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What
is probate?
Probate is a legal proceeding to administer certain kinds of property (called probate
property) owned by someone who has died (the decedent), and to see
that claims, expenses and taxes are properly paid, and that the remaining
estate is distributed to those entitled to receive it under the decedent's
will or Ohio law. Probate property is all property titled in the
decedent's name alone. It is distributed only under the decedent's will
or according to Ohio law. A probate proceeding takes place in the
probate court of the county where the deceased property owner lived. If
the deceased also owned real estate in another state, additional proceedings
may be necessary in that state.
What
property is not included in probate?
Property
that is not probate property, and is therefore not addressed in
any probate proceeding, includes: 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 will transfer on
death (TOD) to a named beneficiary; and insurance or retirement benefits
that are payable to a named beneficiary.
Property
that must be included in probate and property that is subject to estate taxes
are two different matters. Even if property is not included in probate,
it still may be subject to federal or Ohio estate taxes.
Why
is probate necessary?
Probate is necessary to give the executor or administrator legal authority
to deal with the decedent's probate assets. The executor or
administrator then has the authority and duty to protect the assets of the
decedent for the beneficiaries, heirs, creditors and other persons due money
from the estate, and to ensure the collection of money due to the
estate. Probate provides for payment of outstanding debts, taxes and the
expenses of administration, and for the distribution of the remainder of the
estate to the beneficiaries and heirs.
What
does probate involve?
Probating an estate requires the appointment of a person 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 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 takes care of the following tasks:
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caring for all property of the
decedent; |
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receiving payments due the estate,
including interest, dividends and other income; |
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collecting debts, claims and notes
due the decedent; |
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determining the names, ages,
addresses and degree of relationship of all heirs; |
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determining the names, ages and
addresses of all beneficiaries, if there is a will; |
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investigating the validity of all
claims against the estate and paying all outstanding obligations
including federal, state and local estate and income taxes; |
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planning for federal and state taxes
and preparing and filing estate tax returns when required; |
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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 supervises the work of the executor or
administrator. These actions require the preparation and filing of
numerous 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 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, the assistance of an attorney usually is needed.
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?
The costs assessed by the probate court are based on a schedule of charges
established by law for each type of document filed in the court. Costs
typically are about $200.
Attorney fees charged for handling matters of the estate must be approved by
the court and typically are based on an hourly rate for the actual services performed by
the attorney.
How
long does probate take?
A small estate that does not require the filing of an Ohio estate tax
return often can be settled within six months of the appointment of the executor or
administrator. However, if an Ohio or 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 is an audit of a federal estate tax return, the administration often
takes up to an additional year, and an executor or administrator cannot safely distribute
all the estate assets until released from personal liability for estate
taxes. An extraordinary administration involving a contested will or complicated
tax litigation may take several years or more to complete. Claims against the estate
may be made up to six months from the date of death. However, in many
cases, 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 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 can also dispense with the requirement of a surety
bond, which an administrator might otherwise have to pay.
Wills
must be filed in the probate court upon death. The law provides
penalties for the withholding or destruction of a will.
If
you do not make a will, your property will be distributed according to the
Ohio Statute of Descent and Distribution.
The
information contained in the pamphlet is general and should not be applied to
specific legal problems without first consulting your own attorney.
(Updated
10/01/2004)
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