reasonable efforts to notify a person named in your living will, or a family member, before following your instructions to withdraw life-support. If that person feels your living will isn't being properly followed, or isn't legally valid, an immediate hearing can be scheduled in probate court to determine if there are legal grounds not to follow your instructions. By law, no one can change or overrule your living will if it was freely and correctly executed.

If my condition becomes hopeless, can I specify that I want my feeding and fluid tubes removed?

No special instructions are needed to allow the withholding of nutrition and hydration if you are in a terminal condition and they don't provide you with comfort or relieve your pain. However, if you want to allow your doctor to withhold artificial nutrition/hydration if you are permanently unconscious, your document needs to expressly state this.

My mother is in a nursing home. If she gave me her durable power of attorney for health care, could I act on her behalf in every area affecting her treatment?

Yes, but not until she is no longer able to make those decisions on her own behalf. A durable power of attorney for health care covers not just life-sustaining treatment, but all aspects of medical treatment once the patient is unable to express his or her own wishes. A regular power of attorney over a relative's business affairs doesn't apply to medical situations. You need a special durable power of attorney for health care.

If I want to designate someone to make health care decisions for me, must it be a member of my family?

No. You may appoint any adult you wish as long as it isn't your doctor or the administrator of a health care facility in which you are being treated.

I had a durable power of attorney for health care before the 1991 law went into effect. Do I need a new one?

You may. Check with your attorney to make sure that the document you have includes specific language that is required under the 1991 law.

Where can I find the standard forms for a living will or a health care power of attorney? Can I draw up my own?

The Ohio State Bar Association has developed standard forms with the Ohio Hospice & Palliative Care Organization, the Ohio State Medical Association, and the Ohio Hospital Association to make it easier for the people who choose to have these documents. You may obtain a copy of these forms by mailing a request along with $3 to the Ohio Hospice & Palliative Care Organization at 1646 W. Lane Ave., Suite 2, Upper Arlington, Ohio 43221.

You do not have to use the standard forms. However, for either document to be valid, it must include specific language spelled out in the Ohio Revised Code. Your physician and attorney will have copies of the standard forms, as will many organizations.

What do I do after I fill out a living will declaration or form for a durable power of attorney for health care?

Make several copies. Give one to a trusted member of your family. Keep another with your personal papers. Leave copies with your physician and your lawyer, and, perhaps, your clergy person.

Can I have documents saying that if I become critically ill, I want treatment to be continued using every available means to keep me alive?

Yes, but you should talk to an attorney. You will not be able to use the standard forms for the documents. You should also talk to your physician about the effect of your decision.

Definitions

Ohio's Living Will Law uses several words that have meanings that might be helpful to explain here.

Life-sustaining treatment - any medical procedure, treatment, intervention or other measure that when administered to you serves principally to prolong life.

Hydration - fluids that are artificially or technologically administered through tubes.

Nutrition - refers to food that is artificially or technologically administered through tubes.

Permanently unconscious - to a reasonable degree of medical certainty: (1) you are irreversibly unaware of yourself or your environment; and (2) there is total loss of cerebral cortical functioning - which results in your having no capacity to experience pain or suffering.

Terminal condition - an irreversible, incurable and untreatable condition caused by disease, illness or injury from which, to a reasonable degree of medical certainty: (1) there can be no recovery; and (2) death is likely to occur within a short period of time if life-sustaining treatment is not administered.

Comfort care - nutrition and/or hydration when administered to diminish pain or discomfort, but not to postpone death; and any other medical care that diminishes pain or discomfort - like pain medication and turning a patient - but does not postpone death.

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Administering an Estate

What does it mean when someone dies "intestate"?

When someone dies without leaving a will to spell out how they want their money and property (called their "estate") to be distributed to survivors, that is called dying "intestate."

What is the role of the probate court?

In each of Ohio's 88 counties, there is a division of the common pleas court called the probate division - commonly referred to as the probate court. The primary job of the probate court is to see that all debts, taxes and other financial affairs of people who die in that county are resolved, and that the money and other valuable property left after debts are paid is distributed to the persons legally entitled to receive it.

Who handles the estate?

When the person who died (the "decedent") leaves a will, the probate court appoints a trusted person named in the will to serve as "executor" of the estate. The executor works with the court to see that the decedent's financial affairs are resolved and the remainder of his or her estate is distributed according to the instructions spelled out in the will.

When someone dies intestate, and "administrator" for the estate is appointed by the probate court. Ohio law requires that the court appoint the surviving spouse of the decedent as administrator, and if none, or if the spouse declines, the court will appoint one of the next of kin of the decedent. In any event, the administrator must be a resident of Ohio. If there is no surviving spouse or next of kin resident of the state, or if the court finds such persons to be unsuitable, some other suitable person will be appointed as administrator.

