My Parent Passed Away in Ohio, Do I Need a Probate Lawyer?

The loss of a parent is something none of us looks forward to, but almost all of us will need to face.

While you are going through the grief that often accompanies the loss of a parent, handling your parent's estate is likely the last thing on your mind. Your parent's estate is made up of the things they owned and includes real property (the residential home and any rental properties), personal property (non-real estate property like jewelry, etc.), and other assets like bank and retirement accounts. Sometimes your parent's wishes may be well-known and your family will agree on how your parent's assets should be divided and distributed. But other times, things are not-so-clear, and not-so-amicable. That's really where the probate court, and an Ohio probate attorney, comes in.

Our Columbus probate attorneys primarily serve the Ohio probate courts in Franklin County and Delaware County. But our observations on Ohio probate law here apply generally throughout the state.

Is probate court required in Franklin and Delaware County, Ohio?

Many people fear the probate process, believing it is something to be avoided. And while probate does involve some taxes and court costs, which people may try to minimize or avoid through estate planning, proper titling of assets, and the strategic use of trusts, the goal of probate is to provide unbiased oversight of the distribution of the assets of the deceased, making sure that assets are properly accounted for, equitably divided, and that no one is exerting undue influence over another family member or an infirm spouse of the deceased.

Simply put, probate is the process by which the person named in a Will or, if there was no Will a person appointed by the court, files papers with the local probate court listing the assets and debts of the deceased, and ensures that the correct people inherit what is left and that relatives and creditors are properly notified of a death.

Do the Franklin or Delaware County Probate courts review everything my parents owned?

Not all assets are subject to probate. This is where working proactively with an Ohio estate planning lawyer to strategically and properly title assets before death can be helpful to keep assets out of probate court and assure a faster transfer of assets.

Generally, the only assets subject to probate court oversight are assets owned by the deceased person alone. Thus, a marital home owned jointly by your parents would not go through probate when the first parent dies, assuming your parents were still married. Ownership of the asset would simply be transferred to the surviving spouse. The sole owner of real estate, often the the surviving spouse, can also designate someone to whom real property will be transferred upon death using a Transfer on Death Affidavit (TOD), which specifies that the property pass directly to a person designated in the affidavit upon the death of the owner.

In a similar way, joint bank accounts are not subject to probate when the first spouse dies; rather, the second spouse takes sole ownership of those assets. The same goes for other types retirement accounts and investment vehicles. An estate planning lawyer can guide a client through the proper titling of assets so that ownership transfers directly to another owner upon the death of the original owner. Through proper titling, many assets can be distributed outside of the probate process.

Through proper planning, the assets subject to probate oversight may be fairly few. There are, however, nuances to properly filing paperwork with the probate court, like knowing which forms to file, making sure all estate assets are to be included in an accounting, filing deadlines, and even something as basic as where to file probate court paperwork. While probate court staff are generally very helpful, they are not permitted to provide legal advice.

I was appointed the estate executor for an Ohio estate. Do I need a probate attorney, or can I go to court myself?

If your deceased parent had a Last Will and Testament (a Will), they died testate, which simply means they had a Will. The Will identifies an estate executor (or executrix, if this person is a woman). This is the person your deceased parent designated to handle their estate, and who will be the point of contact for the probate process. The executor does not get any preferential in the distribution of assets. He or she is simply the person designated to handle the administration of the estate on behalf of your deceased parent.

If the executor does not wish to serve, he or she can decline, and an alternate executor will take over those duties.

If your parent died without a Will, they died intestate, and the court will appoint an estate administrator (or administratrix, if this person is a female). The administrator serves the same function as the executor.

While an executor or administrator can probate a Will without the assistance of an Ohio probate attorney, it is not something I recommend. There are a wide array of forms available on both the Franklin County and Delaware County Probate Court websites, and it is difficult for someone without legal training to know which form to file. The forms often have similar names, and the difference between the forms can be fairly minor to the untrained eye.

Likewise, as with almost court proceedings, the probate process is driven by dates and time-frames. By hiring a Columbus probate attorney familiar with local rules in the Franklin and Delaware County Probate Courts, you give yourself and your family peace of mind in knowing that the distribution of assets will be handled properly and professionally, that all assets will be properly accounted for, and that information will be submitted to the court on time.

Courts often require multiple appearances by the person handling the administration of an estate. This is another instance when it is beneficial to hire a probate attorney. If you are handling probate by yourself, you will need to re-arrange your schedule, sometimes more than once, to go to probate court and meet with the judge handling the your parent's estate.

What if my parent died in Ohio with very few assets? Do I still need to go to probate court?

If the value of your deceased parent's estate is less than $100,000 and it all goes to a surviving spouse, you may file a Release from Administration, which would ask an Ohio probate judge to forego administration of the estate. Likewise, if your deceased parent's estate has a value of less than $5,000, you can file a Summary Release from Administration. However, when seeking a Release from Administration, it is important to be certain that all assets are included.

If you were appointed executor of your deceased parent's estate and have questions about the probate process or estate administration, contact the attorneys at Wolfe Legal Services today. We counsel and advise clients on estate planning and probate law throughout Ohio, including Columbus, Franklin County, and Delaware County. Each client is important to us, and we take pride in making sure we understand your unique situation. Call us today at (614) 263-5297 or fill out our online form.