What is Probate?
Probate is a legal proceeding to administer certain kinds of property owned by someone who has died. It includes the responsibility to pay the valid debts of the person who has died (the decedent), see that their taxes are properly paid, and to see that the remaining estate is distributed to those who are entitled to the assets under the terms of the decedent’s Last Will and Testament, or the laws of the State of Ohio if the decedent failed to leave a Will. The proceedings take place in the Probate Court located in the County in which the decedent resided in at the time of his death. If the decedent owned real estate in another State, it may be necessary to open another probate administration in that State (i.e. ancillary administration).
Do all estate assets need to be probated?
No. The only property that must be probated is property that was titled in the decedent’s name on the date of their death that did NOT have a joint owner with rights or survivorship OR a beneficiary designation. For example, if the property had the following designations associated with it, then it does not need to go through probate:
- JTWROS – joint tenants with rights of survivorship
- POD – Payable on death
- TOD – Transfer on death
- Property held in Trust
- Accounts with a named beneficiary
If any of these designations exist then this property is referred to as “nonprobate property,” and it passes directly to the named beneficiary, survivor, or successor in interest without probate proceedings.
What documents are necessary to open a Probate Estate?
- A copy of the death certificate (the Court does not require it to be a certified copy);
- The original Last Will and Testament, if in existence;
- A copy of the paid funeral bill (this can be requested from the funeral home if necessary);
- A list of the names and addresses of the decedent’s next of kin. If that list includes people under the age of 18, then the list should include their birthdates as well; and
- An estimate of the decedent’s total probate assets.
What Happens During Probate?
First, someone submits an Application for Authority to Administer the decedent’s estate. Then an executor or administrator of an estate is appointed by the Probate Court. It is an Executor if the person was named in the decedent’s Will (“Executrix” if the person is female), or an Administrator if the applicant was not named in the decedent’s Will (“Administratrix” if the person is female). Generally, an Administrator will be required to post a probate bond that is twice the value of the non-real estate probate property, in order to ensure that the interests of the beneficiaries are protected in the event of misconduct by the Administrator. Most Wills, waive the bonding requirement when an Executor is named.
Once the Executor or Administrator is appointed, they are responsible for managing the following tasks:
- Identifying and contacting the heirs of the estate;
- Identifying the decedent’s assets;
- Seeing that the decedent’s assets are properly valued;
- Preserving the decedent’s assets during estate administration;
- Dealing with creditors;
- Paying taxes;
- Interfacing with beneficiaries;
- Distributing assets to beneficiaries after debts and expenses are paid; and
- Accounting to the Probate Court of all funds received and paid out by the Estate.
How Long Does Probate Take?
It depends, as no two estates are the same. However, one thing is certain, an estate cannot be closed within 6 months from the date of death, since there is a 6-month period for creditors to assert their claims in Ohio. Some of the factors that can effect how long probate takes are whether:
- The heirs can be easily identified and located;
- The heirs are cooperative with the process;
- The assets can be identified and gathered expeditiously;
- There are a lot of debts that must be addressed;
- There are sufficient assets to pay the debts;
- There is real estate that must be sold;
- There is real estate that is underwater or part of a foreclosure action; and
- There are income or estate tax returns that must be filed.
Most estates are closed within 12-18 months from the date of death.
It’s okay to ask for help.
There are a lot of responsibilities and pressure on the Executor or Administrator. If they don’t property fulfill their job duties, they can be held personally liable (i.e. they have to pay for their mistakes out of their own pocket). We can help guide you through the probate process and make the experience as simple as possible. Schedule a Consultation today … and avoid all of the headaches and unexpected consequences of trying to do it alone!