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A Simple Comparison

(and How to Stay Out of It)

What happens when the person who would inherit from someone is also the person who caused that person’s death? It’s a strange and painful question, one most families never expect to face. I’ve been administering estates since the 1990’s, and one of the saddest and most gut-wrenching estates I’ve ever handled involved what Ohio calls the “Slayer Statute”. This is the law which prevents a killer from financially benefitting from the death that they caused. What Is Ohio’s Slayer Statute? Ohio’s slayer rule is set out in Ohio Revised Code Section 2105.19 . In general, it prevents certain people who caused another person’s death from benefiting financially from that death. The law applies to a person who is convicted of, pleads guilty to, or is found not guilty by reason of insanity for specified offenses: aggravated murder, murder, voluntary manslaughter, and certain forms of involuntary manslaughter. Substantially equivalent offenses under federal, other state, or foreign law are also covered. This is a specific legal rule, not a general determination that anyone who is suspected of causing a death is automatically barred. Which legal findings have been made, and how the statute applies to the facts, matter. So does the process for getting there. What Does “As If They Predeceased the Decedent” Mean? The central consequence is that the person barred by the statute is treated, for purposes of distribution, as though they died before the person whose death they caused. They do not receive the property or benefit they otherwise would have received because of the death. Instead, the property is handled as if that person had died first. Depending on the Will, beneficiary designations, Trust terms, and applicable law, it may pass to an alternate or contingent beneficiary, through a residuary provision, or to other heirs. For example, if a person’s Will leaves a share of the Estate to someone barred by the slayer statute, the next step is not simply to hand that share to another family member by assumption. The Will’s terms and Ohio law must be reviewed to determine who receives it. Below, we explain the basics of Ohio’s law and why this type of case requires careful legal guidance. The Rule Reaches Beyond Probate Property Ohio Revised Code Section 2105.19 is not limited to assets distributed through probate. It applies broadly to the decedent’s property and to money, insurance proceeds, property, or benefits payable or distributable because of the death. Depending on the asset and its governing documents, that may include Life Insurance proceeds, Payable on Death or Transfer on Death designations, joint and survivorship property, and Trust assets. The law also provides that a person who has obtained or controlled property or benefits in violation of the statute may be treated as a constructive trustee for those entitled to them. How Does the Process Work? The statute’s application is tied to specified outcomes in the criminal process. That means the Estate’s administration and the criminal proceedings may be underway at the same time, as they were in our case. Some Estate tasks may move forward, but when property could be affected, the Personal Representative or other responsible party must address the issue long before before making a distribution. Depending on the circumstances, that can involve the Probate Court, the terms of the relevant documents, and coordination with other proceedings, including criminal. A Real Case From Our Practice In the slayer statute estate that we recently managed, a very mentally ill child murdered his parent. This added multiple layers of complexity to an incredibly tragic situation. There was no Will, and so the daughter accepted the responsibility of serving as Administrator. She was grieving the loss of her parent, but also the loss of her brother to mental illness, and eventually prison. My entire firm instantly grew attached to this young woman, barely older than my daughters, out of both compassion for her circumstances and admiration for her ability to navigate this incredibly emotional journey with composure and grace. From a legal perspective, it was a long process. We opened the estate but then had to deal with the criminal component. At various times we had to put everything on hold when the young man had to be placed into a mental facility to force him to take medicine in order to make him competent to stand trial. This particular component of the case caused multiple delays, as he tended to drift in and out of competency. This also made certain notices required under Ohio law to be complicated, as we were never quite sure whether he was competent to understand what we were asking of him. One other complicating factor was the notoriety of the murder itself, as it received substantial attention in the press and on social media. Our fiduciary was harassed by the public, who seemingly had no compassion for her loss, and instead her family was vilified. Due to several incidents that made her afraid for her safety, we asked the Court to seal the probate estate records, so that no one could access any information about the