Death creates a void in the lives of the family and loved ones left behind. While hearts are grieving, practical matters must also be tended. The deceased likely owned property had some outstanding bills at the time of death. The court procedure for handling and wrapping up those affairs is called probate. Knowing how probate in Ohio works can help both the person administering the estate and the surviving loved ones follow and participate in the process.
Understanding How to Probate a Will in Ohio
Generally speaking, probate is the process of opening a case in the probate court, which oversees the distribution of the estate of the deceased. Some of the estate may be paid in cash to creditors for the payment of outstanding bills, other parts may go to heirs named in the will. Overall, probate in Ohio involves an administrator or executor, approved by the court, to identify the debts and assets of the estate and distribute the assets as directed by relevant estate planning documents except for assets that pass outside of probate.
By understanding the probate process, those left behind can better assist with and follow the wrapping up and distribution of the estate.
An Overview of Ohio Probate
Probate is the legal process of validating a person's will, if there is one; paying the person's outstanding debts; and distributing the person's property to the people entitled to inherit it. The testator is the person who has made the will. In Ohio, the probate court will accept the deposit of a will in the county where the testator lives either before or after the testator's death.
Upon the filing of a will and payment of a $25 fee, the probate court judge will provide a certificate of deposit. While on deposit in the court, the will remains in a sealed envelope labeled with the name of the testator, the name of the person who deposited the will, and the date of that filing. It may also have the name of a person who is to receive the will after the testator dies. The envelope will not be opened until it is delivered to a person entitled to receive it.
If no person whose name is on the envelope demands the will, it will be opened publicly in probate court within one month of the testator's death and kept in the office of the probate judge until offered for probate.
Do All Estates Need to Go Through Probate in Ohio?
The short answer is no. Pursuant to Ohio probate laws, only assets that the testator does not hold in common with other people are required to go through probate. Assets that pass to one or more co-owners or are payable upon death are said to pass outside probate.
Although state law does not require all estates to be probated, it is recommended that all estates go through probate in order to assure that all assets, known and unknown, pass to the appropriate heirs. Probate of previously unknown assets months or years after an estate could have been probated is much more difficult than probate proceedings held shortly after the deceased's passing.
Some estates going through probate may be released from administration, which simplifies the probate process. Release from administration is possible under these circumstances:
· The value of the estate assets is $35,000 or less; or
· The value of the estate is no more than $100,000 and:
o The decedent left all of his or her estate to the surviving spouse; and
o The will is determined to be valid.
This simplified probate process may take as little as two to four months before the distribution of assets to the appropriate heirs.
In addition to a release from administration, certain low-assets estates may be eligible for a summary release from administration. Eligible estates meet the following criteria:
· The testator's estate is worth less than $5,000 or the cost of funeral expenses. In these cases, anyone other than the surviving spouse who has paid or is obligated to pay the expenses may ask the court for summary release from administration.
· The estate value is no more than $45,000 and:
o The surviving spouse inherits everything;
o The surviving spouse is entitled to a family support allowance;
o The surviving spouse has already paid or is obligated to pay funeral expenses.
Estates that meet these criteria may ask the court for permission to avoid the probate process altogether.
How Long Does the Probate Process Take?
Formal probate can take at least six months, which is the amount of time creditors have to file a claim against an Ohio estate. The length of the probate process depends on several factors:
· The size of the estate;
· The complexity of the assets; and
· Whether there are disputes or challenges to the will or errors in filing documents.
Depending on these factors, probate can take up to two years or longer.
Is Probate in Ohio Expensive?
There are several costs and fees associated with probate in Ohio. Common costs of probating an estate include these:
· Filing fees and court costs;
· Appraisal fees (payments made to someone to evaluate how much a home is worth); and
· Attorneys' fees, if any.
The nature and size of the estate and the county where the probate case is opened have a large impact on the cost of probate. Filing fees and court costs vary by county but are sometimes based on the size of the estate.
Generally, large or complex estates are more expensive to probate. The assistance of an attorney is often necessary, and attorneys' fees are often charged on an hourly basis. Also, the estate executor's fee might also be higher if the estate is worth more, even though the percentage rate of the fee decreases with the worth of the estate. For example, the executor's fee would be $4,000 for an estate worth $100,000 (four percent of the value of the estate). An estate worth $200,000 would incur a total executor's fee of $6,000 (three percent of the estate's value).
Although as of January 1, 2013, Ohio no longer has an estate tax, federal estate taxes may still apply.
I Have Other Questions about Probate in Ohio
The probate process can be confusing at an already difficult time. Anna M. Price, a compassionate Ohio estate planning attorney at Jenkins Fenstermaker, can help guide you through probate in Ohio and your other estate planning needs. For a free consultation, call Anna at (304) 523-2100 or (866) 617-4736 toll-free, or complete her online contact form.