Ohio Probate Lawyer Blog

There's no automatic process for probating an estate when someone dies in Ohio. Someone must take steps to file a will with the probate court or otherwise open a probate case. But what happens if no one does?

The answer depends in part upon whether the deceased person (decedent) is known to have left a will. If they did, and an heir has the power to submit it for probate but without good cause intentionally fails to probate the will within a year of the death, they could lose their right to inherit under the will. If there is no will, and a person (like a close family member) would be entitled to administer the estate, they are obligated to open a probate estate within a reasonable time. If they do not, they could lose their priority to administer the estate..

Risks of Failing to Settle an Estate

One risk of failing to settle an estate is that estate assets cannot be properly transferred to others, Read More

Whether you need a probate lawyer to help with the estate of a deceased loved one, assist with a guardianship, or represent you in an Ohio probate dispute, you should make sure the attorney who represents you can meet your needs. But how do you choose a probate attorney?

You may not have the luxury of weeks or months to research and interview different attorneys, although you should certainly do as much research as you are able. Here are five questions to help you get to the bottom of things in the limited time you may have.

How long have you been practicing Ohio probate law?

New attorneys may be very smart, diligent and responsive—all good traits. If you interview a newer attorney and are confident in their abilities, by all means consider retaining them. But remember that there is also no substitute for experience. Experienced Ohio probate attorneys are familiar with the practices of the local probate courts,… Read More

If you've been named the personal representative (also known as the executor or administrator) of an Ohio probate estate, you may be concerned about how best to fulfill your duties, or even whether you're able to do so. You may feel honored to have been chosen as an executor, but unsure whether you were the best choice.

You're right to feel some trepidation. As a personal representative of the estate, you could have personal liability for failure to properly carry out your duties as executor. It's natural to want to delegate those duties to someone else if you can. But should you withdraw? And if you should, how do you go about doing so?

Do I Have to Serve if I am Named as Executor in a Will?

You may feel a sense of personal obligation to the deceased to serve as executor if a loved one selected you and named you as such in their will. However, rest assured that you have no legal obligation to serve in that capacity. There is no set time by which you must refuse your appointment or renounce it if you have already accepted it. However, as a general rule, the ea… Read More

The short answer to this question is: sort of. Unlike other states, like Colorado, which require a will to be submitted to probate within days of the death, or Pennsylvania, which has a criminal statute for failing to submit a will for probate, Ohio has neither a strict time limit nor a criminal penalty for failing to probate a will.

However, with or without a will, there are a number of reasons you might want to open a probate case if one of your family members has passed away.

What Happens if I Don't Open a Probate Case?

You won't go to jail for failing to open a probate case in Ohio, but that doesn't mean there won't be consequences. Under Ohio law, if you are the beneficiary of a will, and you know of the will's existence and have the power to do so, you are obligated to have it submitted for probate within a year. If you intentionally withhold or conceal it or cause it not to be probated absent reasonable cause, you lose your right to inherit under the will.

For many people, avoiding the probate process and having their assets pass outside of probate after their death is a priority. Ordinarily, having a life insurance policy does not interfere with that goal. In most cases, the proceeds of a life insurance policy pass directly to the named beneficiary without any probate involvement.

However, there are circumstances in which life insurance benefits must go through probate, which can delay payment to loved ones and even reduce the amount of funds available through the policy. Fortunately, there are relatively simple ways to avoid these situations, and ensure that funds are available for you loved ones when they need them.

If Your Life Insurance Beneficiary Has Died

What happens if you have someone named as the beneficiary of your life insurance policy, and your beneficiary dies? The answer depends on when the beneficiary dies. If they die before you, the policy benefits will go to any co-primary benef… Read More

Sometimes life seems more complicated than it needs to be. You have an asset, like a bank account. You know who you want to have the money in that account when you die. Why should you have to identify that account in your will and specify who should get the money in it? Why should they have to wait for months for probate to be completed to access the funds you meant them to have?

You could always make your intended beneficiary a joint owner of the account while you're alive. That would keep the account assets out of probate. But that comes with its own burdens: a joint owner of the account has equal access to the funds in it, even if those funds were provided by the other joint owner. Joint accounts are fine in some situations, but problematic in others.

There's got to be another way—and there is. It's called a transfer on death (TOD) account, and it bypasses both probate and the issue of an intended beneficiary dipping into funds earlier than you'd prefer.

How Do Transfer on Death Accounts Work?

Transfer on death accounts, sometimes also called payable on death… Read More

One of the simplest ways to keep an asset out of probate is to title it in such a way that it is not subject to the probate process. In most cases, your access to or use of the asset won't change—only the way the asset is transferred after your death.

It's important to be aware of how using title to an asset can keep it out of Ohio probate, and the benefits and risks of transferring assets in this way.

Assets that Can Be Titled to Avoid Ohio Probate

In some cases, changing the way an asset is titled can be accomplished with minimal assistance. One example of this involves bank accounts. If you have $100,000 in a bank account in your name, and you want it to pass to your adult son after your death, you can go down to the bank and convert the account into a joint account, titled in both your names. When you die, your son will become sole owner of the account so long as survivorship rights are specified in the document creating the joint ownership. Brokerage accounts, like bank accounts, can be jointly titled.

Just remember, if your son becomes incapacitated or dies first, probate will likely be necessary. Also, even if you die first, probate will no… Read More

What's your worst fear as a parent? If you're like many people, it's the prospect of dying prematurely and not being able to care for your young children.

Unfortunately, you have limited control over your health and the length of your life. But you have nearly total control over making sure your children are cared for. If anything should happen to you, they'll need a guardian to stand in your place, and you have the ability to choose whom that will be. If you fail to make a choice, a court will decide for you. The person a court decides—typically a close relative—may not be the person you would choose.

Therefore, it's critical that you think about whom to appoint as your child's guardian in your will or power of attorney. Failing to clearly and effectively appoint a guardian can lead to a legal battle that will be devastating for your child and the rest of your family. The decis… Read More