estate. The Court was an absolute partner in this, and they quickly sealed everything from public view. In the meantime, while we waited for the outcome of his criminal case, we filed a Declaratory Judgment action in the common pleas division of Probate Court. What this means practically is that we asked the Court to determine whether the defendant could inherit under Ohio’s Slayer statute. We filed this, and then we waited, for a long time. Eventually the young man was tried, and convicted, of the murder. At that point, we filed a Motion for Default Judgment on the Declaratory Judgment complaint and attached the criminal court Entry finding him guilty. The Court granted the motion, and he was legally deemed to have predeceased his parent. This impacted not only the various probate assets, but all non-probate assets as well. So there was a lot of paperwork to distribute to all the various financial institutions still holding on to assets, as nothing could have been distributed before concluding this part of the process. His sister and brother inherited his share of the estate. The entire process took about three years. Compassionate Guidance Through a Difficult Estate An Estate involving violence can be especially painful and legally complex. Grieving family members may be dealing with criminal proceedings, questions about property and beneficiaries, and uncertainty about how the Probate Court will handle distributions. Clear guidance can help the family understand what needs to happen and avoid steps that could complicate matters further. At the Law Offices of Laura Blumenstiel, we help families navigate Probate Administration and Estate disputes with care and practical support. We offer virtual and in-person meetings, and payment plans may be available. If you have questions about an Estate affected by Ohio’s slayer statute, contact us to discuss your situation. Disclaimer: This article provides general information about Ohio law and is not legal advice. The outcome of a specific case can depend on the criminal proceedings, Estate documents, asset ownership, and other facts. Reading this article does not create an attorney-client relationship.

And Why It Might Be Right for You

Letting the State Decide Who Inherits is a Bad Bet

You have just lost someone you love. Along with grieving, you are now trying to handle practical responsibilities because the will names you as executor. You bring the will to the bank, expecting the process to be straightforward. Instead, the representative looks at the document and says, “We need your letters.” What letters? They are talking about your L etters of Authority, the official probate court documents showing that you have been legally appointed to act for the estate. Think of them as your executor’s “badge of authority.” The will may nominate you, but the letters are what prove the court has given you the legal power to manage estate property. What Are Letters of Authority? Letters of Authority are court-issued documents that identify the person legally authorized to administer a deceased person’s estate. That person is called a fiduciary . Depending on the circumstances, the fiduciary may be: An executor , who is appointed when there is a valid will; or An administrator , who is appointed when there is no will or when the named executor cannot serve. In Ohio, the probate court uses the official Form 4.5, "Entry Appointing Fiduciary; Letter of Authority " to document the appointment and issue the fiduciary’s authority. The form is more than a piece of paperwork. It is evidence that the court has reviewed the estate-opening documents, determined who should serve, and authorized that person to take appropriate action for the estate. How Do You Get Letters of Authority in Ohio? The process usually begins in the probate court for the Ohio county where the decedent lived at the time of death. If the decedent lived in Delaware County, for example, the estate would generally be opened through the Delaware County Probate Court. The exact filing requirements can vary by county, but the typical process includes the following steps. 1. File the Appropriate Probate Documents If there is a will, the original will generally must be submitted along with an Application to Probate Will , which is Ohio Supreme Court Form 2.0. You will also typically file Form 4.0: Application for Authority to Administer Estate . This application asks the court to open the estate and appoint the executor or administrator. The application generally includes information about: The decedent; The proposed fiduciary; The surviving spouse and next of kin; Beneficiaries named in the will; The estimated value of the estate; and Whether a bond may be required. Other documents may be necessary, but please know that local probate courts usually require additional, local documents. 2. The Court Reviews the Application The probate court reviews the will, if there is one, and determines whether the proposed fiduciary is eligible and suitable to serve. The court may also determine whether: Notices or waivers are required; A hearing is necessary; A bond must be posted; or Additional information is needed before the appointment can be completed. 