Before the court issues official "letters of appointment" naming an administrator, the person named must sign an acceptance statement that spells out his or her duties and acknowledges that the court can fine or remove an administrator for failure to perform those duties faithfully. The administrator must also post a bond (paid from the decedent's estate) to cover potential losses that the estate might suffer through error or mishandling of assets during the administration process.

What are the duties of an administrator?

The duties of an administrator are similar to those of the executor of a will, except that an administrator must follow the instructions of the probate court and the statute of descent rather than the terms of a will. The basic duties of an administrator are:

1. Inventory and appraisal. The administrator must identify all financial assets and property that were owned by the decedent at the time of death,* and file an inventory with the probate court within three months of the administrator's appointment, unless an extension is granted.

* (Important note: Most estates include what are known as "NON-PROBATE ASSETS" that generally DO NOT HAVE TO BE INCLUDED IN THE INVENTORY FILED WITH THE COURT. Non-probate assets are assets that legally pass from a decedent to a named beneficiary or to a co-owner at the time of death, without having to go through the probate court. Insurance policies; IRAs and pensions that are payable on death to a beneficiary; and a home, car or bank account which the decedent owned jointly with rights of survivorship normally fall into this non-probate category. In many cases, the bulk of a decedent's assets may be non-probate assets. The administrator must identify non-probate assets for tax purposes, but these assets are not otherwise included in the "estate" for which the administrator is responsible. When this pamphlet refers to collecting or distributing a decedent's assets, it refers only to those assets that are subject to probate.)

While a professional appraisal isn't required for assets the value of which is "readily ascertainable" (for example, shares of stock in a publicly-traded company or the balance in a bank account), items such as jewelry, art objects, antiques, real estate and any other possessions whose value cannot be readily established must be appraised by a qualified person.

2. Collecting assets. The administrator must collect all assets of the decedent. This is very important (especially to prospective heirs) because it is these assets that will be distributed to heirs after debts and taxes have been paid. Complications can arise in this process if assets legally owned by a decedent are in the possession of someone else at the time of death, or if property belonging to the decedent has been concealed or misappropriated by a third party. Sometimes collecting assets may require the administrator to follow through on a lawsuit in which the decedent was involved at the time of death, or to file a lawsuit to complete a legal claim the decedent had not fully asserted while alive. For example, if the deceased was killed in an accident it may be necessary to file a suit to recover damages for wrongful death.

3. Payment of debts and expenses. Creditors (people to whom the decedent or his or her estate owe money) have one year from the date of death to present their claims against the estate. Any claim not submitted within one year is barred forever. Claims must be submitted to the administrator in writing, and should be sent by registered mail, although that is not required to present a valid claim. In addition to ordinary bills the decedent owed at the time of death, other debts typically include expenses to keep up property; local, state and federal taxes; hospital and funeral expenses; and expenses of administration including probate court costs, bond premiums and fees charged by appraisers, attorneys and the administrator.

Even after accepting a claim as valid, the administrator must be certain there will be sufficient assets to pay all claims - including those not yet presented. Certain debts have priority. Generally, taxes, funeral expenses and costs and expenses of administering the estate must be paid first. If there are sufficient cash assets in the estate to pay debts, they will be paid out of cash. If there is not enough cash, then estate property will be sold (personal property first and then real estate if necessary) to raise the cash needed. If the total assets in an estate are not sufficient to pay all of the valid debts, claimants must be paid according to a priority schedule established by the probate court.

4. Distribution of assets. When all debts, taxes, costs and expenses of the estate have been paid, the administrator must distribute the balance of the estate to the decedent's heirs according to a strict percentage formula spelled out in Ohio's statute of descent and distribution. Because an administrator can be held personally liable for any error or excess distribution to an heir that cannot later be recovered, expert legal advice should be obtained before making a final disposition of estate assets. Sometimes an administrator will make a partial distribution of certain assets before all claims have been received. In such cases, persons receiving early partial distributions should be advised that they may be required to return money or property to the estate if it is needed to satisfy valid claims.

What is the statute of descent and distribution?

This is the state law that specifies what share of the probate assets in an intestate estate shall be distributed to each of the decedent's heirs after all valid claims have been paid. Generally speaking, the statute gives strong preference to those persons most closely related to the decedent.

Following is a partial summary of some basic guidelines in Ohio's statute of descent and distribution:

Please note that the following discussion uses lay person's language rather than precise legal terms or definitions, and does not include an extensive list of additional survivorship situations spelled out in the statute.

If a decedent is survived by a spouse and no surviving children or lineal descendants of deceased children, the entire estate goes to the spouse.

