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Recording a Hearing

The Sixth District Court of Appeals has recently ruled that an appeal from probate court cannot be a substitute for a proper records request. The appellant wanted to obtain a transcript from a hearing at probate court. The case was closed and an appeal of the closing of the case had not been filed. Asking for a transcript on a closed file is irregular, and the probate court refused. An appeal of that refusal was made and the court of appeals stated that the appellant should have filed a different type of suit to get public records, which is what the transcript actually is. The moral of the story is that when you have a litigated or controversial matter before the probate court, take a court reporter with you to record the hearing and then transcribe the testimony if you need it.

Promissory Note Payable to Deceased Person

The Ninth District Court of Appeals recently held that a promissory note payable to a deceased person could be the basis of a suit by the estate fiduciary for recovery of the money. If the person you borrowed money from dies, do not think your obligation is over. Once the probate court appoints a fiduciary for the estate, that fiduciary can take action in court to collect what is owed, especially if the debt is documented in writing.

Uncertainty of Life Insurance Beneficiaries

The Fifth District Court of Appeals has recently added to the body of law regarding payment of money to a beneficiary because of the death of an account owner. Probate court does not get involved in these types of cases, but the issues are certainly related to what is decided in probate court. In this particular case, a life insurance policy had a beneficiary listed, but the policy owner sent a letter to the life insurance company indicating an intent to change the beneficiary to the name of her new husband, but she never filled out the form she was sent. The policy owner later remarried after being made a widow by the husband she wanted to indicate as the new beneficiary some years prior. Amazingly, even that husband died before she did. When she did die, uncertainty existed as to who she wanted to have the money. The court ruled that the trial judge had to find out who the policy holder really wanted to benefit. The change of beneficiary form no longer controls once a dispute has been filed in court and the life insurance company asks the court who should get the money. This holding also applies to other types of arrangements where money passes because of the death of an account owner or policy owner; i.e. life insurance, IRA’s, and pensions.

Punitive Damages Against Deceased Person

The Fifth District Court of Appeals has recently held that a deceased person can be held liable for punitive damages, and that the money owed could be collected against the deceased person’s probate estate. In what the court termed as a case of first impression in Ohio, it decided that the propriety of permitting a punitive damage award to be assessed against a deceased person made more sense than denying such a result. The court’s most compelling point, in this writer’s opinion, was that the beneficiaries of the estate should not get a distribution of money that survived going to a violated person simply because the wrongdoer died during the suit. It makes good sense to me. The court noted that if the decedent had not died the money would certainly have been owed.

Protecting Estate Assets and the Beneficiaries

Our own 11^th district court of appeals has just affirmed the lightning quick decision of the Geauga county probate judge to remove an executor who had a conflict of interest in and entanglement with the assets of the estate he was entrusted to administer. The former accountant of the decedent ended up being put on her bank accounts as a survivor beneficiary just weeks before she passed away and apparently while she was being administered morphine. The hundreds of thousands of dollars that would have gone to her beneficiaries ended up in his personal account. The attorney handling the interests of the beneficiaries had not even asked for the removal of the executor, to which the judge stated from the bench during a hearing on a related matter “Why the heck is he still the executor ? If you claim he took $440,000.00 from the estate before it became an estate, what’s your position on him staying as executor to begin with ?”

The moral of the story is stay on guard about who it is in a position of trust, and demand to see all of the paperwork backing up actions that are taken, and, above all, hire an attorney who doesn’t need to have the judge do the job the attorney should have been doing. A restraining order would have been the first item of business when the last minute signature card changes came to light. Don’t argue while the money is being consumed. Go after it immediately.

Good job to the judge and the court of appeals to strengthen the protections that need to be in place when individuals end up with all of the money who were not even provided for in the will.