3. You Accept the Duties Before receiving authority, the proposed executor or administrator generally must file an acceptance of the fiduciary duties. This is an important step because serving as fiduciary creates legal responsibilities to the estate and its beneficiaries. 4. The Court Issues Form 4.5 Once the court approves the appointment and all required steps are completed, it issues Form 4.5: Entry Appointing Fiduciary; Letter of Authority . That is the document you take to banks, financial institutions, title companies, government agencies, and others who need proof of your authority. When Will You Receive Your Letters? Letters of authority are not always issued immediately when a loved one dies or even immediately when you find the will. Typically, the court must first: Receive the required application; Admit the will to probate, if applicable; Review the proposed appointment; Receive your acceptance of duties; and Address any bond or notice requirements. Depending on the county, the court’s schedule, and whether the paperwork is complete, letters may be issued within several days or may take a few weeks. A missing document, an address problem, a required hearing, or disagreement among family members can add time. If you need access to an account urgently, ask the probate court or your attorney what steps are available. Do not assume that having the original will gives you the same authority as having court-issued letters. Why Do Letters of Authority Matter? Most financial and legal institutions will not rely on the will alone. Banks and brokerages typically require letters before allowing you to: Open an estate account; Access or close the decedent’s accounts; Transfer investments; Obtain financial records; or Deposit estate funds. Title companies and county offices may also require letters before allowing you to take action involving real estate. Insurance companies, government agencies, and other organizations may request them as well. As a practical matter, you generally cannot bind the estate, sell estate property, distribute assets, or pay ordinary estate obligations simply because you are named as executor. Your authority begins when the probate court issues the letters. There are limited circumstances where immediate action may be appropriate, such as arranging funeral expenses or taking reasonable steps to preserve estate property. For example, securing a vacant home, preventing damage, or protecting valuable property may be necessary. These limited steps are not the same as full estate administration, and you should be careful not to go beyond what is necessary before your appointment is complete. Practical Tip: Request Certified Copies When the probate court issues your letters, ask how to obtain multiple certified copies . You may need separate copies for: Each bank or brokerage; A retirement plan administrator; An insurance company; A title company; A government agency; or A creditor or other institution handling estate property. Many institutions also want letters dated within the last 30 to 60 days. This is not a universal rule, but it is common enough that you should ask each organization about its requirements before requesting documents. Having several certified copies can prevent delays and reduce the need to return to the probate court for additional paperwork. Remember: Letters Come With Responsibilities Letters of authority give you power, but they also create fiduciary duties. As executor or administrator, you may be responsible for: Identifying and safeguarding estate assets; Preparing an inventory; Providing required notices to creditors; Paying valid debts and expenses in the proper order; Keeping accurate records; Avoiding conflicts of interest and self-dealing; Treating beneficiaries fairly under the law; Filing required tax documents; and Preparing and filing an accounting when required. You cannot treat estate property as if it belongs to you personally. Even if you are the only beneficiary, you must follow the proper process and keep estate funds separate from your own money. If you are unsure whether an asset belongs to the estate, whether a bill should be paid, or whether you can sell or distribute property, pause before acting. A decision made too quickly can create personal liability or cause problems with beneficiaries later. We Can Help You Understand the Next Step Serving as an executor or administrator can feel overwhelming, especially while you are grieving. Letters of authority are an important first step, but they are only one part of the probate process. At the Law Offices of Laura Blumenstiel , we help families throughout Ohio understand their responsibilities and move through probate with greater clarity and confidence. We offer both virtual and in-person meetings, and payment plans may be available. If you need help opening an estate, obtaining letters of authority, managing estate property, or completing the probate process, contact our office to schedule a consultation. This article provides general information about Ohio probate law and is not legal advice. Probate requirements can vary depending on the county and the facts of the estate. For advice about your specific situation, consult a qualified Ohio probate attorney.

