Columbus Ohio Probate Lawyer

What is probate?

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.

Why is probate necessary?

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.

What does it mean if someone “died intestate”?

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.

How much does probate cost in Franklin County, Ohio?

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:

• Filing fees and court costs, which are usually a few hundred dollars
• The Estate Executor’s fee, which is usually based on a percentage of the decedent’s property and income, as well as the value of any non-probate property. The Executor may request a higher fee for extraordinary services or for a particularly complex estate.
• Attorney’s fees, which are generally calculated at the attorney’s hourly rate and are subject to approval by the probate court
• Appraisal fees
• Any applicable federal or state estate taxes

How long does Ohio probate take?

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.

Can’t I just skip the probate process?

There can be severe taxes and penalties for failing to go through probate. There are also penalties for withholding or destroying a Will.

Why do people try to avoid probate?

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.

So I need to go through Ohio probate. What do I do?

1. Determine whether the decedent had a Will. It may have been filed with the probate court in the county where they lived. However, I often advise my clients not to file their Will with the probate court while they are still alive. If you do and wish to make changes to your Will, you will need to go to court to retrieve the Will. Keeping your Will on file with the probate court in the county where you live might be advisable for people who are prone to misplacing or losing important documents, suffering from Alzheimer's or dementia, or for people who believe that their Will will be contested.
2. Determine which court has jurisdiction over the decedent’s estate. This will be the probate court for the county in which the decedent lived. If the decedent owned real estate in another state, you will need to go through probate in that state, as well.
3. The probate court will have various forms to complete. Begin by filing an Application for Probate. You will also need multiple certified copies of the Death Certificate. One will need to be attached and filed with the Application for Probate.
4. Provide Notice to the Heirs, or obtain a Waiver of Notice using the correct probate court forms. If the decedent’s heirs do not sign a Waiver, they need to be served. To know who needs to be notified, it is wise to consult with an experienced probate attorney who understands the rules of intestacy, and which heirs have priority in the distribution of assets. The notification process needs to be completed properly, by formally serving all the heirs.
5. The Waivers of Notice will be filed with the probate court. For those heirs who did not waive notice, you must be able to prove that they were properly served.
6. The Will must be proved, which is the process through which the court determines that the Will is valid, that it is indeed the Last Will and Testament of the decedent, and that there is not a more recent Will. This is the stage where an heir might contest the Will, claiming, for example, that the Will is invalid, or that the decedent did not have testamentary capacity at the time the Will was signed.
7. The court will appoint a personal representative, usually the Executor named in the Will, and will issue Letters of Authority. If there is no Will or no Executor named in the Will, the court will appoint an Estate Administrator. The Executor or Administrator is responsible for:

• Caring for the decedent's property
• Receiving payments and collecting on debts due to the estate, including interest, dividends and other income
• Determining the names, ages, addresses and degree of relationship of all heirs and, if there is a Will, all beneficiaries
• Investigating the validity of any claims made against the estate, and paying all outstanding obligations;
• Planning for and paying relevant estate and income taxes
• Carrying out the instructions of the Ohio probate court pertaining to the estate and distributing the assets of the estate to the heirs.

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.