When you’re grieving, a complicated legal and financial process is the last thing you want to deal with. But often, that’s exactly what happens when families go through the probate process after losing a loved one.
Understanding the probate process can help keep you from getting caught by surprise.
Who takes charge of a will after someone dies? What happens if someone dies without a will? Is there any way to avoid a lengthy probate process and pile of legal paperwork?
We’ll break it down for you.
What is probate?
Probate is the legal process of administering certain kinds of property (called probate property) owned by someone who died (the decedent) to see that claims, expenses and taxes are properly paid, and that the remaining estate is distributed to those entitled to receive it.
Probate property, also known as assets subject to probate, consists of all property titled in the decedent’s name and not transferable on death. It is distributed according to the terms of the decedent’s Will or, if the decedent died without a Will (intestate), according to Ohio law. A probate proceeding takes place in the probate court of the county in which the decedent lived. If the decedent also owned real estate in another state, additional proceedings may be necessary in that state.
Probate also serves to freeze the estate until a judge determines that the Will is valid, that all the relevant people have been notified, that all the property in the estate has been identified and appraised, that the creditors have been paid and that all the taxes have been paid. Once all of that’s been done, the court issues an Order distributing the property and the estate is closed.
What property is not included in probate?
Property that is not probate property (called nonprobate property), and therefore is not part of the probate proceeding, includes: property the decedent and another person held as joint tenants with right of survivorship; property held in a trust; accounts that are payable on death (POD) or will transfer on death (TOD) to a named beneficiary; and insurance or retirement benefits that are payable to a named beneficiary. Nonprobate property passes directly to a named beneficiary, survivor or successor in interest, without probate proceedings.
Probate property and nonprobate property may be subject to federal estate taxes.
Why is probate necessary?
Probate is necessary to give the estate executor or administrator the legal authority to control, safeguard and distribute the assets of the decedent’s estate.
Probate also provides a process for the payment of legally enforceable debts, taxes and the expenses of administration, and for the distribution of the remainder of the estate to the beneficiaries and heirs.
What does it mean if someone “died intestate”?
Intestate simply means that a person died without a Last Will and Testament. Conversely, testate means that the person died with a Will.
If a person died intestate, their assets are distributed according to the intestacy statutes, a complicated set of rules that specifies the order by which relatives are entitled to receive the decedent’s estate.
What does probate involve?
Probating an estate requires that a person be appointed to conduct the administration of the estate. If there is a Will, this person is usually named in the Will and is called an executor. If there is no Will or no person is named in the Will, this person is appointed by the probate court and is called an administrator. The executor or administrator may be an individual, a bank or a trust company.
The executor or administrator manages the following tasks:
- Caring for the decedent’s property;
- Receiving payments due the estate, including interest, dividends and other income;
- Collecting debts, claims and notes due the decedent;
- Determining the names, ages, addresses and degree of relationship of all heirs;
- Determining the names, ages and addresses of all beneficiaries, if there is a Will;
- Investigating the validity of all claims against the estate and paying all outstanding obligations;
- Planning for all relevant estate and income tax returns when required and making the required payments;
- Carrying out the instructions of the probate court pertaining to the estate and distributing the assets of the estate to the heirs.
The probate court judge and support staff supervise the work of the executor or administrator. This work may require the preparation and filing of legal documents, providing of notices, attendance at court hearings, securing of an estate asset appraisal, filing of an asset inventory, completion of final income tax returns and possibly gift and estate tax returns, an accounting of funds, final transfer of all assets to beneficiaries, termination of the probate proceeding and discharge of the executor or administrator by the probate court. Because of the complexity of these procedures, it is wise to get an attorney’s assistance.
If the total value of all property in the decedent’s individual name is $35,000 or less, the estate can be relieved from some of these administrative requirements. Where the decedent’s spouse is entitled to receive all of the estate’s assets, the amount that can be relieved from formal administration is increased to $100,000.
How much does probate cost in Franklin / Delaware County, Ohio?
Probate costs can vary greatly, depending on the size and complexity of the estate, and whether or not there is a Will Contest. Costs will usually include some, if not all, of the following:
- Filing fees and court costs, which are usually a few hundred dollars
- The Estate Executor’s fee, which is usually based on a percentage of the decedent’s property and income, as well as the value of any non-probate property. The Executor may request a higher fee for extraordinary services or for a particularly complex estate.
- Attorney’s fees, which are generally calculated at the attorney’s hourly rate and are subject to approval by the probate court
- Appraisal fees
- Any applicable federal or state estate taxes
The executor or administrator is entitled to receive a fee set by Ohio law, based on a percentage of the value of probate property and income, as well as the value of nonprobate property (excluding joint and survivorship property). An executor, administrator or an attorney may request additional fees for extraordinary services. Executor and administrator fees are taxable and frequently waived.
