What is the difference between the Administrator of an Estate and an Executor of an Estate? It’s a distinction you should be aware of whether you will be the person appointed to take charge of the estate, or if you are the person drafting your Last Will and Testament.

The short answer is that an Executor (Executrix if the person appointed is a female) is the person whom the decedent named in the Will to take charge of the estate. (In probate law, the person who died is referred to as the decedent.) The Executor is responsible for wrapping up the decedent’s affairs and distributing the assets to, or for the benefit of, the persons name in the Will (beneficiaries).

An Administrator (Administratrix if female) is the person in charge of the estate when someone dies without a Last Will and Testament.

Both the Administrator and Executor are subject to the jurisdiction of the Probate Court. Both have similar duties. Both are responsible for identifying, gathering and obtaining values of assets that belong to the deceased person and that will be included in his/her estate. They will be responsible for filing tax returns for the decedent and the estate, for paying estate debts, handling business for the person who died, and distributing the assets to the beneficiaries or the heirs (if there is no will).

Administrators and Executors are fiduciaries. A fiduciary is a person who has been charged (or given) the highest degree of trust and responsibility that can be imposed by law. From the Latin term fiduciarius which literally means a person who is “holding trust”. It is proper to speak of a fiduciary duty or fiduciary relationship to another or for another’s property. Ohio Probate law has a highly technical definition. The Ohio Revised Code defines a fiduciary as ”… any person…appointed by and accountable to the probate court and acting in a fiduciary capacity for any person, or charged with duties in relation to any property, interest, trust, or estate for the benefit of another..” Full text here ORC 2109.01.

So if they are both fiduciaries and are both charged with performing the same duties for the estate, why should I care whether I appoint an Executor in my Last Will and Testament? What is the difference other than an Executor is appointed by the Will and the Administrator is not?

The obvious answer is that you decide who will take charge of your estate. You may love all your children equally, but little Johnny is too easily influenced or intimated by his brothers and sisters to be able to handle any disputes that may arise after your death. Besides, you don’t want to put him in such a stressful position if he still finishing medical school should the grim reaper show up early. And Johnny lives in California now. That would be a long trek to Batavia, Ohio. He would not make a good Executor.

The most significant difference between an Executor and an Administrator is that an Administrator’s authority is limited to what the law provides in the statutes. See ORC 2113. The Executor has all the same legal authority PLUS additional powers that may be granted in the Last Will and Testament.

There are two special powers that can save the estate time and money. The Last Will and Testament can give the Executor the power to sell real estate at private or public sales without having to go through a length “land sales case”.  This is a case that is filed separately from the Probate case and has a life of its own. See ORC 2127. This procedure is cumbersome, time consuming and can be expensive to the estate.

And the Last Will and Testament can allow the Executor to serve without having to post a “bond”.  A bond is required to protect the estate against fraud or negligence. When the decedent names a person he or she trust as Executor, it makes sense to “waive” the requirement of posting the bond. (Although the decedent can choose to leave the requirement for bond in place).  The Administrator must post bond unless otherwise ordered by the Probate Court. ORC 2109.04(A)(1) states that, “(A)(1) Unless otherwise provided by law, every fiduciary, prior to the issuance of the fiduciary’s letters as provided by section 2109.02 of the Revised Code, shall file in the probate court in which the letters are to be issued a bond with a penal sum in such amount as may be fixed by the court, but in no event less than double the probable value of the personal estate and of the annual real estate rentals which will come into such person’s hands as a fiduciary.” (my emphasis added). The Administrator would have to qualify for and obatin a surety is required to guarantee the Administrator’s proper handling of the estate assets, the Administrator has a difficult choice: get a corporate surety bond (which can be expensive, and counts against the Administrator’s credit score which could affect plans for getting a mortgage), get a friend or relative to act as surety, or decline to serve.

Avoiding unnecessary cost, delays and procedures in the administration of your estate is an important consideration in deciding whether to draft a Last Will and Testament. And when drafting your Last Will and Testament, you want to give adequate consideration as to whom to appoint as Executor to take charge of your estate. You can’t take it with you, but you might as well leave as much as you can for those you love.

