ESTATE PLANNING: What about all of my stuff?

It is interesting how sometimes the small things can have the biggest meaning to some people. While much of our estate planning practice focuses on managing the real estate a person has left or will leave behind, many of our clients are just as concerned about what will happen to their personal belongings. It makes sense, when one spends a lifetime accruing items, some given a special meaning or a personal attachment, it is natural to want to give those things to someone who will see those meanings as well. It is natural to think: “what about all of my stuff?”

This is a fascinating area of the law, because how personal property (your stuff) is dealt with in the realm of estates is more amorphous than with real property. The purpose of this article is to provide some background information to personal property’s role in probate and estate planning.

What is personal property? 

Sometimes, the easiest way to describe something is to say what it is not. Very roughly, personal property is most things that are NOT real property (i.e. your land and the house sitting on it). A slightly more detailed definition is that personal property is a right or interest in “movable things.”

Cash, cars, chairs, collectibles, clothes, computers (and many other things that do not begin with the letter “C”) are all examples of personal property. However, investment accounts, insurance accounts, and stocks are not considered personal property. Additionally, things that were at one time movable, but have now become affixed to a house or a piece of land (called “fixtures”), cease to be personal property. It is important to know the distinction of whether your property is on the real property side of the line, or the personal property side.  What side of the line property is on can change how the property will be handled in your estate.

Your Will will affect your personal property

The reason why managing personal property is sometimes difficult is that while real property or insurance can be set up to transfer automatically outside of probate, personal property rarely (if ever) transfers outside of the scope of a will. Further, most people do not go and specify to whom each little thing she owns will be distributed. That would take forever! Your will determines what will happen to the rest of your stuff when you pass away.

Specifically, how you designate your beneficiaries will determine how your personal property gets distributed to your descendants (or “heirs”). Option one: decide to split your estate into percentage shares between your heirs. That will mean that your heirs will be responsible for divvying up the property among themselves. Option two: you can delineate to whom certain pieces of property will be distributed, and then distribute the rest of the property (the “residual shares”) to your heirs to divvy up. There are more ways to distribute personal property, but these are two common ways it is done.

If you pick the first option, when you pass away, your lawyer (hopefully one from our office) will then sit down with your heirs, who will all have to agree on which items are going to whom. If they disagree, then the Court becomes involved. If the Court becomes involved, an appraiser will be appointed to try and determine the value of the property, and then the Court will order the property sold and distributed to the heirs by their percentage share. What a nightmare!

However, if a will is clear that person A gets property Z, then the executor must comply with the will and distribute that property according to the will. Even if the other heirs don’t want person A to have property Z. There are other issues which may prevent the executor from distributing the property as the will directs, but that is for a future article.

Things aren’t always as they seem…

While it might now seem like a good idea to be more specific about who you want to get your personal property, there are considerations with that strategy as well. For instance, let’s say you forget that you left a piece of property, a lamp, to your daughter in your will, and before you die, you accidentally give away your lamp to someone else. Your executor will have to treat the provision in your will about the lamp as though it never existed. Your will will say that your daughter should get the lamp, but there’s no lamp to give!

Generally, in probate matters, a rule of thumb is that what is best is what the person who made the will intended. If the lamp is gone, but your will says it should go to your daughter, we already know things are not going to be how you intended when you made your will. As lawyers we think — what else might you have changed your mind about? Although a lawyer or executor should always act in accordance with your will alone, and should only inquire into matters extrinsic to the will in extreme situations, questions of intent are still sometimes causes for concern.

So, when dealing with your personal property, you should ask yourself whether your heirs will be able to divide your property amongst themselves amicably. Also, you should ask whether your estate is fairly stable, and if you decide to allocate to whom specific items should go, make sure those items are going to be around until after you pass away. Schedule a consultation with us if you have specific questions as to which situation is best for your estate. Visit our website at veleylaw.com for more information.

What should I take away from this?

When you are planning your estate (or when you are the executor of someone else’s) it is important to know how your possessions are going to be distributed. Many times, the rules that apply to one type of property do not apply to another. This article should help you make a more informed decision with your attorney on how you would like your property distributed.