After a loved one passes away, families are often focused on grieving, making funeral arrangements, and handling the immediate responsibilities that follow. Then, sometimes weeks, months or even years later, a letter arrives - Ohio wants to be repaid for Medicaid benefits. This can feel frightening, especially when the family home is involved. Ohio’s Medicaid Estate Recovery Program, often called MER, allows the state to seek repayment for certain Medicaid benefits paid during a person’s lifetime. But the state does not automatically “take the house” simply because someone received Medicaid. Whether Ohio can recover, what assets may be affected, and whether an exception applies depends on the individual’s circumstances and the way the assets were owned. Here is what Ohio families need to know.  What Is Medicaid Estate Recovery? Medicaid Estate Recovery is the process Ohio uses to seek repayment from the estate of certain Medicaid recipients after death. Under Ohio Revised Code Section 5162.21 , Ohio generally seeks recovery in two situations: The recipient was permanently institutionalized in a nursing facility or another qualifying institution, regardless of age; or The recipient was age 55 or older when Medicaid benefits were received. Recovery may include payments for nursing home care, other covered Medicaid services, and managed care capitation payments. Capitation payments are the monthly payments Medicaid makes to a managed care organization on the recipient’s behalf. Importantly, those payments may be included even if the recipient used fewer services than the amount Medicaid paid to the managed care plan. This means the amount claimed may be larger than a family expects. Does Ohio Automatically Take the House? No. Ohio does not automatically take every house owned by a Medicaid recipient. Instead, the Ohio Attorney General’s Office may present a claim against the estate. If the estate has assets available to pay the claim, those assets may be used to satisfy it. If the home is the primary significant asset, the family may need to determine whether it can be retained, sold, or protected under an exception or hardship waiver. The executor or administrator of the estate has important notice and administration responsibilities. In general, the person handling the estate must notify the appropriate Ohio authorities, and the Attorney General’s Office may then submit a Medicaid estate recovery claim. This is why it is important not to ignore a letter from the Ohio Attorney General’s Medicaid Estate Recovery Unit. The letter may contain deadlines that affect the family’s rights. What Counts as the “Estate” in Ohio? This is the part that surprises many families. For ordinary probate purposes, people often think of an estate as the property that passes under a will through probate. But Ohio’s Medicaid estate recovery definition is broader. Under Ohio law, the estate can include: Probate assets; Real estate owned individually; Personal property; Property passing through joint tenancy Property passing through TOD or POD designations; Property passing under a survivorship deed; A retained life estate; Assets held in a living trust; and Other property in which the Medicaid recipient had a legal title or interest at death. In other words, simply avoiding probate does not necessarily avoid Medicaid estate recovery in Ohio . A survivorship deed, transfer arrangement, or revocable living trust may help with probate administration in some situations, but those tools are not automatically Medicaid asset-protection strategies. Ohio’s expanded definition of “estate” can reach certain non-probate assets, including the family home. We explain more about the difference between probate and non-probate property in our article, The Probate Puzzle: What Counts as a Probate Asset? When Is the Home Protected? Ohio law provides important protections in certain family situations. Recovery is generally delayed or prohibited while any of the following qualifying individuals is alive: A surviving spouse Ohio generally cannot pursue estate recovery while the Medicaid recipient’s surviving spouse is alive. This protection is especially important when the home is jointly occupied or the surviving spouse depends on the property for housing. A child under age 21 Recovery may also be prohibited while the recipient has a child under age 21. A blind or disabled child A child who meets the applicable definition of blindness or disability may provide protection at any age. A sibling living in the home For certain claims involving the recipient’s home, recovery may be delayed while a sibling lawfully resides there. A child who provided care A child may also qualify for protection if the child: Provided care that delayed the parent’s institutionalization; Lived in the home for at least two years immediately before institutionalization; and Continued living there afterward. These exceptions are fact-specific. Families should gather documentation showing residence, caregiving, timing, and the recipient’s medical or institutional history. What Is an Undue Hardship Waiver? Ohio provides a process for requesting an undue hardship waiver. A waiver may reduce or eliminate recovery if enforcing