Probate is the legal process of administering property owned by someone who died to make sure 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 the assets titled in the name of the person who died, the decedent, and that are not transferable on death.
Ultimately, the probate property will be distributed according to the terms of the decedent’s Last Will and Testament or, if there was no Will, according to the laws of intestacy.
Probate gives the Estate Executor or Estate Administrator control of the decedent’s estate, to safeguard and properly distribute assets. The process ensures that legally enforceable debts and taxes are paid, and that the remainder of the estate is distributed according to the decedent’s wishes or, if there was no Will, according to statute.
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.
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:
Completing the probate process can take anywhere from 6 months, if everything goes smoothly, up to several years for a complicated and contentious estate. Creditors can make claims against the estate up to 6 months after death. Federal taxes, if required, are filed 9 months after death. A tax audit can take an additional year, during which time the executor cannot safely distribute the assets without risk of personal liability. A Will Contest can complicate matters and may take several years.
There can be severe taxes and penalties for failing to go through probate. There are also penalties for withholding or destroying a Will.
This is a somewhat controversial question. On one hand, our society is rightfully concerned about people taking advantage of the elderly and the infirm, and exerting undue influence over someone who might not have full control of their mental faculties. In cases like this, it is important for an independent, unbiased third party to oversee the process, making sure that a decedent’s assets are properly accounted for and distributed, and that all debts are paid.
On the other hand, people are equally and rightfully concerned about their privacy. Anything filed with the probate court becomes public record, available to anyone who wishes to look for it. Some people do not like this and take steps to protect their privacy. Likewise, some people do not like that someone else, in this case a probate judge, will oversee the distribution of their assets.
For situations like these, there are tools available to minimize or even avoid the probate process. For example, a probate attorney may draft a revocable living trust. Assets titled in the name of the trust are non-probate assets and, therefore, are not subject to review by the probate court.
Likewise, an estate planning attorney can advise you on the proper titling of assets using, for example, joint ownership of assets, Transfer on Death documents and clauses, or naming someone as a beneficiary on a retirement account.
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. Thus, Franklin County has one set of rules while Delaware County has another, slightly different set. Because of these complexities, it is beneficial to hire an attorney familiar with the process, and with each individual court. Otherwise, you run 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 delay the administration of the estate.
If you have questions about the Ohio probate process, Contact Wolfe Legal Services today for answers. I represent clients throughout Central Ohio. Call me at (614) 263-5297 , or fill out our online form.