For the next article on this topic, I will go into more detail about the different pitfalls of making a will, expand upon the above information, and add more things you should keep in mind when making your will. I will also go into some of today’s hot button topics such as what to do with your Facebook photos, or how you can provide for your pets after you pass away. Stay tuned!

Landlord Alert: The "Citizen's Committee for Housing Rights"

I was at eviction court this morning when I noticed a man standing outside the Courtroom exit handing out literature.  My client and I made a point to casually stand near the exit to see what the guy was up to, and it didn't take long.  I didn't eavesdrop . . . all I had to do was stand a few feet away and listen as he pulled the recently evicted aside as they left the Courtroom and talked to them in a loud voice.  Here's a preview of what you can expect.

The guy's name is David Green and he claims to be affiliated with a group called "The Citizen's Committee for Housing Rights."   According to the Secretary of State's website, there's no entity or trade name filed in the State of Ohio.  In fact, the only information I was able to find about the organization was a 2013 story in the Newark Advocate, in which a group of seven people with signs reading "slum lord" picketed the private residence of a landlord to protest the conditions of his properties here in Newark.  In the picture, David Green is pictured third from the left. 

The Advocate story is posted here:  https://www.facebook.com/NewarkAdvocate/posts/10151654564341240

You got that right:  he'll picket your house, but he won't register with the Secretary of State so you know what this shadowy "Committee" is or who's behind it.

What Green told tenants he was handing out were, in his words, booklets advising tenants of their legal rights and an invitation to attend the "Committee's" meetings.  I didn't see the booklet to be able to tell you whether it's an accurate summary of the law, but that isn't the part that you should worry about:  the law is the law and we know how to help you avoid the pitfalls.  

However, Green is not just handing out pamphlets -- he's handing out legal advice and encouraging tenants to retaliate against landlords who evict them by reporting them to Newark's Property Maintenance department in between their eviction hearing and the time the bailiff arrives to set them out.

After my hearing, I approached Mr. Green and introduced myself.  He said he is trying to band tenants together, push for the licensing of landlords and for rental property registration.  I asked if he was an attorney and he says he is not.

Our firm is well versed in the bag of tricks tenants try in order to evade paying rent while remaining in your property.  The most common threat is to deposit their rent with the Court, but the threat is almost always a hollow one.  In the first place, if a rental property is unlivable a tenant can terminate the lease and vacate -- and why wouldn't they?  

Second, in order for a tenant to avoid eviction by depositing rent with the Court, a tenant has to deposit the entire amount due, and the problem usually isn't really a problem with the property:  it's a problem coming up with the rent.  If a tenant deposits less than the entire amount, or if a tenant later stops making payments to the court when they would have been due to you -- the case can be dismissed and you'll get all the money they did put up.

Third, even if your tenant has the money to deposit, there's a procedure by which you can make the repairs and apply to the Court for the release of escrowed money; if you can prove that repairs aren't necessary or have already been performed, the Court will release the money to you without having to do anything. 

The Mr. Greens of the world and I agree on one thing:  it's a good thing if everyone knows their rights and abides by the law.   Give us a call.  Your best defense against Mr. Green is to know your rights as a landlord and to do things correctly.

Home Ownership for Unmarried Couples - Part Two

Note:  the first part of this series can be found at http://ohiolegalnotes.blogspot.com/2015/02/home-ownership-for-unmarried-couples.html

In the first installment of this series, we discussed ways we help unmarried couples enjoy the same sorts of rights as married couples with respect to real estate.  Now, we'll examine some of the issues that come up, usually when the relationship is at or near its end.

When you bought the house together

Assuming both of you have sufficient good credit, there's no reason the two of you didn't buy a house together and sign the loan together, just like a married couple.  There are two documents you should look at to determine what your rights and obligations are:  your deed (see http://ohiolegalnotes.blogspot.com/2015/01/do-you-know-who-owns-your-house.html), and the promissory note ("note" for short), which is the document which begins with the words "I promise to pay . . .."  The deed will tell you who owns the house, and the note will tell you who has to pay for it.

