Most people know that when an Ohio resident dies, if they have any property in their name that needs to be distributed, the estate must go through the Ohio probate process. But just who is allowed to open a probate case on behalf of a deceased person (decedent)?
If the decedent had a will, the will should name an executor (also known as a personal representative) for the estate. The named executor, whether he or she is a family member or heir, can open a probate case. The probate case should be filed in the Ohio county where the decedent lived. (If the decedent owned real estate in another state, a probate case might have to be filed there, too).
The named executor should present the will and an original death certificate to the probate court along with the petition. If the person named as executor is unable or unwilling to open the probate case or to administer the estate, any interested party may petition the court to have a probate case opened. The court will then appoint an administrator, usually a family member. The spouse of the decedent is given preference to serve as administrator. If they decline, the next of kin will be appointed. The administrator must be an Ohio resident.
If you know you are a beneficiary to a will, and you have the power to submit it for probate but fail to do so, you could lose your right to inherit under it if you delay too long in filing it with the court. It's always best to open a probate case as soon as possible.
If there is no will, the decedent's estate may still have to go through probate. If the decedent had most of their assets in a living trust, joint bank accounts, transfer-on-death accounts, or other forms that do not need to go through probate, or simply did not have many assets, the estate may qualify for a streamlined Ohio probate procedure. It's best to consult an experienced Ohio probate and estate administration attorney to discuss what form of administration is appropriate.
If nobody has moved to open an estate within six months of the death, the deceased's creditors could be frozen out. In Ohio, creditors of the deceased or the estate only have six months from the date of death (not the date the estate was opened) to present claims against the decedent's estate. With few exceptions, claims not presented within this time frame are barred forever. If a creditor is aware of the decedent's death, and no estate is opened, the creditor may petition to have a probate estate opened so that they may present their claims in time to receive payment.
The process of opening an Ohio probate estate can be intimidating if you've never done it before, particularly if the will is likely to be contested, there are numerous creditors, or complex assets. Ohio recognizes that it's a benefit to the estate to have the guidance of an experienced probate attorney. For this reason, the attorney's fees are paid out of estate funds, not the executor's pocket: the attorney's services can save time and money and ultimately benefit all heirs.
So, if you have been named executor of a loved one's estate, or know that their estate needs to be probated, don't delay. Get the help of a lawyer who practices in this area, and make sure that the estate is opened and administered promptly.