» Probate Process
Serving as executor of a loved one's estate carries many responsibilities, and often, it seems, nearly as many pitfalls. Most family members who serve as executors have little experience doing so, making the task even more challenging. Unfortunately, it is possible to make missteps in administering an estate and not realize it until after the harm is done.
It may be helpful to become aware of some of the more common, and sometimes surprising, mistakes that executors make, and learn how you can avoid them.
Rushing Administration of the Estate
It's very important to open a probate case promptly, but take enough time to make sure you're doing the right things in the right order. Mishandling of estate business, even inadvertently, can result in personal liability for an executor. Even if you're not held liable for a mistake, errors caused by haste could delay the resolution of the estate.
For instance, Ohio law forgives almost all unsecured creditor claims if the estate is not opened for six months after the death. Opening the estate too soon could result in the loss of thousands of dollars.
Paying Bills as Soon as They're Received
Chanc… Read More
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… Read More
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)?
Who Should Open an Ohio Probate Case if There is a Will?
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,… Read More
Receiving an inheritance is often bittersweet: on the one hand, you've likely lost someone dear to you, but are receiving some tangible remembrance of them. How long do you have to claim? And can you wait too long to claim your inheritance?
Chances are, you won't have to do much at all in order to receive what you are entitled to. The executor of the deceased person's estate is required to notify you if you are named in the will. If the deceased died without a will or estate plan, the administrator of the estate is required to notify you if you would inherit from the deceased under Ohio intestacy law.
If your whereabouts are known and you are entitled to inherit, the executor or administrator will distribute your share to you in order to be able to do a final accounting and close the estate. You don't have to affirmatively request it. Understand that even if you were bequeathed a certain amount, you may receive less than that if the estate didn't have enough assets to both satisfy creditors' claims… Read More
Much of estate planning is aimed at minimizing or eliminating the need to probate a deceased person's (decedent's) estate. Probate can be time-consuming as well as tying up estate assets. And while as a general rule probate is less complicated than it used to be, the cost of the process does consume some estate assets.
That said, there are some good reasons to go through probate, and in the final analysis, doing so may actually save the estate money. You should put a decedent's estate through probate:
If Heirs Want Certainty Regarding Claims Against the Estate
In Ohio, creditors have six months from the death of the decedent to present any claims they may have against the estate. Otherwise, those claims are barred. Therefore, the probate process provides a level of certainty that unknown creditors won't pop up later, insisting on payment.
On a related note, the probate process offers heirs an opportunity and forum in which to challenge the validity of any alleged claims. If a creditor tries to col… Read More
This is one of the most common questions for personal representatives of a deceased person's estate and for many heirs. The answer, of course, is "it depends." The chief determining factors are the size of the estate, the complexity of the assets, the number of heirs, and whether there are likely to be any disputes or will challenges. Taking into account those factors, it is possible to at least estimate how long an Ohio probate estate will take to administer.
Summary Release from Administration in Ohio
For very small estates, summary release from administration is available. This means that there is no probate process at all. An estate qualifies for a summary release from administration if it is valued at $5,000 or less, or if it is valued at $45,000 or less and a surviving spouse inherits the entire estate and is entitled by law to a family support allowance, and the surviving spouse has paid the decedent's funeral expenses or is under obligation to do so.
Release from Administration
Not to be confused with summary release from administration, Read More
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
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.<… Read More
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… Read More