Everybody who signs a promissory note to a bank is jointly and severally liable to make the payments.  This means if you are one of the people who signed the note, the bank can require you to pay the entire obligation, regardless of whether the two of you are still together or whether you still live in the house.  There is no "rule of halvsies" -- your lender is not obligated to accept half of the payment from either one of you.  If the payments aren't made in full, regardless of what your understanding is with each other, your credit will be severely damaged. 

We still see people who have quitclaimed their interest in the property ("signed over the deed") to a former significant other at the end of the relationship, thinking that by taking their name off of the title they are no longer responsible to pay for it.  That's not true and it's the worst thing you can do.  Once you give up your interest in the house, you also give up a lot of leverage you'll need to protect any equity you've built up and your credit.  Stay in title and make sure the payments continue to be made -- once the house is refinanced or sold, that's the time when it's ok to sign a deed.

If one of you is moving into a house the other already owns.

Again, it's important to check the deed to see whose names are on it.  Before you make significant investments in your partner's home,  you'll want to be clear whether former spouses or others still have a record interest in the property.  If they are, it might be a simple oversight that we can help correct; however, it might also indicate that the other people on the deed still have rights in the property.

If you are planning to make a significant up-front investment in your partner's house -- for example, to make repairs or to catch up payments on a mortgage -- we can do either a lien search (to reveal record liens on the property from the time your partner acquired title) or a full title examination (to reveal anything of record affecting marketable title).   A little planning now can avoid a lot of aggravation -- and potentially save you a lot of money -- down the road.

Assuming that you are moving in together for the long haul and both of you will be contributing financially to the household, it's a good idea to have a conversation about what each of your expectations are.  If you agree on how much the person moving in is contributing and that you want that person's financial investment to be protected, there are a couple ways to approach the issue.

One approach is to enter into a roommate agreement.  We aren't suggesting that the host needs to be like Sheldon Cooper on The Big Bang Theory, but a basic understanding of what you each expect to pay for (and on the flip side, get reimbursed for if things don't end well) might save the two of you a lot of aggravation later on.

Another option is for the host to sign the equivalent of an open-ended line of credit agreement and record a mortgage to protect whatever the party moving in pays towards the household expenses.     Like a reverse mortgage, the balance would increase as the person moving in makes contributions.  The real beauty of this planning technique is that the person moving in is only secured to the extent you have agreed, and only to the extent they have actually contributed.

The mortgage option is not only helpful in protecting your interests between each other, it protects the investment a person moving in makes from other creditors of the homeowner.  For example, if the person moving in has contributed $10,000 which is secured by this mortgage, it would have priority over a judgment later filed against the homeowner. 

This option also protects the investment if the homeowner dies and doesn't provide for the person moving in by will, transfer on death affidavit or other means.  While the homeowner's named heirs may inherit the home, it will remain subject to the repayment of the balance due -- an amount that could provide a nice down payment somewhere else should the other person have to move.

Whether or not to add your significant other to your deed.

It might seem easier to just add your new significant other's name to the deed than to take the steps outlined above.  However, here are some things to think about before you do:

• If there's already a mortgage on the house, most mortgages contain a due on sale clause, which provides that if the homeowner conveys any interest in the property, the lender has the right to declare a default and foreclose.   Ask first, and if your lender won't consent, you can always refinance the loan into both of your names, recording a deed to put the home in both of your names at the same time.
• Think carefully about how you want to hold title:  as tenants in common or in survivorship (for the difference, see my previous article at http://ohiolegalnotes.blogspot.com/2015/01/do-you-know-who-owns-your-house.html).
• Whatever interest you give to your significant other is a completed gift effective when you record the deed -- regardless of whether the relationship works out down the road.  If the new deed is simply from you to the two of you, you've given away half of your house, effective immediately, no strings attached.

If the significant other doesn't bring anything to the table financially, adding them to the deed might also add their financial problems.  Consider a transfer on death affidavit to make sure they have a place to live after you die, because a transfer on death affidavit doesn't create any present interest in the property and you can change your mind later if things don't work out.