the claim would create a serious financial hardship for an heir or another person with an interest in the estate. Examples may include situations where: The estate asset is the heir’s sole source of income; Recovery would force the heir to rely on public assistance; Recovery would deprive the heir of necessary food, shelter, or clothing; The heir is financially dependent on the estate and is elderly or permanently disabled; or The heir made substantial financial contributions to the Medicaid recipient or the property. A reduced inheritance or a desire to receive more of the estate is generally not enough by itself. Ohio evaluates hardship requests on a case-by-case basis. Watch the 30-day deadline The hardship waiver deadline is critical. Under Ohio Administrative Code Rule 5160:1-2-07 , a request generally must be made within 30 calendar days after the Attorney General’s claim notice is mailed . That clock may begin on the mailing date shown on the notice, not the date you happen to open the letter. If you receive a claim notice: Keep the envelope and all pages of the notice. Note the mailing date. Read the instructions carefully. Gather documents supporting the hardship. Submit the request in writing and retain proof that it was timely sent. Consider speaking with an Ohio elder law attorney promptly. The Ohio Department of Medicaid generally has 60 days to decide a hardship request. If the request is denied or only partially granted, an appeal may be available, but additional deadlines apply. Planning Before Medicaid Is Needed The best time to consider estate recovery is before a crisis occurs. A properly designed Medicaid Asset Protection Trust, or MAPT, may help protect certain assets from future long-term-care expenses and estate recovery. However, these trusts must be created and funded correctly. They are not last-minute documents, and they can involve significant restrictions on control and access. The Medicaid rules include a five-year lookback period for many uncompensated transfers made before applying for long-term-care Medicaid. Transfers during that period may result in a Medicaid eligibility penalty. That does not mean every transfer is automatically wrong. It does mean timing and structure matter. A MAPT generally needs to be established and funded early enough for the planning strategy to work as intended. Other planning tools may include: Properly structured funeral or burial expense trusts; Thoughtful gifting strategies; Durable financial powers of attorney; Long-term-care planning; Reviewing beneficiary designations; and Coordinating the ownership of real estate and other assets. A funeral expense trust may be treated differently from an ordinary gift when it is structured to comply with Ohio Medicaid rules. It should be reviewed carefully rather than created through an informal arrangement. Why “Just Transfer the Deed” Can Backfire When a family learns that Medicaid estate recovery may affect a home, the first reaction is often, “Can we transfer the deed now?” A last-minute deed transfer can create more problems than it solves. Depending on the circumstances, it may: Create a Medicaid transfer penalty; Trigger questions about fair market value; Affect the recipient’s eligibility; Create tax consequences, particularly with respect to capitol gains; Cause loss of control over the property; Create gift or creditor concerns; or Fail to accomplish the intended protection. Intentional transfers made to avoid Medicaid recovery can also prevent an heir from qualifying for an undue hardship waiver. This is why do-it-yourself Medicaid planning and emergency deed transfers are risky. The right strategy depends on the recipient’s health, marital status, family structure, assets, income, home ownership, and timing. What Should Your Family Do If a Claim Arrives? If you receive an Ohio Medicaid estate recovery letter, do not assume the claim is automatically correct, or automatically avoidable. Start by reviewing: The recipient’s date of birth; Whether the recipient was permanently institutionalized; The dates and types of Medicaid benefits received; How the home and other property were titled; Whether a surviving spouse or protected child is involved; Whether a sibling or caregiving child exception applies; and Whether an undue hardship waiver may be available. You may also request information about the amounts included in the claim. Keep copies of everything you send and receive. At the Law Offices of Laura Blumenstiel , we help Ohio families understand how Medicaid planning, trusts, real estate, and estate recovery fit together. We offer virtual and in-person meetings, and payment plans may be available. You can contact our office to discuss your situation. Planning early can give your family more options. If a claim has already arrived, acting promptly may help you preserve the options that remain. This article is for general educational purposes only and is not legal advice. Medicaid eligibility and estate recovery rules are detailed, fact-specific, and subject to change. Do not rely on this article as a substitute for advice from a qualified Ohio elder law or estate planning attorney.

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