Legal Question in Wills and Trusts in Ohio

Do I have to go through Probate?

My sister died in 2006. When she died I moved in with her husband (my brother-in-law) to be his caregiver. I handled all the paperwork for him when my sister died.

In January 2007 he named me as the beneficiary on his life insurance policy.

In addition, papers were drawn up naming me as his Durable Power of Attorney for finances and a separate Durable POA of heathcare.

My borther-in-law had a car accident on 12/22/08. Using the POA I added myself to his checking account so I could pay the his bills as he wanted me to takeover those duties.

My brother-in-law died 1/11/2009 and I am handling all his paperwork.

He had two credit cards which had payment protection insurance on them and I have faxed the death certificate to them so those balances will be paid off. The remaining debts are his car and the house.

He had nothing of value only our combined household items.

My questions are:

1) Does the POA expire upon the death of the principal and

2) Since there are only liabilities (the car and house), do these items still have to go through probate? I am in Clermont County Ohio


Asked on 1/24/09, 11:57 am

1 Answer from Attorneys
Anthony Rifici Rifici Law Office

Re: Do I have to go through Probate?

I am sorry to hear about your losses.

1. Yes, the POA expires upon the death of the principal.

2. The existence of the liabilities / mortgage and financing liens on the house and car, does not determine whether or not probate is required. These liabilities may be claims against your brother in law's estate, and/or the property itself which is securing the loans, depending on the amount of equity in each asset.

Probate would be needed to transfer the legal titles on the house and the car to the proper person, said person being determined by his Will if he had one, or by Ohio's statute of intestate succession, Revised Code 2105.06. This person or persons could take the property subject to the mortgage, providing they can satisfy the lender they can pay the loan, or qualify for other mortgage arrangements, and pay of the first mortgage holder. Similar arrangements can be made for the vehicle.

If the situation is that the liabilities outstrip the equities and the person or persons cannot take on the debt associated with the property, then the assets would be sold during the probate to pay the creditors who have timely filed their claims, which is generally required within 6 months of the date of death.

You should discuss your specific situation face to face with an attorney, as there are situations where claims are not timely filed and the result can be that the creditor cannot collect the debt.

Best of luck to you.

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Answered on 1/24/09, 12:54 pm


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