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Probate is a legal process through a Probate Court to administer property (called probate property) owned by someone who has died. This would be property that was titled in the name of the decedent which property did not have a named beneficiary. The probate process exists to see that claims, expenses and taxes are properly paid. After these claims the remaining estate is distributed to those entitled to receive it under the decedent’s will or next-of-kin if there was no will. A probate proceeding takes place in the probate court of the county where the decedent lived. If the deceased also owned real estate in another state, additional proceedings may be necessary in that state.
Property that is not probate property may include property held by the decedent and another as joint tenants with right of survivorship; property held in a trust; accounts that are payable on death (POD) or 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 the named beneficiary, survivor or successor in interest.
Probating an estate requires the appointment of a person to handle the administration of the estate. If there is a will, this person usually is 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 person named as the administrator could be a relative or the decedent or a total stranger such as a bank or a trust company.
In a nutshell, the executor or administrator is responsible for collecting the assets or the estate, responding to debts owed by the decedent and then distributing what is left over to the heirs. In responding to debts, the administrator or executor should investigate the validity of all claims against the estate and paying all outstanding obligations including federal, state and local income taxes. Because of the elimination of the Ohio estate tax and the current large federal estate tax exemptions, most estates to not need to prepare and file estate tax returns. However, a qualified probate attorney can determine if and when these filings are required
The probate court judge supervises the work of the executor or administrator. These actions require the preparation and filing of legal documents, the provision of notices, hearings in court, an appraisal of the assets of the estate, an inventory of the assets, completion of final income tax returns and possibly 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. These requirements can be complex and typically would require the assistance of a probate attorney.
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. This process called “Release from Administration” is covered as a separate topic on our website.
The probate court costs assessed are usually about $250. The probate court will supervise the attorney fees charged for handling matters of the estate must. Typically, attorney fees are based on an hourly rate for the actual services performed by the attorney. 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 some nonprobate property. An executor or administrator may request additional fees for extraordinary services. Executor and administrator fees are considered taxable (as income) and frequently waived.
Creditors have up to six months from the date of death to present their claims. Most estates that do not have creditor issues often can be settled within six months of the appointment of the executor or administrator. An estate that has special issues, such as real estate that must be sold or litigation, may take much longer to complete. However, in many cases, distributions of most or all estate assets do not necessarily have to wait until all probate matters have been completed.
A properly drawn will is essential in directing 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, which an administrator might otherwise have to pay. Wills should be timely filed in the probate court upon death. The law provides penalties for the withholding or destruction of a will.