You have exhausted all options and are now just exhausted. It’s time to call it quits. Now what? Do you file for a divorce or do you petition the court for a dissolution of marriage? What is the difference? Can I choose? Is one a better option than the other? You just want this over with.

In Ohio, a marriage can be terminated by either procedure. If both of parties 1) agree that the marriage should be terminated, 2) have decided on how to divide the marital property and marital debt, 3) agree to the parenting arrangement and the support of minor children, and 4) are willing to sign all the necessary documents and attend a court hearing; then the marriage can be terminated by filing a Petition of Dissolution. See ORC 3105.63. Both parties are referred to as “Petitioners”

If there is any dispute on any of these issues or if either party does not want to terminate the marriage, then Court will not grant a Dissolution of Marriage. In that case, the party wanting to terminate the marriage must file a Complaint for Divorce. A Complaint for Divorce is similar to other lawsuits in that you are “suing” your spouse for a termination of marriage and asking for a legal remedy. See ORC 3105.17. The party filing the Complaint is known as the ‘Plaintiff” and the person who is being served with the Complaint is referred to as the “Defendant”.

There are advantages and disadvantages of each procedure. Emotions run high during a marital breakup, and it is difficult for the parties to deal with each other rationally enough to move through a dissolution of marriage without some help. But if the parties can work through the issues to be decided, the Dissolution of Marriage is a much quicker procedure in which to terminate the marriage. A final hearing can be set between thirty to forty days from the filing of the Petition. Ohio law requires that the final hearing take place within ninety days of the filing of the petition. ORC 3105.64.

But what if you want your spouse out of the house and he refuses to leave. Or the two of you have been separated for some time and you can’t get her to help you financially in paying for the kids’ clothes, school supplies, food and/or school fees. Heck you can’t even get her to pick the kids up at the same time on those rare Fridays she is willing to see them. What then? And the mortgage payment is due Tuesday.

You may need temporary orders while the two of you are working out the details of your separation. Technically, you cannot obtain temporary parenting or support orders during the time you are waiting to finalize a dissolution of marriage. The Court doesn’t get involved until you appear before the judge for your final hearing. A divorce may be necessary in these circumstances even though a separation agreement may be eventually reached. If you need or want exclusive use of the marital residence, or need temporary parenting and child support orders, or spousal support and help paying the household expenses; then you need to invoke the Court’s jurisdiction to request temporary orders. You also may need the Court to grant you a Temporary Restraining Order to prevent your spouse from disposing of marital property, to protect yourself from harassment and/or physical abuse, or to prevent him from taking the children out of the jurisdiction.

You need a cool head to make sure that you understand the implication of your terminating your marriage. It is not a time for you to “go it alone”.

Today we place our personal data on Facebook, Twitter, Amazon, QVC, Ebay, Craigslist and hundreds of thousands of other sites. But even if we don’t shop or “play” online, we still throw out garbage containing personal documents, provide identification at the local stores, and purchase items using checks that contain sensitive information identifying who we are. The Federal Trade Commission estimates that as many as 9 million Americans have their identities stolen each year. If you have been a victim, you know how traumatic and disorienting the experience can be. If you suspect that you may be victim of identity theft, or have been notified by an agency or company with whom you have transacted business that your personal data has been compromised; there are some basic steps you need to take.

1. Review Credit Reports. The first step you should take is to review your three credit reports (Experian, Equifax and Transunion) at least annually. If you have knowledge your identity or accounts have been compromised, you need to take this step immediately. You can obtain a free copy of each report at the following site: AnnualCreditReport.com

Don’t be surprised if you cannot obtain all three during your first visit. The site is not easy to maneuver. You have to read the webpages carefully to make sure you are proceeding to your free credit reports. My beef with this site (and it is one of the better ones) as well as the other fraud protection sites, is that you’re constantly being solicited to purchase different monitoring and credit score products. Some of these products may be very good and beneficial to your needs, but they are distracting when making your request for your credit reports. Therefore you to be on guard to look for the “no thanks” and “continue” buttons.

If you suspect or have knowledge that your personal information has been compromised, I recommend that you check your credit reports periodically. Identity thieves sometimes hold a victim’s personal information for later use or is shared among a group of thieves at different times.