It's never too late to agree.

While it's usually much easier to clarify your understandings at the outset, there's nothing that says the two of you can't come to an agreement later on -- even years after moving in, and even if the relationship is in decline or over. 

Who might have the upper hand in the event of a dispute is going to depend on a lot of factors, such as how much the person who moved in can prove they invested and whatever evidence a person can produce to prove that there was an understanding that those amounts would be repaid if things don't work out. 

Of course, whenever a lawyers says "it depends," that gets expensive. The more money that is in dispute, the higher the stakes are and the more sense it makes for the parties to come to an agreement and move on.

Home Ownership for Unmarried Couples - Part One

Moving in together or buying a home together is a big step

Short of getting married, moving in with your significant other is the biggest step you will probably take in your relationship.  Both of you will call it "home" and you'll be building a life together there.

The State of Ohio, however, views things differently.  When it comes to real estate, Ohio recognizes only two kinds of people:  married and unmarried.  If two people aren't married and they share a home, it doesn't matter whether they have been together for fifty years -- the rules are no different than two strangers who just met and bought a house together on a whim. 

This can present problems for people who are in a relationship but who are not married to each other, but most of those problems can be avoided with a little bit of planning.  We can help.

Ohio law favors married individuals.

If you are married and either you, your spouse or both of you own real estate, Ohio law provides protections for spousal rights, both during the marriage and when the marriage ends, in the form of dower, estate rights and divorce/dissolution laws. 

Before we think about how we can give you those same sorts of protection, let's review how things work for married couples. 

1.  Dower:  What being married means when it comes to your real estate.

In Ohio, if you are married you have a dower interest in your spouse's real estate, and they have a dower interest in yours.  Dower is a centuries-old concept originally designed to protect women from being excluded from their husband's homes, and provides that each spouse has a life estate (the right to live rent free for the remainder of your life) in one-third of the other spouse's real estate.  In medieval times, this meant if a man owned 30 acres and kicked out his wife, she would be entitled to live on 10 of them rent free for the rest of her life. 

The concept survives in Revised Code Section 2103.02.  Dower rules (in the probate code as well as in Chapter 5305, the title relating to real estate) are complicated, antiquated, and rarely invoked, but discussions to abolish it usually end as quickly as they start.  Like the paper dollar bill, for whatever reason people still think it makes sense to hold onto it.

A married person can still purchase real estate in their individual name, but in order to mortgage, sell or grant any other rights in that property, their spouse will need to sign the deed, mortgage or other document as well.  This is called releasing your dower interest, and it effectively prevents either spouse from mortgaging or disposing of property without the other's knowledge.

2.  How Ohio protects married people when one spouse dies.

If a married person dies, surviving spouses have significant rights which in most cases assure that they will inherit a significant part of your estate.  Among these rights are the rights to apply for an allowance for support, the right to live in the "mansion house," and the right to elect against the will if their spouse's will didn't adequately provide for them. 

3.  The other way marriages end:  divorce and dissolution

When things don't work out and a couple files for divorce or dissolution, the Court will divide the marital property of the parties, including real estate either of them acquires during the marriage. 

Real estate which one spouse or the other owns prior to the marriage (and which is still titled in that spouse's name) may be deemed separate property, meaning that the other spouse has no interest in it; however, if the other spouse contributes money or property to the home, the Court may impose an obligation to reimburse a party for those expenses.


How we duplicate marital rights for unmarried couples.

The protections described above only apply if you are married.  The law won't protect you if you aren't married and one of you dies or the two of you decide to split up.  That doesn't mean you can't protect yourselves, and we can help.

1.  Unmarried "dower." 

As explained earlier, dower is mostly an outdated concept, but there are some valuable aspects of it:  first is that neither spouse can effectively convey or mortgage their separate interests.  Second is the idea that neither party can be left "out in the cold."

Since any two parties can sign an agreement which outlines the rights of the parties, we recommend cotenancy agreements for unmarried parties who own real estate together.  These agreements, which act like a sort of partnership agreement, can specify the rights of the respective parties to give each the best (and avoid the worst) components of dower.  For example, these agreements can specify:

• That neither party can sell or mortgage their interest without the other's consent;
• That neither party will file a partition action;
• That if you decide to call it quits, that the property will be sold or either will have the option to purchase the other's interest;
• How much to compensate either party if the relationship ends.

