When is Probate Required in Ohio?

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 in Ohio

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:

• Life insurance benefits payable to a named beneficiary or beneficiaries
• Retirement benefits payable to a named beneficiary or beneficiaries
• Real estate owned by the decedent and another person as joint tenants with rights of survivorship (JTROS)
• Joint bank accounts
• Payable on death (POD) or Transfer on Death (TOD) accounts
• Property held in a trust

Many Ohioans do try to bypass probate altogether using a combination of these devices, particularly living trusts, to contain assets. Even if there are probate assets in an estate, it is possible that the estate will qualify for small estate probate, or simplified probate.

Ohio Small Estate Probate

Ohio provides for a streamlined probate process known as "small estate probate." An estate qualifies for small estate probate if the following conditions are met:

• The value of the probate estate is $35,000 or less OR
• The value of the probate estate is $100,000 or less and the entire estate goes to the decedent's surviving spouse.

If, for example, a person owned a home worth $300,000 jointly with their spouse, had a joint bank account with their spouse, owned a vehicle, had an IRA and a 401(k), a life insurance policy designating their spouse as beneficiary, and $25,000 worth of personal property such as clothing, books and jewelry, small estate probate would be an option. The house and bank account would pass directly to the surviving spouse. The surviving spouse would receive life insurance and retirement account benefits as the designated beneficiary. The surviving spouse could have the vehicle transferred into his or her name through a simple Ohio BMV process, and the personal property could pass through the small probate process.

Avoiding Ohio Probate is Simple

Even if you have too many assets to qualify for small estate probate, a little planning is all that is necessary to keep your estate out of probate. Living trusts are not just for the wealthy, and offer a number of benefits in addition to avoiding probate. These include privacy, greater control over assets, and possibly lower costs, since expenses of probate are typically avoided.

If you are concerned about whether your estate will need to go through probate, consult an experienced Ohio probate and estate attorney to explore the use of living trusts and other estate planning tools to help ensure your assets will pass to your heirs outside of probate.