Private Probate: How Private is Your Ohio Probate Matter?

Private versus Public directional signs on guidepost

You don't tell the neighbors your salary, or your coworkers your bank balance, or your friends how much your stock portfolio is worth. And they wouldn't think of asking, because financial matters are considered private.

If you surveyed 100 people, it's likely that none of them would want their personal and financial affairs to be available to anyone who chose to look them up. But few people consider, when making their will, that that's what happens when you open an Ohio probate case.

What Do You Mean, My Probate Case is Public?

Probate court in Ohio is public. Hearings are typically held in open court, which means anybody can be present for a hearing. As a general rule, most probate matters are not terribly exciting, and it's not likely that the general public is going to flock to (or even know about) a routine hearing. Still, you may find it unsettling to know that people you don't know may be able to hear about your family's personal matters.

This is especially true if you think there is even a remote possibility of a will contest or other probate litigation. We realize that's hard to predict years in advance. But if your heirs have a tendency to bicker, or you know you'll be leaving property to someone outside the family, or leaving your children unequal amounts, consider that a will contest is possible.

Of more concern than what happens in open court, however, is what's a matter of public record. Probate files, including a filed last will and testament, are available to the public. Probate files generally cannot be removed from the courthouse, but copies can be made or obtained for a minimal cost. Many Ohio counties make documents available on the internet, and some will even make copies of open hearings available on compact discs for purchase.

Now, it's possible that you may not care about any of this, or who knows what's in your probate estate. But if you are interested in protecting your family's financial affairs from prying eyes, it's fairly simple to do—and may yield some other benefits, to boot.

Avoiding Probate and Protecting Your Privacy

There are numerous ways that you can title assets to avoid probate, and thus preserve the privacy of your estate and your family. One of the most common and beneficial options is the creation of a revocable living trust, often referred to simply as a "living trust."

With a living trust, assets that were formerly titled in your sole name are now titled in the name of the trust. During your lifetime, you serve as the trustee of the trust, which means you control the assets in the trust, and can use them just as you would have when they were in your name. If you are married, you and your spouse can have a trust together.When you die, the assets are managed and distributed according to the terms of the trust—terms that you set, according to your preferences and your family's needs.

Unlike assets referenced in a will, assets held in a trust do not go through probate. That means there is no record of your trust in the probate court unless someone files a lawsuit regarding the trust, which is rare. If you are married and your spouse and co-trustee survives you, they control the assets until their death, when a successor trustee manages and/or distributes them. This tends to be much more seamless and efficient than distribution of assets through the probate process.

Even if you still have some assets that must go through probate, having a trust can reduce the size of your probate estate so that you are eligible for a mores streamlined probate process.

Many people appreciate having a trust because it allows them to exercise more control over the assets they're leaving behind. For instance, if you leave property to someone in a will who is an adult at the time of your death, they receive the property outright and can do with it whatever they wish. If the property is in a trust, you can set the terms of distribution. Assets can be distributed gradually, and under conditions you establish, such as graduation from college, marriage, or reaching a certain age.

If your estate plan leaves property to children who are not legal adults at the time of your death, a trust provides another benefit. When a minor child is bequeathed assets in a will, the court needs to appoint a guardian to manage the assets for the child until they reach adulthood. At age eighteen, they receive full control over that property. With a trust, the trustee continues to manage the assets, distributing them as needed for the support of the minor child as the trust document directs. A trust not only removes the need for a court proceeding, but ensures the person managing the assets is the person you choose.

If the benefits of a trust, including privacy, appeal to you, consult an experienced probate and estate planning attorney to make or update your estate plan.

Categories: Probate Process