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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.

UTMA Successor Custodian

Designation of Successor Custodian under Ohio UTMA

Often there are funds of a beneficiary (generally a person under 21 and referred to as a "minor" for purposed of this Act) which are being held by a custodian in an account or investment established by a donor/transferor under the Ohio Uniform Transfers to Minors Act (RC Chapter 5814).  If a custodian resigns, becomes incompetent, or dies without a successor having been named by the donor/transferor or by the custodian, and there is no legal representative (defined as being an executor, administrator, conservator of estate, or guardian of estate) of the donor or custodian willing to designate a successor custodian, then a Petition may be filed with the Probate Court requesting the designation of a successor custodian. The Petitioner may be the donor/transferor, the resigning custodian, a legal representative of the donor/transferor, a member of the beneficiary’s family (defined as a parent, step-parent, spouse, grandparent, aunt or uncle of the beneficiary), or the beneficiary who is at least 14 year of age. The Petitioner may suggest the name of a suitable successor; however, the appointment is within the Court's discretion. 

Upon receiving the Petition, the Court will conduct a background records check of the proposed successor Custodian prior to making an appointment.  Additionally, before making an appointment, the Court requires the successor to agree to the appointment and to acknowledge the resulting responsibilities.  The Court may give notice to the beneficiary and conduct a hearing before designating a successor Custodian.

Items Necessary for Appointment of Successor Custodian:

  1. The Petition;
  2.  If a potential successor is suggested by the Petitioner, then the Petition must be accompanied by successor’s Custodian’s Acceptance, Record Check Authorization, and Non-Public Record – Social Security Information;
  3. Photocopy of the proposed successor Custodian’s current government issued photo ID; and
  4. Court Cost Deposit: If within an open estate or guardianship file - $5.00; or If through an independent miscellaneous case - $58.00.

The forms are shown at the right of this page.