2.  Mimicking a surviving spouse's rights upon death.

Since significant others have no rights to their partner's estates upon death, without some planning the survivor will become partners with their significant other's family.  The simplest way to avoid this is to write a will designating that your real estate is to be distributed to your significant other, but there are some problems with relying solely on a will:

• Creditors of your significant others can force the sale of the real estate to pay debts;
• Family members of the deceased have the right to contest the will (rare but it does happen);
• Wills do not become public record until a person dies, and it is the most recent will which will be admitted.  We have seen cases in which significant others have been very disappointed at what the will actually says.

A will is a good idea anyway, but there are some additional tools that better protect a survivor's interest, including:

• Provisions in a cotenancy agreement providing that either party has the option to purchase the other's interest upon death;
• Survivorship language in your deed (this avoids the estate entirely);
• Transfer on death affidavits (this also avoids the estate);
• Mortgages to protect a non-titleholder's cash investments.

There's an infinite number of ways we can help structure this for you; a face-to-face conference is the best way to determine which option or options are best for your situation.

3.   Don't plan to fail . . . and we aren't talking about the relationship

Some couples enter into antenuptial (prenup) agreements before they get married.  This doesn't necessarily mean they are planning for the relationship to fail -- in fact, we find that the possibility of divorce is only one of the reasons people consider them.   Couples also are interested in making sure the financial part of their marriage is clearly defined, both with each other and with each other's separate families. 

With prenups, the catch is that you have to enter into them before you are married or they aren't valid.  This is one instance in which unmarried couples have an advantage, because you can enter into any agreement relating to your real estate at any time, as long as there is consideration (something bargained for) by both parties -- even if you already own your real estate together.  Provisions in a recorded cotenancy agreement can save both of you an additional layer of pain in the event the relationship ends while you remain co-owners of real estate together.

To quote an old cliché, failing to plan is planning to fail.  If the two of you can't openly discuss the financial aspect of your relationship and what your expectations are if for whatever reason the relationship ends -- we recommend you rethink the relationship.


Planning ahead doesn't have to kill the mood or your bank account.

If the suggestions in this article throw a damper on the moment for you, it might -- particularly if you are in a relationship with someone who is looking to take advantage of you.  That would be good information to have now rather than later.

However, if you are in a mature, caring relationship, taking the steps outlined in this article can protect both of you.  The cost of planning ahead is insignificant when compared to the money you could lose if things go wrong or one of you dies.

Whether or not you eventually decide to get married, protecting yourselves and your investments in the most valuable asset most people will ever own is a good start to building your life together.


Coming up:

This is the first in a series of these articles.   Future installments will address:

• Tips and myths for couples planning to buy a house together, or when one of you is moving into the other's house.
• Why I haven't mentioned trusts and LLCs as a possible planning tool.

Who Are Your Next of Kin: Recent Law Highlights the Importance of Writing a Will

It is a common misconception is that if you don't have a will, the State of Ohio inherits your estate -- the legal term for this is "escheat."   It's more accurate to say that if you don't have a will, the state writes one for you: the law provides your estate will be distributed to your next of kin, and Ohio's statute of descent and distribution -- Revised Code Section 2105.06 -- specifies who those people are.

The statute provides complicated formulas for dividing estates between surviving spouses and children in blended families, and stepchildren are next to last on the list (the complete pecking order is found at the end of this article).

In addition, if any of your children are under the age of 18, the law doesn't provide for those children's shares to be held in trust -- courts instead require the costly appointment of a court-supervised guardian to hold onto those shares, turning over that inheritance only as your children turn 18.

Writing a will avoids these complications -- as well as another, extremely rare problem our Ohio General Assembly recently tried to fix, but instead created a whole new mess in the process. 