How long does probate take?
Completing the probate process can take anywhere from 6 months, if everything goes smoothly, up to several years for a complicated and contentious estate.
Claims against the estate may be made up to six months from the date of death. A small estate that does not require the filing of a federal estate tax return and has no creditor issues often can be settled within six months of the appointment of the executor or administrator. However, if a federal estate tax return is required, the administration of the estate can last more than a year. (Estate taxes are not due until nine months after the decedent’s death.) If there’s an audit of an estate tax return, the administration can take up to an additional year or more, and an executor or administrator cannot safely distribute all of the estate assets until released from personal liability for estate taxes after the audit has been completed.
An extraordinary administration involving a contested Will or complicated tax litigation may take several years to complete. In many cases, however, distributions of most or all estate assets do not necessarily have to wait until all probate matters have been completed.
Do I need a will?
A properly drawn Will assures you that, upon your death, your probate property will be distributed as you intended. It is important that you review your Will periodically with your attorney in order to keep it up to date. A Will is also the mechanism for choosing the executor and commonly provides for the nomination of a guardian where there are minor children. A Will also can dispense with the requirement of a surety bond, for which an executor or administrator might otherwise have to pay.
Wills should be filed in the probate court as soon as possible after a person’s death. The law provides penalties for withholding or destroying a Will.
If you do not make a Will, your probate property will be distributed according to the Ohio Statute of Descent and Distribution.
Can I just skip the probate process?
There can be severe taxes and penalties for failing to go through probate.
So I need to go through Ohio probate. What do I do?
- Determine whether the decedent had a Will. It may have been filed with the probate court in the county where they lived, however, attorneys often advise their clients not to file their Will with the probate court while they are still alive. If you do file a copy and later wish to make changes to your Will, you’ll need to go to court to retrieve the Will. That said, keeping your Will on file with the probate court in the county where you live might be advisable for individuals who are prone to misplacing or losing important documents, suffering from Alzheimer’s or dementia, or for people who believe that their Will is likely to be contested.
- Determine which court has jurisdiction over the decedent’s estate. This will be the probate court for the county in which the decedent lived. However, if the decedent owned real estate in another state, you will also need to go through probate in that state.
- The probate court will have various forms to complete. Begin by filing an Application for Probate. You’ll also need multiple certified copies of the Death Certificate. One will need to be attached and filed with the Application for Probate.
- Provide Notice to the Heirs, or obtain a Waiver of Notice using the correct probate court forms. If the decedent’s heirs do not sign a Waiver, they need to be served. To know who needs to be notified, it is wise to consult with an experienced probate attorney who understands the rules of intestacy, and which heirs have priority in the distribution of assets. The notification process needs to be completed properly, by formally serving all the heirs.
- The Waivers of Notice will be filed with the probate court. For those heirs who did not waive notice, you must be able to prove that they were properly served.
- The Will must be proved, this is the process through which the court determines that the Will is valid, that it is indeed the Last Will and Testament of the decedent, and that there is not a more recent Will. This is the stage where an heir might contest the Will, claiming, for example, that the Will is invalid, or that the decedent did not have testamentary capacity at the time the will was signed.
- The court will appoint a personal representative, usually the Executor named in the Will, and will issue Letters of Authority. If there is no Will or no Executor named in the Will, the court will appoint an Estate Administrator. The Executor or Administrator is responsible for:
- Caring for the decedent’s property including any real estate
- Receiving payments and collecting on debts due to the estate, including interest, dividends and other income
- Determining the names, ages, addresses and degree of relationship of all heirs and, if there is a Will, all beneficiaries
- Investigating the validity of any claims made against the estate, and paying all outstanding obligations;
- Planning for and paying relevant estate and income taxes
- Carrying out the instructions of the Ohio probate court pertaining to the estate and distributing the assets of the estate to the heirs.
These tasks are completed under the supervision of the probate court, and continue until the probate proceeding is terminated and the Executor or Administrator is discharged by the probate court.
The Ohio probate process is complex, with lots of rules and filing deadlines, all of which vary by jurisdiction. Franklin County has one set of rules, while Delaware County has a slightly different set. Because of these complexities, it is beneficial to hire an attorney familiar with the process, and with each individual court this to avoid the risk of missing something, not having the proper documents, or even coming to court only to find that you missed a signature needed on one document. Any of these relatively minor mistakes can drag out and delay the administration of the estate while adding to the related costs.
If you have questions about the Ohio probate process and require assistance valuing and/or selling any associated real estate and/or an attorney referral, contact us today. Call or text us at 614.332.6984, or send us an email at jasonpland@msn.com .
