Estate Planning Cincinnati: What is Probate?

On Behalf of | Jul 14, 2017 | Probate |

by PJK WHAT IS PROBATE? When a person passes away, their estate is distributed according to the terms of their will or by state law if there is no will. This is accomplished through a process known as probate. Probate courts deal with the processes of ensuring the validity the will, inventorying and appraising assets, satisfying any outstanding debts, and distributing property to the designated beneficiaries. IS PROBATE NECESSARY IF MY ESTATE IS SMALL? In Ohio, we have two different streamlined processes for small estates, there is a Summary Release from Administration and a Relief from Administration.  One of these process is usually available where the estate is $35,000.00 or less, or $100,000.00 or less, if everything is passing to the surviving spouse. If you are unsure whether or not probate will be needed to distribute your estate, an attorney can answer your questions and help you evaluate your situation. WHY SHOULD I HIRE A PROBATE ATTORNEY? Probate is a notoriously complex legal process and has a large margin for error, especially when dealing with high-net-worth estates. A skilled Cincinnati probate attorney can guide you step-by-step through the process and handle any disputes that should arise. Should a dispute escalate to a point where probate litigation is necessary, an attorney can protect your interests and advocate for a favorable resolution on your behalf. HOW LONG DOES PROBATE USUALLY TAKE IN CINCINNATI? Under normal circumstances where no issues arise, probate can take around 8 months from start to finish. This includes a 6-month claim period where creditors are given the opportunity to file claims against the estate for outstanding debts. If a dispute should arise, this process can take longer. WHO IS NOTIFIED WHEN PROBATE BEGINS? Under Ohio law, all heirs, beneficiaries, and executors named in a decedent’s will shall be informed that probate is to begin. This notice will include the date, time, and location of the case’s initial hearing, unless notice is waived by the heirs. HOW MUCH DOES PROBATE COST? Ohio has set forth certain guidelines for attorney and executor fees in regards to probate, though the courts may order higher fees for particularly complex cases. Executors are entitled to a commission that is set by statute.  An Executor is entitled to a commission of 4% of the first $100,000 of the estate, 3% of the next $300,000, and 2% on everything above $400,000.00.  Attorney fees are controlled by the Rules of Professional Conduct, but the Courts do publish guidelines, which are 5.5% on the first $50,000, 4.5% on the next $50,000, 3.5% on the next $300,000, and 2% of the balance. WHAT HAPPENS WHEN SOMEONE DIES WITHOUT A WILL? If the decedent died without a will but a court case is needed, the court shall appoint an administrator to manage the estate during the probate process. If a person wishes to act as the administrator, he or she must file an Application with the Probate court. WHEN THERE IS NO WILL WHO SERVES AS THE ADMINISTRATOR? The administrator is usually the decedent’s spouse, son or daughter, or close relative such as a parent or sibling. DO ALL ESTATES REQUIRE PROBATE? No, not all estates have to be probated. You may or may not need to go to probate court to transfer title of the property of the deceased. Determining if an estate will require probate depends on many issues such as the amount of money involved, the type of property involved, and who is claiming the property. DO ALL ASSETS PASS THROUGH PROBATE? Not all assets pass through probate. Essentially, those assets that pass through a will are probated. Those assets that don’t pass through probate include assets held in a trust, life insurance policies with beneficiary designations, payable on death bank accounts, transfer on death securities, retirement accounts, and real estate held jointly with right of survivorship. Since all of these assets pass automatically to the beneficiary, probate is not necessary. Paul Kellogg is an attorney in Cincinnati with the Phillips Law Firm, Inc. Paul’s practice focuses on providing comprehensive estate planning and probate services to families and business owners, as well as providing guidance to entrepreneurs and businesses on a wide variety of transactions and disputes.  He can be reached at (513) 985-2500 or via email at [email protected].   Please explore Paul’s other articles on estate planning and business on the Phillips Law Firm Blog page.    For an initial consultation contact us at (513) 985-2500 or email us at [email protected] or click Chat Now!® to get started immediately.