What Does it Mean to Probate a Will?
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.
Why Must Wills Be Probated?
Wills must be probated in order to prevent fraud and protect heirs. In the example above, if the testator's spouse were allowed to distribute his assets according to the document she claimed was a valid will, any number of injustices could happen. The will might be a fake or forgery, or someone could have exerted undue influence on the testator to make the will. The estate assets might be distributed, only to have a more recent will, a creditor, or a previously unknown heir discovered later.
A court's oversight lets an objective fact-finder determine whether a document that purports to be a will is, in fact, the testator's most recent will. Even if some provisions of the will are invalid or impossible to carry out, the rest of the will (if it was properly executed) can be given effect. Court involvement also ensures that creditors, taxes, and other expenses of the estate are paid before assets are distributed to heirs.
A will should be probated as soon as possible after the testator's death. A person who has possession of the original will is legally obligated to produce it; often, this is the testator's spouse, personal representative, or attorney. There are penalties for intentionally concealing or destroying a will.
If a will has been lost, spoiled, or destroyed, it can still be probated, but is especially important to have the assistance of an Ohio probate attorney to do so, as is is necessary to prove that the will was not destroyed by the testator as an attempt to revoke it. As a general rule, a copy of a will cannot be probated unless the court has been satisfied that there is a good reason that the original is not available.
Probating an Ohio Estate Without a Will
What if the deceased did not leave a will? If a person dies without a will, they are said to have died "intestate." In most cases, their estate must still go through the Ohio probate process for intestate estates. The court will appoint an administrator for the estate, who will have most of the same responsibilities as a personal representative.
Whether there is a will to submit to probate or no will at all, it is almost always advisable to have experienced legal counsel. A personal representative or administrator of an estate may in some cases be held personally liable for errors or omissions in the administration of the estate. Legal guidance can avoid such pitfalls, and save time and money in the long run.