If a decedent is survived by a spouse and one or more children or their lineal descendants, and all the children who survive or have lineal descendants are also the children of the surviving spouse, the entire estate goes to the surviving spouse.

If a decedent is survived by a spouse and one child or the child's lineal descendants and the surviving spouse is not the natural or adoptive parent of the child, the spouse receives the first $20,000 from the estate plus one-half the remainder and the balance of the remainder passes to the child or the child's lineal descendants.

If a decedent is survived by a spouse and more than one child or their lineal descendants, the spouse will receive the first $60,000 if the spouse is the natural or adoptive parent of one, but not all of the children, or the first $20,000 if the spouse is not the natural or adoptive parent of any of the children. The spouse will receive one-third of the balance of the estate and the children will receive two-thirds of the balance of the estate. Lineal descendants of a deceased child divide that child's share.

If there is no surviving spouse, but surviving children or their lineal descendants, each of the children receives an equal share of the estate. Lineal descendants of a deceased child divide that child's share.

If the decedent has no surviving spouse or children and no lineal descendants of deceased children, the estate goes to his or her surviving parent(s) or, if both parents have died, in equal shares to brothers and sisters or their lineal descendants.

The statute goes on at considerable length to cover other possible survivorship situations not covered in this summary. Readers of this pamphlet are urged to consult an attorney for clarification of this information, and to seek professional advice before taking any legal action related to administration of an estate.

What is an administrator's account?

Within nine months after his or her appointment, and at least once a year thereafter unless the court specifies otherwise, every administrator of an estate is required to file a report called an "administrator's account" with the probate court. This account must include an itemized statement of all receipts, disbursements and distributions made by the administrator during the reporting period. It must also list all estate assets and investments in possession of the administrator as of the date of the account, and show any changes in investments since the previous report. When distribution of all estate assets has been completed, the administrator files a "final and distributive" account with the court and is released from his or her duties.

What are characteristics of an effective administrator?

One of the keys to being an effective administrator is to be highly organized. In the administration of a decedent's estate, it is essential to keep very careful records and to carry out all procedures required by the probate court in an orderly manner. It is also important to maintain a positive relationship with the decedent's heirs. This is especially true when the administrator is one of several surviving relatives of the decedent. An administrator will encounter far fewer problems and complications if he or she keeps all the decedent's heirs informed of what is going on and treats them as equals.

Who should assist the administrator?

Serving as an administrator involves serious legal responsibilities, and can expose you to major financial liability if claims and assets are not properly handled. If you are appointed to serve as administrator of an estate, don't rely on casual advice from friends and family members regarding your duties to the court and the decedent's heirs. A lawyer can provide you with trained legal advice and professional judgment regarding the complicated laws involved, to help you avoid pitfalls and make the proper decisions.

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Guardian

What is a guardian?

A guardian is a person appointed by a probate court to be legally responsible for another person and/or for another person’s property. While individuals are usually appointed to serve as guardians, a corporation or association may also serve in that capacity. A person for whom a guardian has been appointed is called a “ward.”

Why are guardians appointed?

A guardian is appointed by the court to oversee the legal and financial affairs (and/or the personal care) of a minor, or of an adult who is not able to manage his or her own affairs because of advanced age or some other physical or mental disability. A guardianship may be voluntary, which means the guardian is appointed at the request of the ward, or it may be involuntary if family members or others ask the court to act to protect someone who appears to be incompetent. Once appointed, a guardian is answerable to the court for providing proper care and management of the ward’s affairs in the ward’s best interest.

What are the general powers and duties of a guardian?

The control that a guardian has over a ward is limited to the authority granted by Ohio statutes, relevant decisions of Ohio courts, and orders and rules of the probate court. All guardians must obey the orders and judgments of the probate court by which they were appointed. The probate court may confer broad and far-reaching powers on a guardian, or it may limit or deny any power granted under Ohio statutes or Ohio case law. Ohio law provides for different types of guardianships (listed below).

What are the types of guardianships?

A “guardian of the person” is appointed to protect and have physical custody of a ward and to provide for the ward’s day-to-day maintenance, paid from the ward’s assets. Maintenance means providing food, shelter, clothing, health care and other necessities. It includes responsibility for the education of a minor ward as required by law, and making decisions about medical treatment and other professional services the ward may require. A guardian of the person also serves as guardian of an incompetent adult’s minor children, if no other guardian has been appointed for them. Only a “natural person” (not a bank or a company) can be appointed as a guardian of the person.