Survivorship Deed – Tenants Rights

A decision was recently released by the Sixth District Court of Appeals regarding a survivorship deed and whether a conveyance by both of the survivorship tenants to a third party of less than the entire acreage in the jointly held property terminated their survivorship interest in the remaining acreage. The Court of Appeals held that such a transfer does not terminate the survivorship status of the remaining acreage. After the cotenants made the first transfer together, 25 acres of property continued to be held as joint with right of survivorship. Later, one of the joint owners sold only her share to a developer. The developer thought he owned her one-half interest. However, when that joint tenant died the other joint tenant recorded paperwork at the recorder’s office to cause the “transferred” jointly held interest to be registered in her name alone. The developer was in danger of of being frozen out so the developer claimed that when the two joint tenants conveyed part of their property, that their joint tenancy over all of the property was destroyed. The Court of Appeals said no. The same result would have occurred had the probate court been asked to rule on the issue. If A and B own 50 acres joint with right of survivorship, and they sell 25 acres to a developer, the 25 acres becomes the property of the developer but the other 25 acres remains as joint with right of survivorship between A and B. If A or B then tries to sell his or her one-half interest in the remaining 25 acres, he or she must get the agreement of the co-tenant holding right of survivorship. In this case, the developer paid for property for which it will never hold valid title. This is why title insurance policies are issued.

Corporate Entity Appointed Guardian of Incompetent Adult

The Twelfth District Court of Appeals for Butler County recently appointed a corporate entity as guardian of the person and estate of the adult son instead of one of his parents. The Court noted that both the mother and the father of the adult child were unable to control his actions. This is a case which is likely to be repeated as the groundswell of younger incompetent adult and semi-competent persons begin affecting public safety forces and public social service personnel. The diagnosis of autism cases is ballooning and those children are becoming adults. The son lived at home and was clearly incompetent but was capable enough to live at home with the oversight of his parents. However, the strong, young adult male easily overcame the physical ability of his aging parents to control him. This will be an area where there will be few answers. Young children can be controlled, but with the coming of adolescence and beyond, control of the physical behavior of stronger, younger individuals by their aging parents will fail.

Bank Accounts in Probate Court

The Fifth District Court of Appeals for Richland County decided a probate matter concerning joint and survivor bank accounts, transfer on death bank accounts, and general durable and health care power of attorney documents. The Court of Appeals applied a testamentary capacity analysis to execution of bank account documents and power of attorney documents. The Court of Appeals relied upon a 1928 decision of the Ohio Supreme Court to hold that a beneficiary designation on a bank account should receive the same standard of review as that of an execution of a Will. No other legal authority was supplied by the Court, but a reading of the Supreme Court case it cited shows that no reference exists in it to a beneficiary designation of bank account. On such an important probate matter, the Fifth District Court of Appeals should have provided supplemental citation to hold that testamentary capacity is all that is needed for proper execution of a bank beneficiary designation form or a durable power of attorney. Others would argue that contractual capacity is what is needed, which is a higher level of mental capacity than testamentary capacity.

Greece v. Galloway

Does inviting guest clergy to give an invocation at the opening of a public meeting violate the Establishment Clause of the 1^st Amendment? Not in the case of Greece v. Galloway in which the United States Supreme Court, by a 5-4 majority, held that the Town of Greece, New York did not violate the 1^st Amendment by opening its town board meetings with a prayer delivered by a local member of the clergy. The town’s practice was to invite local clergy members who were willing and available to attend a meeting. Although the clergy members delivering the prayers were all of Christian faith, it was the town’s practice to not exclude any faith, or even atheists, from delivering the opening invocation. The town further exercised no control over the content of the invocations. The Supreme Court rejected the argument that the Establishment Clause requires these opening invocations to be non-sectarian, however, the Court warned that a practice that denigrates non-believers or religious minorities, seeks converts, or which furthers some improper governmental purpose would likely not pass constitutional scrutiny.

Constructive Trust

The Third District court of appeals recently used one of my favorite remedies, the constructive trust. Ex-husband forgot to change the beneficiary designation from his ex-wife to his children after the divorce, but the court found that language in the separation agreement could be used to let the ex-wife get the proceeds just and only long enough for the court to place them in a trust for the children. Although this sounds like a probate case, it is not. Probate courts have limited jurisdiction and resort sometimes must be made to general division courts to deliver justice. Here, the probate court would be powerless to impose a constructive trust on the life insurance proceeds. Your attorney had better know when to choose correctly between probate court and general division court for the proper relief.

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