Senate Bill 207 added a new section to the code, Section 2105.062, effective on March 23, 2015.   Previously, if a person died without a will, leaving no surviving spouse and no children, the law provided that a person's estate would be distributed to parents, then to brothers and sisters, then to grandparents, and then to the lineal descendants of grandparents.

The new law creates an exception to this rule:  section 2105.062 provides that a parent, or a relative of a parent, cannot inherit from the child if the child was conceived due to the parent's violation of laws prohibiting rape or sexual battery.    

You heard right:  for the 212 years that Ohio has been a state, if your were conceived by rape, and you died without a will leaving no spouse or children, the rapist would inherit half of your estate.   While it's better late than never that this loophole is closed, the legislature's poor choice of wording may open a new and grisly can of worms. 

Note that the new law uses the word violation, not conviction.  Suppose a child were to pass away with a sizeable estate, leaving two divorced parents who despise one another.  Could the mother argue that the father doesn't inherit half the estate because the encounter that led to their child's conception wasn't consensual -- even if no charges were ever filed? 

Yes.  And the Probate Court would have to decide, decades later, whether the fathering of a child was the result of rape or sexual battery.

To my knowledge, there was no rush of cases motivating our legislators in which rapists were rewarded with an inheritance.  However, the lessons are clear:

1.  The State of Ohio has the authority to decide who inherits from you if you don't write a will, and

2.  The State of Ohio has made and will continue to make terrible decisions for you.

Don't trust the State of Ohio to write your will.


A SUMMARY OF OHIO'S STATUTE OF DESCENT AND DISTRIBUTION:

1.  If you don't have a surviving spouse, to your children or their lineal descendants (the law states "per stirpes," a legal term which I'll discuss in a future article).

2.  If you have both a surviving spouse and children, it's complicated.

     a.  If all your kids are also your spouse's kids; everything goes to the spouse.

     b.  If you have one kid who isn't also your spouse's, your spouse gets $20,000.00 plus one-half of everything else, and your child gets the rest.

     c.  If you have more than one kid but only one is also your spouse's, your spouse gets $60,000.00 plus one third of everything else, and the kids split the rest equally.

     d.  If you have more than one kid and none of them are also your spouse's, your spouse gets $20,000.00 plus one third of everything else, and the kids split the rest equally.

3.  If you have a spouse and no children, your spouse gets everything.

4.  If there's no spouse or children, to your parents or the survivor of them.

5.  If neither parent survives, to your siblings (including half-siblings).

6.  If there are no siblings or half-siblings, half to your paternal grandparents or the survivor of them, and half to your maternal grandparents or the survivor of them.

7.  If there are no paternal grandparents surviving, one-half to their lineal descendants (aunts and uncles, then cousins and second cousins).  If there are no maternal grandparents surviving, one-half to their lineal descendants.

8.  To your stepchildren.

9.  To the State of Ohio.

Do You Know Who Owns Your House?

In most cases, your house is one of the most valuable assets you own; that's why I routinely ask clients how their house is titled when they come in to discuss putting together or revising an estate plan.  

Surprisingly, more often than not, clients don't know. 

Here are the five most common ways people usually hold title to their residence:

1.  Sole ownership.  For homeowners who are unmarried, title is usually held only that person's name.  Sometimes, when another person such as a parent or significant other cosigns on the loan to buy this house, either the cosigner or the lender may require that the cosigner also be "on the deed" as a joint titleholder. 

If you have married since you bought your home, your new spouse does not automatically become a co-owner of your home; however, your new spouse would acquire a "dower interest" in the residence, and his or her signature would be required if you want to refinance or sell your property in the future.  If you die and your property is still titled in your name as the sole owner, your residence would become a part of your estate and it (along with any other assets in your estate) would need to be probated.  A judge's signature on a Certificate of Transfer at the conclusion of your estate will convey the property to your heirs, assuming there are sufficient assets to pay all of the debts of your estate.

2.  Tenants in common.  If your deed says "to Mr. Smith and Mrs. Smith," and there are no words after that to designate you deed as a survivorship tenancy, you have what is known as a tenancy in common.  If your most recent deed was recorded prior to 1986, this is probably what you have.  After then, tenancies in common were created for estate tax planning or more often, by oversight. 