A “guardian of the estate” is appointed to manage the property and financial assets of the ward for the ward’s best interests. Specifically, the guardian of the estate must:
— pay all debts owed by the ward;
— collect all money owed to the ward;
— settle and adjust any assets received from the executor or administrator of an estate;
— deposit all funds of the ward into an account in the name of the guardian as fiduciary;
— invest any of the ward’s funds not needed for current obligations according to legal guidelines;
— file an official inventory and accounts of the ward’s estate with the court on a regular basis;
— file or defend lawsuits on behalf of the ward if necessary to protect his or her interests.

(Note: Unless the court order appointing a guardian specifies otherwise, the same person is normally named as both guardian of the person and the estate.)

A “limited guardian” is a guardian whose powers are specifically limited by the probate court. A ward for whom a limited guardian has been appointed retains all rights in all areas not covered by the Order of Limited Guardianship.

An “interim guardian” is a guardian appointed after a former guardian has been removed or resigns when the welfare of the ward requires immediate action.

An “emergency guardian” is a guardian appointed by the probate court without a formal hearing when an emergency exists and a guardian is necessary to prevent injury to the person or estate of the ward.

A “conservator” is a person appointed by the probate court at the request of a mentally competent adult who is physically unable to manage certain aspects of his or her life. The person requesting the appointment of a conservator specifies the powers requested on the Petition for Conservatorship.

What is included in a guardian’s inventory?

A guardian of the estate of a ward must file an inventory of the ward’s assets within three months after appointment. The inventory must list all real and personal property of the ward and the annual value of the rental of any real estate.

The probate court may require that the inventory be supported by evidence and that the guardian produce prior income tax returns, bank statements, Social Security records of the ward or any other relevant documents. In addition, the probate court may appoint an examiner or assign court employees to conduct an investigation to verify the accuracy of the inventory. At the time he or she is appointed, a guardian may not open a ward’s safety deposit box until it has been audited by the county auditor of the appropriate county involved.

What is a guardian’s account?

Every guardian, except a guardian of the person only, must file an account in the probate court at least once every two years, or more often if local court rules require it. A final account must be filed within 30 days after the termination of the guardianship. This account must include an itemized statement of all receipts, disbursements and distributions made from the ward’s estate. All transactions must be verified by vouchers or proof, unless a corporate fiduciary is involved. The accounting must also contain an itemized statement of all funds, assets and investments in the guardian’s hands at the end of the accounting period, and any changes in investments since the last account was filed. Actual securities and passbooks or bank statements must be exhibited to the probate court for examination, and the account must be made on the signature and oath of the guardian.

A “guardian of the person only” may also be ordered to provide an accounting from time to time for good cause shown on the court’s own motion or on motion by any interested party.

What is a guardian’s report?

A formal guardian’s report to the probate court is now required of all guardians of incompetent persons. This report must be filed two years after the date of a guardian’s appointment, and every two years thereafter. It is generally filed with the guardian’s account. The probate court, on motion or by rule, has the authority to require such a report at any time.

The guardian’s report must be made on a court-prescribed form, and must contain a great deal of specific information, including a list of the number and nature of contacts with the ward over the period covered by the report; any major changes in the ward’s physical or mental condition observed by the guardian; the guardian’s opinion as to the necessity for continuing the guardianship and the adequacy of the care that the ward is receiving; and the date that the ward last saw a physician. The purpose of the report is to assist the probate court in determining if the guardianship should be continued. The court may appoint an investigator to verify the report.

How can I be an effective guardian?

The key to being an effective guardian is to have as much knowledge about and direct contact with the ward as possible. The guardian should make every attempt to have a positive relationship with the ward, visit and communicate with the ward often and generally demonstrate personal concern for the ward and his or her well being.

It is also important to establish and maintain a positive relationship with all of the ward’s family members. A guardian will find that he or she can avoid problems and complications by keeping all family members informed of what is going on with the guardianship, and actively inviting them to participate to the extent practical. Problems rarely arise in those guardianships where the guardian makes both the ward and his or her family members feel that they are important members of a team.

If I am named as a guardian, what help should I seek?

No sensible person would engage “just anyone” to fill a loved one’s tooth or remove an appendix. Likewise, a guardian should be careful in taking advice regarding his or her duties to the ward. A lawyer can help you understand and fulfill your legal duties as a guardian, and avoid mistakes or oversights that could result in serious harm to your ward or his or her family. Ohio’s laws regarding the appointment and conduct of guardians are not simple. Understanding and complying with them calls for professional expertise.

Where can I get more information?

If you or someone close to you needs information on how to set up a legal guardianship, contact the probate court in your county and ask friends and family members for the name of an attorney who is knowledgeable about probate matters. If necessary, contact the lawyer referral service operated by your local bar association or one nearby. Check the Yellow Pages under “associations” or “attorney referral services.”

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