How is the probate process started?
Before you jump into starting the probate process, it is important to understand the purpose of probate and to determine if probate will be needed.
Probate is the process by which we settle the final affairs of an individual who has passed away by paying the final bills and distributing the assets to the appropriate people. An individual who dies without a will is said to have died intestate and his or her assets will be distributed according to the state’s law of decent and distribution. The person in charge of an intestate estate is an Administrator. An individual who dies with a will has died testate and his or her assets will be distributed according to the terms of the will by the Executor named in the will.
Probate is not always necessary because many assets can be transferred without going through probate. These assets include retirement accounts (401(k)’s and IRA’s) that have a named beneficiary, life insurance payable to a beneficiary, assets owned jointly with another person, and accounts that contain a transfer on death or payable on death designation. These types of assets are payable directly to the named individual or surviving joint owner without going through probate.
Probate is required for assets the individual owned in their own name that did not have a joint owner or a beneficiary. These types of assets can only be transferred after an estate is opened with the probate court. The estate is opened by filing the will with the probate court (if there is a will) along with an application for the Executor or Administrator to have authority to administer the estate. Once these initial documents are filed with the court, the Executor or Administrator is required to notify all of the decedent’s closest living relatives, and anyone named in the will that the probate process has been started.
After the Executor or Administrator has been appointed, he or she is required to follow the Probate Court’s rules for preparing and filing an Inventory of the estate’s assets, paying creditors, distributing assets, and filing a full and final accounting of monetary activities with the Court. The process can be confusing, overwhelming, time consuming, and frustrating if you are not familiar with the legal process required in probate court. Hiring an experienced probate attorney can eliminate a lot of aggravation and potential liability by providing guidance and expertise on the probate court process. If you are worried about paying a lawyer to help you with the probate court process, be aware that in Ohio the legal fees are deducted from the estate after approval by the probate court. Generally, neither the Executor nor the Administrator are required to pay legal fees out of his or her pocket directly to the attorney providing assistance.
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 serving as outside general counsel to entrepreneurs, real estate investors, and businesses where he provides guidance and advice 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, real estate, and business on the Phillips Law Firm Blog page.
The article is for educational and informational purposes only and does not constitute legal advice. Anyone contemplating taking legal action is urged to obtain proper legal advice from an attorney licensed in your particular jurisdiction.