Estate administration is the primary area of the Probate Court. Executors and Administrators are represented in properly completing the administration of deceased individual's estate. This includes payment of bills, accounting for all of the property the decedent owned at the time of death and properly distributing this property to the heirs, and the preparation of any necessary estate tax or income tax returns for the estate.
Complete representation in guardianship matters is provided starting with the appointment of the guardian, thru the administration of the guardianship, to the accounts which are filed with the probate court.
What is Probate?
When an Ohio resident dies owning probate property in the state, a legal proceeding to determine the deceased's assets, law provides for their value, and the method of distribution of heirs. This proceeding is called probate , and it occurs whether the person dies with or without a will. Probate takes place in the Probate Court of the county where the deceased property owner resided. If the descendent also owned property in another state, additional proceedings may be necessary in that state. Probate property is all property that is not covered by any contract providing for a succession on the death of the owner.
Why is Probate Necessary?
Probate is necessary to protect the assets of the decedent of the heirs, creditors, and other persons due money from the estate, and to ensure the collection of money due to the estate. Probate provides for payment of outstanding debts and taxes and the expense of administration and distribution if the remainder of the estate to the heirs.
What Does Probate Involve?
Probating an estate requires the appointment of a person
to conduct the administration of the estate. If there is a will, this person is usually named in the will and is called an executor . If there is no will, this person is appointed by the Probate Court and is called an administrator . The executor or administrator may be an individual, a bank, or a trust company.
The executor or administrator takes care of the following tasks:
- Caring for all property of the decedent
- Receiving payments due the estate, including interest, dividends, and other income
- Collecting debts, claims, and notes due the decedent
- Determining the names, ages, residences, and degree of friendship of all heirs
- Investigating the validity of all claims against the estate and paying all outstanding obligations including federal, state, and local estate and income taxes
- Planning for federal and state taxes
- Carrying out the instructions of the Probate Court pertaining to the estate and distributing the assets of the estate to the heirs
The Probate Court judge supervises the work of the executor or administrator.
These actions require the preparation and filing of numerous legal documents, the publication of notices, hearings in court, an appraisal of the assets of the estate, an inventory of the assets, completion of final income tax returns, and possibility gift and estate tax returns, an accounting of funds, final transfer of all assets to beneficiaries, termination of the probate proceedings, and discharge of the executor or administrator by the Probate Court. Because of the complexity of these procedures, the assistance of an attorney usually is needed.
If the total value of all property in the descendant's individual name is less than $35,000, the estate can be relieved from most of these administrative requirements. In most estates, an Ohio Estate Tax return must be prepared and filed, and if the decedent also owned a substantial amount of life insurance or held a substantial amount of property jointly with other persons, a Federal Estate Tax Return may have to be filed.
The Cost assessed by the Probate Court is based on a schedule of charges established by law for each type of document filed in the Court. Attorney fees charged for handling matters of the estate must be approved by the Court and are generally based on the value of the estate and the actual services performed by the attorney.
Normally, it takes about five months to complete the probate of an estate. However, if a Federal Estate Tax Return is required, the administration of the estate can last a year or two. (Taxes are not due until nine months after the descendant's death.) The audit of a Federal Estate Tax Return often takes another year, and an executor or administrator cannot safely distribute the estate until released from personal liability for federal taxes. The average administration of an estate takes no more than two years, while an extraordinary case involving a contested will or complicated tax
litigation may take three years or more. Claims against the estate may be made up to one year from the date of death.
“Joint Tenancy with right of survivorship” is a form of co-ownership of property whereby two or more persons own property together. On the death of one joint owner, proceedings may still be required to transfer title of certain assets and to determine taxes. Joint tenancy can be useful device in certain situations. However, the unrestricted use of this device can lead to adverse consequences. Often, litigation over bank accounts occurs to determine whether the creator of the joint tenancy wanted the survivor(s) to be the sole owner(s) of the property.
A properly drawn will assures you that upon your death your property will be distributed as you intended. It is important that you review your will periodically with your attorney in order to keep it up to date.
Wills must be filed in the Probate Court upon death. The law provides severe penalties for the withholding or destruction of a will.
If you do not make a will, your property will be distributed according to the Ohio Statute of Descent and Distribution.