Probate of an Estate in Ohio

Probate of an Estate in OhioWhen a person dies, their estate will generally “go through probate.” In Ohio, this is a legal process where the probate court oversees administration of certain types of property individually owned by the person who has died.

Why is “probate” necessary? Probate gives the person managing the estate the authority to deal with the decedent’s probate assets. Basically, the courts are looking out for three interests—the interests of “heirs” or “beneficiaries,” (“heirs” are ancestors in the direct blood line and “beneficiaries” are persons or legal entities who receive property or other benefits); the rights of creditors to collect what is owed them and the wishes of the deceased who is entitled to have the terms of the will honored, if it is found to be a valid instrument.

The deceased person’s debts must be properly paid including any taxes due. Creditors who are unknown to the court must present claims within six months of probate.

If there is a will, there are likely “named beneficiaries.” If there is no will, state law dictates how the estate will be distributed. This is done by a schedule which directs how property will pass. In Ohio, it is done according to what is called “lines of consanguinity” or relationship by blood (descended from the same ancestor as the deceased).

Although most estate matters are fairly straightforward, there are several complexities that can develop as the probate process moves forward.

Does Everything Go Through Probate?

For very small estates worth less than $5,000, probate may not be necessary, but a Summary Release from Administration must be submitted to the probate court. A surviving spouse in Ohio can ask for a Summary Release if:

• The spouse inherits everything and is entitled by law to a family support allowance
• All of the deceased spouse’s assets are worth no more than $45,000 and the surviving spouse has already paid funeral costs or is obligated to pay them.

There is also property that by its nature is not part of an Ohio probate proceeding. It is known as “non-probate property” and includes insurance or retirement benefits that have been made payable to a named beneficiary; and accounts that are payable on death (POD) or transferable on death (TOD) to a named beneficiary.

Non-probate property also includes property or assets held in a trust and property the decedent and another person, or persons, held as joint tenants with right of survivorship. This means that the deceased and another person, or persons, co-owned property during the decedent’s lifetime. At the passing of one of the joint tenants, the other(s) automatically owns the assets.

Steps in the Probate Process

The first thing that happens is that an “executor” or an “administrator” of the estate must be appointed. If there is a will, it is possible an “executor” has been named by the “testator,” a person who dies with a will. If this does not happen, the probate court will appoint an “executor” for the estate (or an “administrator” if the deceased is “intestate” (does not have a will)). This person may be the surviving spouse or someone closely related to the decedent, perhaps an adult child of the deceased or a brother or sister. If there is no one willing or available to serve in the administrator or executor capacity, the court may appoint an attorney to handle probate matters.

Probate proceedings take place in the probate court of the Ohio county where the deceased person resided. The court issues “Letters of Appointment” which give the executor or administrator the power to act.

Posting Bond

Unless this matter has been addressed in the decedent’s will, an executor or administrator must post a bond (paid from the estate) that covers potential losses the estate might incur through error or mishandling of assets during the estate administration process. At any time the probate court can fine or remove the administrator for failure to perform his duties.

Under Ohio law, a bond is not required if the executor is the next of kin and is entitled to the entire net proceeds of the estate.

According to Ohio law, a person does not have to be paid to execute or administer an estate, but unless payment is refused, it is generally a good idea to provide some monetary compensation for the executor or administrator as it can be a very demanding position. Any expenses the executor or administrator has incurred can be deducted from the estate provided they are well-documented and not of a frivolous nature. There are several tasks for which the executor or administrator is responsible. The probate court supervises these various duties which may include:

• Proving in court that a will is valid and consulting the court about any challenges to or possible improprieties found in the will
• Responsibility for all estate property which must be inventoried and identified
• Determining the heirs of the estate by the terms of the will or by state law and communicating with those parties
• Having assets appraised and filing an asset inventory with the court
• Collecting all payments due the estate and paying all valid claims against the estate
• Distributing the remaining assets as the will or the state directs (if there is no will)
• Filing all required federal and state income tax returns, legal documents and notices
• Attending court hearings
• Implementing the directions and instructions of the probate court.

When the probate proceeding ends, the probate court will discharge the executor or administrator. Detailed records must be kept of how estate assets are handled and distributed. The executor or administrator must account for all activity involving the estate. An heir or a beneficiary may challenge his performance and request a redistribution of assets. Because of the complexity one may encounter in following probate procedures, the assistance of an attorney may be necessary.

How Long Does The Probate Process Take?

Each estate situation is unique, but if there are claims against the estate, these can take up to more than six months from the date of death to resolve. If state or federal taxes are filed or both, it can take a year or more to finalize the estate, especially if the return is audited. The assets cannot be safely distributed until released from liability for estate taxes. A contested will may take several years to finalize as the losing side is likely to appeal.

Probate Doesn’t Have To Be Frightening

When a family member dies or even a very close friend, it can be a difficult time, especially if the death was unexpected. There are often many personal and financial matters to deal with and all of them do not always go smoothly. People have different ideas of what their loved one wanted. When it comes to probate, sometimes a person has no idea where to begin. They may not even like the sound of the word.

Our probate attorneys at Slater & Zurz LLP are here to help relieve some of that anxiety and to inform potential clients about the probate process. There may be several non-probate assets and you will not have to worry about the probate court when it comes to those items. You will need an executor or an administrator for any probate proceedings and if that responsibility has been accepted by you, you will have to learn what will be expected of you.

The court’s aim is to be fair to the heirs and beneficiaries, to any creditors of the deceased and to the decedent who likely had plans for how he or she wanted things to happen after they died. It is very important that things are done properly as there may be no second chance to correct an error or intentional discrepancy.

During their lifetime people are often encouraged to prepare a will. It is said it is ‘the last chance to speak from the grave.’ Although, that sounds a bit eerie, it is true. For those who did not make a will, Ohio law is written to try to compensate for that. During the probate process, there will likely be questions, legal documents and forms to complete. This is a time when you are likely to need the assistance of a person who has a considerable track record in these areas.

Contact us at any time including weekends, evenings and holidays for free consultation with an experienced probate attorney. Please call 1-888-534-4850, chat with one of our 24-hour live chat operators or send us a website message.

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