The term Probate, as it is commonly used, means the administration of an estate, which is the process of settling your financial affairs and distributing your property. Probate occurs after your death and is performed under the supervision of the Judge of the Probate Court.
The process is generally started by the Fiduciary of the estate. Fiduciary is a generic term that refers to an Executor, Administrator, Trustee and also a Guardian. If you have a Will, the Fiduciary is most often the person you named in the Will as the Executor. If you do not have a Will, the Judge will appoint an Administrator, most often your spouse or adult child. The process is easier and quicker if you have a Will, but it will still generally take six months or longer.
The Fiduciary has many duties: your heirs and creditors must be notified that Probate has commenced, the extent and value of your assets must be determined and an Inventory listing this information filed with the Probate Court, any money due you must be collected, tax returns prepared and taxes paid if required, sell or liquidate assets if require by the Will or to pay costs of administration or creditors, pay your legal debts in accordance with their priority, distribute your property to your beneficiaries pursuant to your Will or to your heirs pursuant to law if you do not have a Will. In many cases additional action may be required.
Your Will, Inventory and all other records filed with the Court in the process of Probate, except for the estate tax return, are public records and may be viewed by anyone, online if available, or by going to Probate Court and requesting to see the file.
Probate is stressful, time consuming and often expensive, but Probate can be easily avoided by Estate Planning.
For more information on this Estate Planning topic, the content below has been reprinted with permission of the Ohio State Bar Association.
Probate property and nonprobate property may be subject to federal estate taxes.
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.
The costs assessed by the probate court are based on a schedule of charges that the law has established for each type of document filed in the court. Costs typically are about $200. In most cases, the court must approve attorney fees charged for handling estate matters. Typically, attorney fees are based on an hourly rate for the actual services the attorney performs, or fees may be charged according to the probate court’s recommended fee schedule. 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.
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.
Document last updated 3/27/2014.
© Ohio State Bar Association, March 2014