2. Fraud Alerts. The next step is to make a fraud alert. You can file a report with any of the three major credit reporting agencies either online, by calling the toll-free number, or in writing. The nice thing about filing the fraud alert is that you do not need to file with each of the agencies. When you file with one of the agencies, the other two are notified as well.

The initial 90 day fraud alert indicates to anyone requesting your credit file that you suspect you are a victim of fraud. When you or someone else attempts to open a credit account in your name, increase the credit limit on an existing account, or obtain a new card on an existing account, the lender must take steps to verify that you have authorized the request. If the creditor cannot verify this, the request should not be satisfied.

An extended fraud alert is similar to an initial 90 day alert, except that it lasts for 7 years, and to verify your request a creditor must contact you on the telephone number(s) you provide to the credit reporting agencies. To place an extended fraud alert, you are required to file a valid police report showing that you have been a victim of identity theft. Most police departments have procedures for filing identity theft complaints.

An active duty alert is available to persons on active military duty and is similar to an initial 90 day alert, except that it lasts 12 months and your name is removed from prescreened offers of credit or insurance for 2 years.

You can file a fraud alert with any of the any of the following:

TransUnion: 1-800-680-7289; ONLINE; Fraud Victim Assistance Division, P.O. Box 6790, Fullerton, CA 92834-6790

Equifax: 1-800-525-6285; ONLINE; P.O. Box 740241, Atlanta, GA 30374-0241

Experian: 1-888-EXPERIAN (397-3742); ONLINE; P.O. Box 9554, Allen, TX 75013

3. File a Police Report. As a necessary prerequisite to enforcing your rights under the Federal Credit Reporting Act, you need to file a police report. In the event that you come across a police department that does not take identity theft reports, the Federal Trade Commission recommends that you provide the police department this law enforcement letter and a copy of “Remedying the Effects of Identity Theft.”

4. Consider a Credit Report Freeze. If a security freeze law is available in your State, you may want to consider freezing your credit reports. Placing a security freeze on your credit reports limits the ability of third parties to access your reports. This helps prevent identity thieves from opening credit accounts in your name. Ohio has enacted a credit report security freeze law in 2008. See information on Ohio’s Security Freeze Law. Here is the information and links to the three Credit Reporting Agencies on how to freeze your credit reports: OAGBlog. For the statutory details see ORC 1349.52

5. Close Compromised Accounts. Close any account that you know or suspect has been tampered with. In addition to filing an identity report with the local police department, you need to contact the company with whom you have the account and inform them that the account has been compromised. The FTC provides copies of sample letters you can use in notifying and disputing existing accounts, and for new accounts. It is recommended that you also make use of the FTC Theft Identity Report.

6. File FTC Complaint. File a complaint with the Federal Trade Commission. Here’s a short video showing you how to file such a complaint.

Online FTC Complaint

Other Helpful links:

Fighting Back Video

FTC Identity Theft 

Department of Justice

Identity Theft Resource Center

Privacy Rights Clearinghouse

Identity Theft Prevention and Survival

The term “dissection” is usually applied to the examination of plants and animals. Some of us had the pleasure of dissecting a frog or baby pig pickled in formaldehyde during high school anatomy. (I remember that the arteries and organs were not as colorful as those in the text book.) But it is also used in relation to written material and to understanding the structure of a sentence. We all had to diagram sentences at some point in elementary or junior high school where we “dissected” the sentence into noun, verb, adverbs and adjectives usually by use of a chart or diagram.

When it comes to understanding criminal law and prosecution of a crime, we need to “dissect” the law. Common understanding is not enough.

For example, we think we understand what it means when someone is charged with committing crime of theft. It means that person stole something, right? But what is “stealing”. Is it stealing if someone puts on item in his pocket with the intent of not paying for it but never leaves the store, and then changes his mind and puts it back? What if he or she leaves the store but then feels remorse and goes back in and puts the item back on the shelf? What if a person picks up a cell phone that she believes to be hers but after leaving the store she realizes that she left her phone at home? Or two year old Brayden picks up a candy bar when his mother wasn’t looking and carries it out of the store? What if a person had an unexpected seizure right before he ran his car off the road and into a ditch. Is this driver guilty of reckless operation or failure to exercise reasonable control of his vehicle?

