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Maumee Ohio Legal Blog

Estate planning and the ancillary probate process

To many Ohioans, estate planning is nothing more than creating a simple will that equally divides their assets amongst their children. Although this is a commonly utilized estate planning strategy, it may be insufficient to meet an individual's needs. Failing to adequately address all legal issues pertaining to one's estate can lead to a long, drawn out and even contested distribution process.

This is often seen when individuals neglect to consider the assets that they own in another state when creating or modifying their estate plan. Because assets are subjected to the laws of the state in which they reside, an individual who passes away with assets in multiple states will have to proceed with the probate process in each state. This is known as ancillary probate, and it can be costly and time consuming. Additionally, those individuals who die without a will may wind up with differing lines of succession in each state because the laws may vary. This may mean that an individual's out of state assets may fall into the hands of someone who was never intended to inherit in the first place.

Understanding eminent domain law

When we own property such as land, we will likely have an assumption that no one can legally take this property away from us. This is a reasonable assumption, but it does not always hold true. Under certain circumstances, the government is entitled to take property from private owners.

The power of the government to take property from private owners is known as eminent domain. There are specific laws in place that govern the eminent domain process. Most notably, the Fifth Amendment to the U.S. Constitution outlines a "Takings Clause" which demands that the federal government provides just compensation to those who have their private property taken for private use. The following is an outline of the limits of eminent domain property seizure, and an overview of the rights of private owners.

Litigation and hearsay exceptions

There are many trial rules and rules of evidence that must be adhered to in order to successfully litigate a case. Those who fail to abide by these rules can see their evidence given less weight, their evidence excluded or even their claims dismissed.

Those who are about to engage in litigation need to ensure that they have a full understanding of these rules and how to use them to their advantage. For many Ohioans, this often means seeking the assistance of a skilled litigation professional.

Business litigation: be prepared for wage and hour claims

There are a lot of ways in which a business can find itself embroiled in litigation. Unfair and deceptive trade practices, product liability and breach of contract disputes are common. While these legal actions can threaten the financial well-being of a business, as well as its reputation and good will, consumers and employees can also be negatively impacted when a business fails to act in accordance with the law. This is why all parties to a business dispute should make sure that their interests are aggressively protected throughout the legal process.

This may be especially true when wage and hour claims arise. These types of legal actions often come to light when a business is accused of underpaying or misclassifying employees, thereby unfairly taking advantage of them. Many of biggest corporations have faced lawsuits dealing with unpaid overtime and misclassification of employees as subcontractors, but the truth of the matter is that these lawsuits are often quickly settled with very little harm caused to the business in question.

Steps to take if threatened with eminent domain

The Fifth Amendment to the United States Constitution gives federal, state and local governments the right to take private property for public use by providing the owner with “just compensation” for their property. Fighting eminent domain proceedings is challenging, but homeowners still have rights.

Property owners can argue that the taking of their land is not in the best interests of the public or that the compensation they are offered does not meet the “fair market value” promised under Ohio law.

A living trust in an estate plan may avoid ancillary probate

Effective estate planning requires a certain amount of thoroughness and understanding of the law. Only by being diligent and holistic in your approach can you ensure that your estate will be distributed exactly how you want it to be. Those in Ohio who try to cut corners to save time and money during the estate planning and administration process may have their assets pass into the wrong hands, thereby failing to provide for their loved ones as they wished.

Mistakes are often made during the estate planning process that can be disastrous. One commonly seen issue pertains to ancillary probate. Ancillary probate laws pertaining to the inheritance of property when a person has real estate in two different states at the time of their death. Therefore, an Ohio resident who has a home in Ohio and, say, a home in Florida may have his or her estate subject to the probate process in both states. This second probate is called ancillary probate.

Eminent domain threatens Ohio farmers' lands

Ohio residents enjoy the control they retain over their property. Yet, in what seems like the blink of an eye, the government can swoop in and try to claim that property for its own use through eminent domain. Of course, there are restrictions on when the government can do this, as it has to be in furtherance of the public good. Additionally, the government must give the landowner fair compensation for the land that is being claimed. These matters may seem pretty straightforward, but they give rise to a lot of contentious litigation.

A group of farmers in Mahoning County in eastern Ohio may be in this position now. There, the local government is relying on eminent domain to expand a bike path that runs along an old railway line. Many of the farmers feel that the move is encroaching not only upon their ability to farm and raise livestock, but also upon the peace and quiet they sought when purchasing their property. One state representative stated that this use of eminent domain is prime example of government overreach. Although one farmer was offered more than $35,000 for access to his 6.5-acre property, the farmer is concerned about how the bike path would affect his ability to run his business, which would essentially be split into two parts.

A primer on unfair competition

Business professionals in Ohio can find themselves embroiled in a whole host of legal issues. Contractual disputes, intellectual property misappropriations and product liability complaints can all threaten a business's financial status and its reputation, possibly leading to business litigation. Therefore, businesses need to understand the law and how to use it to their advantage.

One area where this knowledge can be crucially important is unfair competition. In a quickly moving economy, businesses need to be on the front line of change to meet market demand and keep pace with their competitors. Although most competition is healthy for businesses and the economy, unfair competition harms consumers and cheats other businesses.

Estate planning and the charitable trust

The estate planning process can be customized to meet your needs. If you simply want to ensure that your assets are evenly divided amongst your children, then a simple will may suffice. If you want to place conditions on the release of those assets and ensure that they provide long-term financial support, then one or more trusts may be of use to you. Even if you want to "disinherit" someone, then your estate plan needs to clearly indicate that intent.

Some Ohio residents find themselves wanting to give back to their communities and further the public good. An estate plan can help with this, too. A charitable trust allows assets to be invested for the benefit of a named charitable organization while allowing named beneficiaries to still receive income from those investments. That income may be in the form of a fixed dollar amount or a percentage of the trust's value.

The interplay between litigation and summary judgment

Litigation is often seen as presenting eloquent legal arguments to a judge and jury and utilizing skilled questioning to elicit wanted information from witnesses. While this does make up a significant portion of litigation, it is just the culmination of thorough preparation. Without this preparation, one's presentation in the courtroom is sure to be less than stellar.

In fact, courtroom litigation can often be avoided by bringing a case to quick resolution. This is often accomplished through negotiation, but it can also be achieved through pretrial practices. One such tactic is to seek summary judgment. Summary judgment occurs when a court find in favor of one party prior to trial, but it can only be obtained to pretrial motion and if certain elements are met. First, there must be no dispute as to the material facts at play. Second, given the undisputed facts at hand, the party seeking summary judgment is entitled to that judgment as a matter of law.

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