You've heard countless times that you should have a will. But have you ever wondered what will happen to your property if you should die before you get around to making one?
The short answer is that the State of Ohio has a law, known as an intestacy statute, which dictates how your property will be distributed. Intestacy laws generally attempt to distribute your property as the state imagines most people would do if they had actually made an estate plan. It's a very "one size fits all" system, and like all things that are "one size fits all," it often doesn't fit a particular individual's needs very well.
A surviving spouse would inherit everything if the decedent left no children (or their lineal descendants, such as grandchildren or great-grandchildren). The surviving spouse would also take everything if there were children, grandchildren, or great-grandchildren, so long as those descendants were descendants of both the decedent and the surviving spouse.
From there it gets a little more complicated. People who are divorced or widowed often remarry, leaving a <… Read More
It doesn't just happen in the movies: it's possible that in real life, a relative has passed away and left you a part of their estate. But how do you find out?
The answer depends on how you think the money might have been left to you. When most people ask whether they have an inheritance, they are thinking of the probate estate of the deceased person, also known as the decedent. So the first thing to do is to review the decedent's probate case.
When a person dies owning money or other assets in their sole name (as opposed to trust assets or assets held jointly with another person, like a house or joint bank account), that property must go through probate after their death in order to be administered to heirs. This is true whether or not the person had a last will and testament.
Probate matters are public record. If your deceased relative last resided in Montgomery County, Ohio, for instance, their probate case would be filed in the Montgomery County Probate Court. You would be able to look up, and look at, any documents in the case,. This would… Read More
Probate is the legal process of administering certain property of a person who has died. It involves verifying that the will, if there is one, is valid; identifying and gathering the property of the deceased; paying any valid claims, taxes, and expenses of the estate; and distributing the remaining assets to those people who are entitled to receive it.
Probate will be required any time there is property owned in the sole name of the deceased person, also known as the decedent. Probate is required regardless of the value of the estate. There are also several types of so-called non-probate property, which pass outside of Ohio probate.
Less commonly, probate is necessary when a person becomes incapacitated, does not have powers of attorney in place, and a loved one needs to petition to become the guardian of the incapacitated person.
Non-probate property passes directly outside of the probate process to a survivor, named beneficiary, or a successor in interest. Examples of non-probate property include:
If you are serving as the executor or administrator of a loved one's probate estate, you may be wondering if you really need the assistance of a probate attorney. Strictly speaking, you are not required to have an attorney's assistance to probate an Ohio estate. But there are several reasons that you will likely need a lawyer's help.
If your concern is the expense of an attorney, there's good news: the cost of an attorney's services in probating an estate do not come out of your pocket, but out of estate funds. Furthermore, the services of an attorney can actually save an estate money by making sure estate business is handled properly the first time around.
If the estate includes real estate, such as a house or rental property, an attorney is essential.
If you need to probate an estate that conta… Read More
In a nutshell, the probate process involves identifying the assets of a recently deceased person (decedent), gathering them, inventorying and valuing them, and distributing them to the decedent's heirs. Prior to distributing assets, the personal representative or administrator of the estate must notify any creditors of the estate of the decedent's death.
If there is a will, it must be submitted to the probate court for authentication. If the will names a personal representative, the court will appoint that person to administer the estate unless he or she is ineligible, unwilling, or unable to do so. If there is no will, the court will appoint someone suitable as administrator of the estate, often a close relative of the decedent.
In general, any assets that the decedent owned in his or her own name at the time of death go through probate. This means that property owned jointly, like joint bank accounts or jointly-held real estate, are not subj… Read More
The word "probate" itself means to prove or validate. So, probating a will is the process of proving that the document is authentic, a true representation of the wishes of the person making the will, known as the testator. Even if a last will and testament truly represents the testator's wishes, however, it must also meet certain legal requirements to be valid and legally enforceable in Ohio.
A will generally does not have any legal effect until it is probated. Let's say a testator keeps his will in his desk drawer, and his wife, who knows the will's location, is named as personal representative. When the testator dies, the wife cannot simply take out the will and distribute the property as it dictates. The Ohio probate court for the county in which the deceased testator lived must first probate the will, then oversee the distribution of assets. If a testator lived outside of Ohio, but owned real property in Ohio, his or her will must be probated in Ohio as well as the home state.
Wills must be probated in orde… Read More
A probate lawyer's primary function is to advise the personal representative of a deceased person's estate in the administration of the estate. Whether or not the deceased person (decedent) had a will, there are many legal requirements that must be followed in handling the estate. The personal representative (sometimes also called an executor or estate administrator) has many responsibilities and is charged with protecting the rights of both creditors of the estate and heirs.
Most personal representatives are family members who are not terribly familiar with probate law. The law recognizes that, for this reason, the services of an experienced probate attorney are a benefit to the estate, and the attorney's fees are paid from estate funds, not the personal representative's.
The probate attorney guides the personal representative through every step of the Ohio probate process, which includes:
If a loved one recently passed away, having named you personal representative (executor) of his or her estate, your first task should be to choose a probate attorney to guide you through the Ohio probate process. You may also be looking for a probate attorney if the deceased's will did not name an executor, if the named executor is deceased or otherwise unavailable, or if you believe the current executor is not carrying out his or her duties.
Knowing you need a probate attorney is one thing; selecting and retaining one is another. There may be a sense of urgency, but it's worth taking the time to be sure that your probate attorney has the knowledge of Ohio probate law and the experience in local probate courts to efficiently and effectively guide you through the probate process.
This article assumes that you are the personal representative of the deceased person's (decedent's) estate, but these guiding principles are relevant no matter what your reason for seeking a probate attorney.
First and foremost, probate work should be a significant part of the attorney's practice, not just something they do to help ou… Read More