We know that the prosecution has the burden of proving that the defendant (the person charged with the crime) committed the crime beyond a reasonable doubt. But what is it that the prosecution has to prove? We can only understand this burden if we “dissect” a crime into its elements.

Practically speaking we can identify crimes in two broad categories: Felonies and misdemeanors. Both felonies and misdemeanors come in different degrees. Some felonies are classified as capital offenses for which the death penalty can be imposed. Regardless of the sentence, individual crimes are classified broadly as felonies or misdemeanors by statute.  But if the offense is not specifically classified, it is a felony if imprisonment for more than one year may be imposed as a penalty; and a misdemeanor if imprisonment for not more than one year may be imposed as a penalty. See ORC 2901.02.

The specific crimes are identified by the state in its statute or Code which make up that states laws. In Ohio, crimes are identified in Chapter 29 of the Ohio Revised Code. See ORC 29. The traffic offenses are identified in Chapter 45. See ORC 45. When dissecting the specific crime, whether felonies or misdemeanors, we identify what “elements” must be present for a person to be charged and convicted of a crime. The prosecution has prove that each of the required elements must be present beyond a reasonable doubt for the Defendant to be found guilty.

The number of elements required for a specific offense may vary but there are usually four elements that need to be established:

1. The act or mission to act.
2. The mental state required as it relates to EACH element of the crime (it may differ for each of the elements).
3. The result necessary for the crime (e.g. in a murder or manslaughter offense there must be a death).
4. The necessary circumstances or condition that may be required (e.g. whether a drug offense occurs within a certain distance from a school).

The first two elements are the basis of all criminal liability in Ohio. If either of those are missing, a person cannot be found guilty of a crime. See ORC 2901.21. Sometimes the required mental state may be referred to as the required degree of culpability for each of the elements of the offense, in other words, degree of “fault”. But there are some offenses that have the purpose of imposing strict criminal liability for the conduct described without referring to culpability. Speeding is such an offense. The prosecutor does not have to prove the driver intended to speed, nor that he or she knew they were speeding nor even that the driver was negligent in speeding. All the prosecutor has to prove is that the driver was speeding. Period. Speeding is the prohibited conduct for which strict liability is imposed.

But even if strict liability is to be imposed, the act or omission to act must be voluntary. Reflexes, convulsions, body movements during unconsciousness or sleep, and body movements that are not otherwise a product of the actor’s volition, are not voluntary acts. ORC 2901.21(D)(2). You should not confuse an involuntary act with an unintentional act. If you turn suddenly and your arm strikes a passerby who was rushing past you, you may not have intended to strike the person, but your act of turning was a voluntary act. If you were at McDonald’s having your morning coffee and had a seizure, the act of spilling hot coffee on your neighbor would not be a voluntary act.

There are four degrees of mental states or culpability. See O.R.C. 2901.22. It is proper to talk about degree of fault. A person can act purposely by intending the act and result. A person can act knowingly if he or she knew the conduct could bring about a result even if he or she didn’t intend it. A person can act recklessly by being grossly indifferent to the consequences of his or her actions even though he or she may not have been aware of what might happen. A person can act negligently by failing to exercise that degree of car that an ordinary an reason person would have exercised under the same of similar conditions. ORC 2901.22 gives the following detailed description of these four mental states:

”(A) A person acts purposely when it is his specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is his specific intention to engage in conduct of that nature.

(B) A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist.

© A person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, he perversely disregards a known risk that such circumstances are likely to exist.

(D) A person acts negligently when, because of a substantial lapse from due care, he fails to perceive or avoid a risk that his conduct may cause a certain result or may be of a certain nature. A person is negligent with respect to circumstances when, because of a substantial lapse from due care, he fails to perceive or avoid a risk that such circumstances may exist.“  ORC 2901.22.

If you are charged with a crime, don’t enter of plea of guilty or no contest just because you feel guilty or because you “want to get it over with”. You should discuss this matter with your attorney.