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Elliott Lee Stapleton
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Elliott Stapleton’s Answers

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  • If someone passes away without changing their beneficiary, and that person is an ex spouse doesnt the predeceased clause stand?

    A parent passed away 6 months ago and my brother and I have been fighting our mom on 2 policies because our dad didnt want anything left to his ex. He told his sister, his father, me and my brother she was to get nothing. We were going to get paid...

    Elliott’s Answer

    In Ohio, there are two potential ways an ex-spouse can receive death benefits if designations are not updated:

    Life Insurance Beneficiary Designations prior to May 31, 1990

    In Ohio, upon divorce, ORC 1339.63 operates to automatically revoke a spouse as beneficiary to an insurance policy if owned by the other spouse. But the effective date of this statute began on May 31, 1990.

    Any person who owns an insurance policy created before May 31, 1990 must review his or her documents to ensure they are up-to-date. If the ex-spouse is listed at death, they will receive the benefits. In re Estate of Holycross 112 Ohio St.3d 203, 204 (2007).

    Beneficiary Designation in an ERISA plan

    The United States Supreme Court has held that a deceased participant’s benefits under an ERISA pension plan were properly distributed to decedent's ex-spouse beneficiary.

    This distribution was made even though the ex-spouse waived all rights to the plan in the divorce decree and state law, which was preempted by ERISA, would have removed the ex-spouse from the designation. Kennedy v. Plan Adm'r for DuPont Sav. and Inv. Plan, 129 S.Ct. 865, No. 07-636 (2009).

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  • Who would get the house? we each have 3 grown children from prior marriage

    I am not on the mortgage, and there is no will. We both had been widowed . The house had been purchased during his 1st marriage but He recently refinanced the house and I am not on the mortgage and there is not a will. Just wondering if somethi...

    Elliott’s Answer

    A surviving spouse has a right to elect against the will and to take the share he or she would have been entitled to if there was no will. If for example, the will left the estate to a trust and excluded the spouse, the spouse could take one third of the net probate estate if the decedent had two of more children.

    The Probate Court issues a citation to the surviving spouse when the will leaves the spouse less than the testamentary share. The spouse has five months after the appointment of the executor to make the election.

    A spouse has the right to stay in the house for one year without paying rent. A surviving spouse has the right to purchase the house from the estate at its appraised value.

    In addition, the surviving spouse may take the house as a part of his or her intestate share and the family allowance. If for example, the spouse’s share of the estate was $100,000 and the house is worth, $60,000. The entire house can be taken by the spouse as a part of the $100,000 share.

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  • How do I get a court order granting a waiver of administration ?

    Mom passed three years ago. To receive funds from a life insurance policy the company requires a court order granting a waiver of administration. The will was not probated

    Elliott’s Answer

    In Ohio, if a life insurance policy has a living beneficiary, payment of the policy avoids probate. Any life insurance policy that does not have a living beneficiary, designated at the time of the insured’s death, must be transferred through Probate.

    This transfer would be pursuant to the Will or, if there was not a Will, to the heirs at law. To follow the proper court procedure thereby limiting the risk an Executor will be sued by the heirs, beneficiaries, or creditors of the Estate, it is best to hire a Probate Attorney.

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  • What happens if you die without updating beneficiaries of an IRA, and one of the beneficiaries is deceased?

    Does it go through probate, or do the heirs of the deceased beneficiary inherit that share?

    Elliott’s Answer

    Generally, if there is no living beneficiary for an IRA the account would go through Probate. If there is one deceased beneficiary and one living beneficiary the benefit plan will dictate the outcome; as noted by the previous answers.

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  • What happens if a beneficiary has been considered dead for purposes of inheritance and theres no others and no estate?

    My parents divorced a year before my mother passed and he was the beneficiary, then i alerted the life insurance policy and in one of them. The children were the beneficiaries on one of the policies, but on the other there weren't any so they said...

    Elliott’s Answer

    In Ohio, divorce will sever rights under a life insurance policy unless the policy falls within one of the limited exceptions. Here is an article on some of the exceptions to this rule: http://www.avvo.com/legal-guides/ugc/when-can-an-ex-spouse-receive-your-life-insurance-or-death-benefits-in-ohio

    If there were no beneficiaries of a policy, the proceeds would pass through Probate and may be subject to creditor claims. A Probate estate would need to be opened in the county of the deceased.

    For the remaining issues, you would want to work with an attorney to resolve which person or estate would have a claim to different assets.

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  • How do I find an attorney to represent our family I a probate situation , my sister passed and all her property was left to us

    none of us have credit good enough to become executor of the will what can we do

    Elliott’s Answer

    For information on Ohio Probate, I have attached an initial checklist that should be helpful to get started.

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  • After a person is appointed executive of an estate through the courts, how much time period is there before inventory can be

    filed through probate?

    Elliott’s Answer

    The executor/administrator must file the inventory within three months of appointment by the Probate Court. The heirs and beneficiaries must receive a copy of the inventory by certified mail or must waive notice. The Probate Court can, upon motion by an executor, extend the time for filing of the inventory.

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  • Well i have pretty much given up on long tern nursing home protection. irrevocable trust wise.

    now my question becomes, probate and guardianship protection. will a revocable trust do that for me, especially my home, maybe a few tax free accounts, etc.?

    Elliott’s Answer

    Using a Revocable Living Trust allows for the transfer of assets to beneficiaries, avoiding Probate. This type of Trust can substantially reduce the cost of Estate administration.

    It is important to work with an attorney experienced with Estate and Trust law to ensure your goals are achieved.

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  • I would like to trademark a new business name. what would be my first step and the best way to get this done?

    I want my own business name.

    Elliott’s Answer

    To get full legal protection of your business name, a Federal Trademark application should be filed. If granted, a Federal Trademark will provide nationwide protection of the business name.

    To be registered, a Trademark must be used on products or associated with services that include the mark. It must be shown that such a Trademark is identified with a particular product or service, and it points directly to the origin or ownership.

    It is best to work with a qualified attorney to ensure the application is properly filed.

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  • If I put my house & most of my saving in an irrevocable trust, may I still sell the house via my trustee and

    draw money for additional unexpected expenses or vacation?

    Elliott’s Answer

    Here is a link to an article on point with Mr. Huddleston's answer: http://www.fizzlaw.com/article/ohio-creditor-protection-legacy-trust

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