If you hold title with another person or persons as tenants in common and you die, your fractional interest will become part of your estate and your estate would need to be probated to administer it.  Just as with sole ownership, title would be transferred to your heirs at the conclusion of your estate.

3.  Survivorship tenancy.    If your deed says "to Mr. Smith and Mrs. Smith, for their joint lives, remainder to the survivor of them," you have a survivorship deed.  For husbands and wives, based on current estate tax laws (and assuming they plan to remain married and are the primary beneficiaries of each others' estates), this is probably the best way to hold title to your home. 

In a survivorship tenancy, title passes to the survivor upon the death of one survivorship tenant to the other or others -- you can have more than two people on a survivorship deed.  When a survivorship tenant dies, an affidavit accompanied by a certified copy of the death certificate is filed in the Recorder's Office where the real estate is located, and nothing further is required to transfer title.  There may be other assets which still need to be probated with the Court, but your home will not be one of them.

4.  Transfer on death.  Ohio recently enacted legislation which allows owners of real estate (including sole owners, tenants in common or survivorship tenants) to file an affidavit designating a transfer on death beneficiary.  The first version of the legislation provided that this would be done by a "transfer on death deed," but that was later changed.  If yours is a "transfer on death deed," please let us know and we'll review it to be sure it was done correctly at the time it was executed.

Like a survivorship tenancy, if you have one of these, no probate court approval is required when a person dies and a transfer on death designation affidavit has been filed; all that is required is an affidavit confirming the fact that a titleholder has passed.  However, unlike a survivorship tenancy, a transfer on death beneficiary has no rights in the real estate until the person dies; and the person signing the affidavit can change beneficiaries or revoke them as often as desired.

5.  Ownership in Trust.  If you hold title as a trustee, there is an underlying trust agreement that specifies what you can and cannot do with the real estate.  These were used primarily for estate planning purposes.  In future articles, I'll be discussing the pros and cons of trusts.  For now, suffice to say that if you hold title to your home as a trustee, I recommend a checkup to see whether that still makes sense -- or if it ever did.

How do I find out what I have?  Of course, we are happy to retrieve a copy of your deed for you, but you can just as easily do it yourself.  In most counties, you can look at your deed online and at no cost.   Check out the "county offices" page on my website, which provides links to the different county recorder's offices.  Here are the links for the search pages in Franklin and Licking Counties:

Franklin County:  http://recorderweb.co.franklin.oh.us/Rec/default.asp

Licking County:  http://lcounty.com/recordings/

How do I know if what I have is what's best for me?  As I mentioned at the beginning of this article, a person's home is frequently their most valuable asset.  That's why how you own your property -- who controls it while you are alive, and who gets it and how after you pass -- is usually the single most important consideration as you plan for the future.   

Lawyers make more money when people don't think about these things before someone dies.  In my experience, mistakes happen most commonly:

• When non-lawyers write their own deeds.
• When title agencies make assumptions.
• When divorce lawyers dabble in real estate law, and
• When circumstances (personal and legal) have changed and people forget to make updates.

If you need help figuring out what you have, or figuring out whether what you have is right for you, give us a call.

Landlord update - the tenant switch

Tenants who don't want to pay their landlords often talk to each other and share their "tricks of the trade" -- methods they use to prolong their unpaid stay in their landlord's apartment.

Here's how this latest trick works:  after the eviction is held and the writ of possession has been issued ordering your tenants to leave, the tenants will invite other people in to stay.  When the bailiff arrives to conduct the setout, whoever is there will argue that they don't have to leave, because they weren't named in the eviction complaint.

Believe it or not, some officials are buying this argument and refusing to remove these squatters from your property.

It has been our usual practice to add an additional "all other occupants" defendant to our eviction complaints whenever we suspect that others may be living there (or might be living there by the time the eviction comes to a head).  However, in light of this latest trick, we are always adding this additional defendant.   Here in Licking County, this will cost an additional $10 in Court costs; however, that is a small price to pay when compared to losing an additional month of rent in order to evict a squatter.