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frequently asked questions

Wrongful Death Trust

RC 2125.03(A)(2) allows a Wrongful Death Trust to be established in the Probate Court for a beneficiary who is under 25 years of age or an incompetent adult, with money received in an action for wrongful death under ORC 2125.01 and 2125.02.

The Guardian of the estate or of the person and estate of the ward, who has received funds as a result of a wrongful death award or settlement, may apply to the Probate Court to create and approve a Wrongful Death Trust for the ward. The Applicant must state that it would be in the ward’s best interest to create the trust and provide the reasoning for that assertion.

A bonded Trustee is appointed to administer the trust, unless the bond is waived according to law (funds placed in restricted access account in lieu of bond).  An adult beneficiary or the guardian of the estate of a minor beneficiary must consent to the appointment of the trustee.

Upon appointment by the Court, the Trustee is given Letters of Authority and completes a Trustee’s Inventory.

The Trustee manages the trust in accordance with the trust agreement. This includes instructions for dispersing property from the trust.  Typically, no disbursments can be made from the trust without Probate Court approval.

A yearly accounting for the trust property is completed by the Trustee and filed with the Probate Court.

Items necessary to file a Wrongful Death Trust:

  1. An unsigned copy of the Trust in DRAFT form;
  2. Copy of Driver’s License or Government issued picture ID of the Applicant;
  3. Completion of Court's forms required for completion of a background check of Applicant;
  4. Original birth certificate for the trust beneficiary (the court will copy it and return the original);
  5. The base court cost deposit is one hundred twenty dollars ($120.00), cash, check, or credit card (subject to a convenience fee); and
  6. Complete the Probate Forms listed to the right.

Frequently Asked Questions

What is a Wrongful Death Trust?
A Wrongful Death Trust is established by the Court as a result of a settlement of a wrongful death claim when there are funds passing to a minor, or an incompetent adult.  It is necessary to receive and manage the settlement funds for the benefit of the child until the child attains age 25, or indefinitely for an incompetent adult.  The Court appoints the trustee and establishes the terms of the trust.  See the "Estates - Wrongful Death Cases" and "Minor's Claims/Funds" sections of this website for additional discussions relevant to this topic.

Testamentary Trust

A testamentary trust is established through a Last Will and Testament of a decedent that has been admitted to probate in this county.  In this Court, it is administered as a separate case file.  It is the responsibility of the estate fiduciary or the estate fiduciary's attorney to file the necessary pleadings with the Court to establish the case file and secure the Court’s appointment of the testamentary trustee.  In an estate in which a will creates a testamentary trust to which assets pass from the estate or other beneficiary designation, the estate will not be closed until the testamentary trustee has been appointed and any assets passing from the estate are distributed to the testamentary trustee.  

If the dispositive provisions of the decedent's will leave separate shares in trust to multiple individuals (rather than a gift to a class of individuals with the a single pool of assets to be managed for the mutual benefit of the class), an individual trust case file shall be opened to administer each separate share of the overall trust.

Items Necessary to File a Testamentary Trust Case:

  1. Copy of the Will creating the testamentary trust;
  2. Copy of Driver’s License or Government issued picture ID of the Applicant;
  3. Filing of the Court's background check documents pertaining to the Applicant;
  4. Application for Appointment and Trustee's Acceptance;
  5. The base court cost deposit is one hundred twenty dollars ($120.00);
  6. Oath of Trustee (to be executed in the presence of a judicial officer of the Court);
  7. Adequate bond if not waived in the will, or if the trustee is a non-resident, regardless of the will; and
  8. A listing of the names and addresses of the trust beneficiaries and the trustee, including the birth date of each individual beneficiary who is then under the age established in the trust for final distribution.

Frequently Asked Questions

What is the Court’s Role in a Testamentary Trust?
A testamentary trust is one that is created through the decedent’s will and come into existence as a result of the death.  The probate court has exclusive jurisdiction to construe the trust and to direct, control, supervise and review the administration of the trust by the testamentary trustee.  The trustee is accountable to the Court, as well as the trust beneficiaries and accountings of receipts and distributions are filed with the Court.  The trust terminates pursuant to the terms of the decedent’s will or upon court order when the purposes of the trust no longer are being served through the trust, or when its assets fall below certain financial minimums and termination would not defeat the purposes for its creation.

 Intervivos Trust

An intervivos trust is an agreement where the person creating the trust (referred to variously as the grantor, settlor, or trustor) during the creator’s life appoints a trustee to receive assets for the benefit of the creator and/or one or more beneficiaries.  A written agreement should be drafted by an attorney to identify the roles, duties and powers of the parties.   It will be signed by both the creator and the trustee.  

An intervivos trust is often created for one or more of the following purposes: (a) avoiding probate by having assets owned by the trust, not the creator, (b) providing for the post-death disposition directives in the trust rather than in a will, (c) in addition to a will, facilitating a means of limiting the impact of estate taxes for subsequent beneficiaries, or (d) holding assets for the benefit of children until they reach a specified age or until a stated triggering event occurs.

The intervivos trust may be either revocable or irrevocable, and either funded or unfunded.  An intervivos trust is often referred to as a "living trust".

The creation and administration of the intervivos trust occurs outside the general supervision of the Probate Court.  However, the Court may assume limited jurisdiction over the trust for purposes of a addressing specifically indentified issues relating to the trust language or the administration.  This jurisdiction is invoked through the filing of a Motion to Assume Jurisdiction for a specifically described purpose that is presented to the Court by a party having an interst in the trust.  The primary action then is commenced as a civil action with the filing of a Complaint with the Court.  This proceeding will be governed by the Rules of Civil Procedure and at the conclusion of the litigation the Court's involvement wiht the intervivos trust ends, unless jurisdiction is expressly retained. 

Advantages of Using an Intervivos Living Trust

  1. Privacy:  A trust agreement is a private document and becomes public only in limited situations where persons with standing seek interpretation, modification, reformation, supervision ,or termination from the Probate Court.
  2. Speed of Transfer:  Assets may be transferred into and out of the trust without the need for Court approval.
  3. Avoidance of Probate Expenses:  An intervivos trust will not typically require probate court involvement; therefore, court costs and statutory fees will be avoided.

Disadvantages of Using an Intervivos Trust

  1. Effort to Fund Trust:  An intervivos trust must be fully funded with all the settlor’s assets while the settlor is living or through other non-probate transfer mechanisms in order to fully avoid probate.  Assets acquired by the settlor after the trust is established must be transferred to the trustee prior to death, or by non-probate transfer mechanisms to avoid having to probate them.
  2. Expense:  Cost of drafting and funding a trust is generally greater than the cost of preparing a will and the cost of transferring assets to the trust is money spent prior to death, rather than post-death.
  3. Lack of Oversight:  With privacy, generally there is no readily available forum for the trustee or the beneficiaries to obtain resolution of disputes or direction.  With privacy, and without independent oversight and supervision the specter of suspicion may become burdensome for the trustee and problematic for the beneficiaries.  

If there is interest in creating an intervivos trust, consultation is recommended with an attorney knowledgeable in trust drafting and administration, estate planning, taxation, and probate matters.