Background
Florence Basel died in December 2019. Her son Thomas was named executor, and her daughter Lori Schlarb had served as Florence’s attorney-in-fact under a general power of attorney since 2012. Thomas filed a concealment complaint under R.C. 2109.50 alleging that Lori had concealed or embezzled estate assets. The disputed assets included approximately $72,000 from a bank account, $282,159 from the sale of Florence’s house, and funds used for Florence’s in-home healthcare — all of which Lori had managed under the POA during Florence’s lifetime.
After a bifurcated trial, the probate court found Lori guilty of concealment, assessed damages and attorney fees against her. Lori appealed, arguing that R.C. 2109.50 applies only to assets the decedent owned at death, not to inter vivos transfers made under a POA.
The Court’s Holding
The Eleventh District reversed, holding that R.C. 2109.50 and 2109.52 — Ohio’s statutory concealment provisions — apply only to property the decedent owned under law at the time of death. The court reasoned that the purpose of the concealment statutes is to protect the estate’s interest in assets that belong to it, not to serve as a vehicle for challenging the propriety of inter vivos transfers made during the decedent’s lifetime.
Because all of the disputed assets were transferred or spent during Florence’s lifetime under Lori’s exercise of the POA, Florence did not own those assets at the time of her death. The appropriate vehicle for challenging such transfers, the court noted, would be an action for breach of fiduciary duty, conversion, or an accounting — not a concealment proceeding under R.C. 2109.50. The concurring opinion agreed with the result but concluded the probate court had jurisdiction to hear the case; it simply lacked sufficient evidence of concealment.
Key Takeaways
- Ohio’s concealment statute (R.C. 2109.50) applies only to property the decedent owned at the time of death; inter vivos transfers made under a power of attorney are outside its scope.
- Challenges to the propriety of inter vivos transfers by an attorney-in-fact should be brought as breach of fiduciary duty, conversion, or accounting claims, not as concealment proceedings.
- The concurring opinion highlights an ongoing tension in Ohio law regarding the scope of probate court jurisdiction over POA-related disputes.
Why It Matters
This decision is critical for Ohio probate practitioners because it draws a clear line between assets that belong to an estate and assets that were transferred during the decedent’s lifetime. Executors seeking to recover funds dissipated under a power of attorney must select the correct cause of action; filing under R.C. 2109.50 for pre-death transfers will fail. Conversely, attorneys defending POA holders against concealment allegations now have a strong doctrinal basis for dismissal. The concurrence’s disagreement on jurisdictional questions signals this area of law may continue to develop.